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    • Introduction
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    • Article 82 Solicitation
    • Article 85 Desertion
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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)

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The information on this page is informational in nature. Nothing on this or associated pages should be construed as legal advice for a particular case. Likewise, the information on this website does not constitute the creation of an attorney-client relationship. No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.
  • Practice Areas
    • Correcting Military Records >
      • Evaluation Report Appeals
      • Reprimand Appeals
      • Family Advocacy Program Appeals
      • Discharge Review Boards
      • Cadet Misconduct
      • Titling Actions
      • Military Protective Orders
    • Separation Boards
    • Military Medical Malpractice Claims
    • Forms, Downloads, and Regulations
  • Military Crimes and Defenses
    • Military Law >
      • Court-martial Information >
        • Know Your Rights
        • Court-Martial Rules >
          • Pretrial Confinement
          • Unlawful Command Influence
          • Article 31 Violation
          • Military Rule of Evidence 412
          • Involuntary Statements
          • Failure to State an Offense
          • Wheeler Factors
      • Court-Martial Defense >
        • Military Sexual Assault Defense
        • Military Drug Defense >
          • Drug Detection Windows
          • Marijuana
          • Cocaine
          • Morphine and Heroin
        • Disrespect Offenses
        • Conspiracy Cases
        • False Statements >
          • Obstruction of Justice
        • Use of Force
        • Assault Cases
        • Conduct Unbecoming
      • Court-Martial Appeals >
        • Petitions for a New Trial
        • Insufficient Evidence
    • Introduction
    • Article 77 Principles
    • Article 78 Accessory After the Fact
    • Article 79 Lesser Included Offenses
    • Article 80 Conspiracy
    • Article 81 Attempts
    • Article 82 Solicitation
    • Article 85 Desertion
    • Article 86 AWOL
    • Article 88 Contempt Towards Officials
    • Article 92 Failure to Obey an Order
    • Article 93 Maltreatment
    • Article 107 False Official Statement
    • Article 112a Wrongful Use of a Controlled Substance
    • Article 119 Manslaughter
    • Article 119b Child Endangerment
    • Article 121 Larceny or Wrongful Appropriation
    • Article 125 Kidnapping
    • Article 133 Conduct Unbecoming
    • Article 134 Bribery and Graft
    • Article 134 Indecent Language
    • Article 134 Obstruction of Justice
  • Firm History
    • Films
    • Books
    • Sketches
    • My Lai
    • Abu Ghraib
    • Haditha
    • MARSOC
    • The Stryker 5
    • Gary Myers
  • Results
  • Blog