Chapter 7: Article 82, UCMJ Solicitation
§ 7-1
Elements
§ 7-2
Discussion
§ 7-3
Specific Intent Issues
§ 7-4
Pleading Issues
§ 7-5
Practice Pointers and Common Defenses
§ 7-6
Lack of Specific Intent
§ 7-7
Failure to State an Offense
§ 7-8
List of Standard Instructions
§ 7-9
Maximum Punishments and Lesser Included Offenses
§ 7-1 – Elements
(1) That the accused solicited or advised a certain person or persons to commit any of the four offenses named in Article 82 (Desertion, Mutiny, Misbehavior before the enemy, or Sedition); and
(2) That the accused did so with the intent that the offense actually be committed.
(3) If the offense solicited or advised was attempted or committed add, that the offense was committed/attempted as the proximate result of the solicitation.
§ 7-2 – Discussion
While the law of attempts gives law enforcement the opportunity to prevent a crime before it is completed, and conspiracy criminalizes an agreement to commit a crime, the law of solicitation criminalizes the invitation.
Depending on the alleged offense, the government can charge a solicitation under Article 82 or Article 134. When the UCMJ was first drafted, Article 82 prevented service members from soliciting desertion under Article 85, mutiny or sedition under Article 94, or misbehavior before the enemy under Article 99. Article 134 broadened the offense of solicitation to include “certain offenses under the code other than one of the four offenses named in Article 82.”
§ 7-3 – Specific Intent Issues
The second element indicates that solicitation is a specific intent offense.[1] The government was demonstrate that the accused had the specific intent to solicit another person to, in fact, commit an offense under the UCMJ.
The offense is completed when the solicitation is made. It makes no difference whether the person solicited agreed to act upon the solicitation. The solicitation may occur by verbal or nonverbal communication. The essential question is whether the act or conduct my reasonably be construed as a serious request or advice to commit an offense.
§ 7-4 – Pleading Issues
If the person solicited actually commits the requested offense, the solicitor may be liable as a principal under Article 77. Additionally, when an Article 134 offense is charged under Article 82, the amendment is a minor change.[2]
§ 7-5 – Practice Pointers and Common Defenses
§ 7-6 – Lack of Specific Intent
Like attempt and conspiracy cases, defense counsel should immediately examine the client’s specific intent. Benchbook instruction 5-17 “Evidence Negating Mens Rea” is helpful, particularly in cases where there is no lack of mental responsibility defense. Expert witnesses can often help defense counsel examine the accused’s mental condition before and after the alleged offenses.
Defense counsel will want to pay careful attention to:
-Mental diseases (e.g. mood disorders, psychotic disorders, etc.)
-Mental defects (e.g. traumatic brain injury)
-Mental impairments (e.g. alcohol or drug abuse)
-Mental conditions (e.g. traumatic events – heat of sudden passion)
-Mental deficiency (e.g. low intelligence)
-Character or behavior disorder (e.g. Asperger’s Syndrome, personality disorders)
-Any evidence of consent, where applicable
§ 7-8 – Standard Instructions
Standard Instructions
DA Pamphlet 27-9
3-4-1. Attempts
3-6-1. Solicitation of Desertion or Mutiny
3-6-2. Solicitation of Misbehavior before the Enemy or Sedition
5-11-1. Ignorance or Mistake – Where Specific Intent or Actual Knowledge is in Issue
5-12. Voluntary Intoxication
5-14. Character.
5-17. Evidence Negating Mens Rea (this instruction could be required even when evidence of the defense of lack of mental responsibility is not presented).[3]
§ 7-9 –Maximum Punishments
The maximum punishment for a solicitation to desert is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years. A solicitation to mutiny, sedition, or misbehavior before the enemy allows for a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years.
[1] United States v. Taylor, 23 M.J. 314 (C.M.A. 1987); United States v. Benton, 7 M.J. 606 (N.C.M.R. 1979).
[2] United States v. Brewster, 32 M.J. 591 (A.C.M.R. 1991).
[3] Ellis v. Jacob, 26 M.J. 10 (C.M.A. 1988)
Elements
§ 7-2
Discussion
§ 7-3
Specific Intent Issues
§ 7-4
Pleading Issues
§ 7-5
Practice Pointers and Common Defenses
§ 7-6
Lack of Specific Intent
§ 7-7
Failure to State an Offense
§ 7-8
List of Standard Instructions
§ 7-9
Maximum Punishments and Lesser Included Offenses
§ 7-1 – Elements
(1) That the accused solicited or advised a certain person or persons to commit any of the four offenses named in Article 82 (Desertion, Mutiny, Misbehavior before the enemy, or Sedition); and
(2) That the accused did so with the intent that the offense actually be committed.
(3) If the offense solicited or advised was attempted or committed add, that the offense was committed/attempted as the proximate result of the solicitation.
§ 7-2 – Discussion
While the law of attempts gives law enforcement the opportunity to prevent a crime before it is completed, and conspiracy criminalizes an agreement to commit a crime, the law of solicitation criminalizes the invitation.
Depending on the alleged offense, the government can charge a solicitation under Article 82 or Article 134. When the UCMJ was first drafted, Article 82 prevented service members from soliciting desertion under Article 85, mutiny or sedition under Article 94, or misbehavior before the enemy under Article 99. Article 134 broadened the offense of solicitation to include “certain offenses under the code other than one of the four offenses named in Article 82.”
§ 7-3 – Specific Intent Issues
The second element indicates that solicitation is a specific intent offense.[1] The government was demonstrate that the accused had the specific intent to solicit another person to, in fact, commit an offense under the UCMJ.
The offense is completed when the solicitation is made. It makes no difference whether the person solicited agreed to act upon the solicitation. The solicitation may occur by verbal or nonverbal communication. The essential question is whether the act or conduct my reasonably be construed as a serious request or advice to commit an offense.
§ 7-4 – Pleading Issues
If the person solicited actually commits the requested offense, the solicitor may be liable as a principal under Article 77. Additionally, when an Article 134 offense is charged under Article 82, the amendment is a minor change.[2]
§ 7-5 – Practice Pointers and Common Defenses
§ 7-6 – Lack of Specific Intent
Like attempt and conspiracy cases, defense counsel should immediately examine the client’s specific intent. Benchbook instruction 5-17 “Evidence Negating Mens Rea” is helpful, particularly in cases where there is no lack of mental responsibility defense. Expert witnesses can often help defense counsel examine the accused’s mental condition before and after the alleged offenses.
Defense counsel will want to pay careful attention to:
-Mental diseases (e.g. mood disorders, psychotic disorders, etc.)
-Mental defects (e.g. traumatic brain injury)
-Mental impairments (e.g. alcohol or drug abuse)
-Mental conditions (e.g. traumatic events – heat of sudden passion)
-Mental deficiency (e.g. low intelligence)
-Character or behavior disorder (e.g. Asperger’s Syndrome, personality disorders)
-Any evidence of consent, where applicable
§ 7-8 – Standard Instructions
Standard Instructions
DA Pamphlet 27-9
3-4-1. Attempts
3-6-1. Solicitation of Desertion or Mutiny
3-6-2. Solicitation of Misbehavior before the Enemy or Sedition
5-11-1. Ignorance or Mistake – Where Specific Intent or Actual Knowledge is in Issue
5-12. Voluntary Intoxication
5-14. Character.
5-17. Evidence Negating Mens Rea (this instruction could be required even when evidence of the defense of lack of mental responsibility is not presented).[3]
§ 7-9 –Maximum Punishments
The maximum punishment for a solicitation to desert is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years. A solicitation to mutiny, sedition, or misbehavior before the enemy allows for a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years.
[1] United States v. Taylor, 23 M.J. 314 (C.M.A. 1987); United States v. Benton, 7 M.J. 606 (N.C.M.R. 1979).
[2] United States v. Brewster, 32 M.J. 591 (A.C.M.R. 1991).
[3] Ellis v. Jacob, 26 M.J. 10 (C.M.A. 1988)
