Article 81 — Conspiracy | Manual for Courts-Martial

Part IV · Punitive Articles

Article 81. Conspiracy · MCM ¶ 5

2024 Manual for Courts-Martial, United States

(a) Text of statute.

(a) Any person subject to this chapter who conspires with any other person to commit an offense under this chapter shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct.

(b) Any person subject to this chapter who conspires with any other person to commit an offense under the law of war, and who knowingly does an overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a court-martial or military commission may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a court-martial or military commission may direct.

(b) Elements.

(1) Conspiracy.

(a) That the accused entered into an agreement with one or more persons to commit an offense under the UCMJ; and

(b) That, while the agreement continued to exist, and while the accused remained a party to the agreement, the accused or at least one of the co-conspirators performed an overt act for the purpose of bringing about the object of the conspiracy.

(2) Conspiracy when offense is an offense under the law of war resulting in the death of one or more victims.

(a) That the accused entered into an agreement with one or more persons to commit an offense under the law of war;

(b) That, while the agreement continued to exist, and while the accused remained a party to the agreement, the accused knowingly performed an overt act for the purpose of bringing about the object of the conspiracy; and

(1) Co-conspirators. Two or more persons are required in order to have a conspiracy. Knowledge of the identity of co-conspirators and their particular connection with the criminal purpose need not be established. The accused must be subject to the UCMJ, but the other co-conspirators need not be. A person may be guilty of conspiracy although incapable of committing the intended offense. For example, a bedridden conspirator may knowingly furnish the car to be used in a robbery. The joining of another conspirator after the conspiracy has been established does not create a new conspiracy or affect the status of the other conspirators. However, the conspirator who joined an existing conspiracy can be convicted of this offense only if, at or after the time of joining the conspiracy, an overt act in furtherance of the object of the agreement is committed.

(2) Agreement. The agreement in a conspiracy need not be in any particular form or manifested in any formal words. It is sufficient if the minds of the parties arrive at a common understanding to accomplish the object of the conspiracy, and this may be shown by the conduct of the parties. The agreement need not state the means by which the conspiracy is to be accomplished or what part each conspirator is to play.

(3) Object of the agreement. The object of the agreement must, at least in part, involve the commission of one or more offenses under the UCMJ. An agreement to commit several offenses is ordinarily but a single conspiracy. Some offenses require two or more culpable actors acting in concert. There can be no conspiracy where the agreement exists only between the persons necessary to commit such an offense. Examples include dueling, bigamy, extramarital sexual conduct, and bribery.

(4) Overt act.

(a) The overt act must be independent of the agreement to commit the offense; must take place at the time of or after the agreement; must be done by one or more of the conspirators, but not necessarily the accused; and must be done to effectuate the object of the agreement.

(b) The overt act need not be in itself criminal, but it must be a manifestation that the agreement is being executed. Although committing the intended offense may constitute the overt act, it is not essential that the object offense be committed. Any overt act is enough, no matter how preliminary or preparatory in nature, as long as it is a manifestation that the agreement is being executed.

(c) An overt act by one conspirator becomes the act of all without any new agreement specifically directed to that act and each conspirator is equally guilty even though each does not participate in, or have knowledge of, all of the details of the execution of the conspiracy.

(5) Liability for offenses. Each conspirator is liable for all offenses committed pursuant to the conspiracy by any of the co-conspirators while the conspiracy continues and the person remains a party to it.

(6) Withdrawal. A party to the conspiracy who abandons or withdraws from the agreement to commit the offense before the commission of an overt act by any conspirator is not guilty of conspiracy. An effective withdrawal or abandonment must consist of affirmative conduct which is wholly inconsistent with adherence to the unlawful agreement and which shows that the party has severed all connection with the conspiracy. A conspirator who effectively abandons or withdraws from the conspiracy after the performance of an overt act by one of the conspirators remains guilty of conspiracy and of any offenses committed pursuant to the conspiracy up to the time of the abandonment or withdrawal. However, a person who has abandoned or withdrawn from the conspiracy is not liable for offenses committed thereafter by the remaining conspirators. The withdrawal of a conspirator from the conspiracy does not affect the status of the remaining members.

(7) Factual impossibility. It is not a defense that the means adopted by the conspirators to achieve their object, if apparently adapted to that end, were actually not capable of success, or that the conspirators were not physically able to accomplish their intended object.

(8) Conspiracy as a separate offense. A conspiracy to commit an offense is a separate and distinct offense from the offense which is the object of the conspiracy, and both the conspiracy and the consummated offense which was its object may be charged, tried, and punished. The commission of the intended offense may also constitute the overt act which is an element of the conspiracy to commit that offense.

(9) Special conspiracies under Article 134. The United States Code prohibits conspiracies to commit certain specific offenses which do not require an overt act. These conspiracies should be charged under Article 134. Examples include conspiracies to impede or injure any federal officer in the discharge of duties under 18 U.S.C. § 372, conspiracies against civil rights under 18 U.S.C. § 241, and certain drug conspiracies under 21 U.S.C. § 846. See subparagraph 91.c.(4)(a)(1)(iii).

(d) Maximum punishment.

(1) Offenses under the UCMJ. Any person subject to the UCMJ who is found guilty of conspiracy shall be subject to the maximum punishment authorized for the offense that is the object of the conspiracy, except that in no case shall the death penalty be imposed, subject to subparagraph d.(2) of this paragraph.

(2) Offenses under the law of war resulting in the death of one or more victims. Any person subject to the UCMJ who conspires with any other person to commit an offense under the law of war, and who knowingly does an overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a court-martial or military commission may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a court-martial or military commission may direct.

(e) Sample specification.

(1) Conspiracy. In that ________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____20__, conspire with _______ (and______) to commit an offense under the Uniform Code of Military Justice, to wit: (larceny of ______, of a value of (about) $____, the property of _____), and in order to effect the object of the conspiracy the said ______ (and _____) did _____.

(2) Conspiracy when an offense is an offense under the law of war resulting in the death of one or more victims. In that ________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____20__, conspire with _______ (and______) to commit an offense under the law of war, to wit: (murder of ________), and in order to effect the object of the conspiracy the said _______ knowingly did ______ resulting in the death of _______.

Information on this tab is reproduced from the U.S. Army Military Judges’ Benchbook (Electronic Benchbook v2.70, updated 2026-05-26). It is for informational purposes only to compare to the text on the Manual for Courts-Martial on the MCM tab. Always check the current EBB to make sure you’re reviewing the most recent information.

3a-5-1CONSPIRACY

NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM. For conspiracy offenses, the confinement category is dependent on the underlying offense.

Maximum punishment

(1) Conspiracy and Conspiracy when offense is an offense under the law of war (not resulting in death): The maximum punishment is that which is authorized for the offense that is the object of the conspiracy, except that in no case shall the death penalty be imposed.

(2) Conspiracy when offense is an offense under the law of war (resulting in death): Death.

b. SAMPLE SPECIFICATIONS:

Conspiracy:

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, conspire with __________ (and __________) to commit an offense under the Uniform Code of Military Justice, to wit: (larceny of __________, of a value of (about) $__________, the property of __________), and in order to effect the object of the conspiracy the said __________ (and __________) did __________.

Conspiracy when offense is an offense under the law of war (resulting in death):

In that _____________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about __________, conspire with _______ (and __________ ) to commit an offense under the law of war, to wit: (murder of __________ ), and in order to effect the object of the conspiracy the said ___________ knowingly did ___________ resulting in the death of _____________.

Elements

Conspiracy:

(1) That (state the time and place alleged), the accused entered into an agreement with (state the name(s) of the alleged co-conspirator(s)) to commit (state the name of the offense allegedly conspired), an offense under the Uniform Code of Military Justice; and

(2) That, while the agreement continued to exist and while the accused remained a party to the agreement, (state name of accused or co-conspirator who allegedly performed overt act) performed (one or more of) the overt act(s) alleged, that is, (state the alleged overt act(s)), for the purpose of bringing about the object of the conspiracy.

Conspiracy when offense is an offense under the law of war:

(2) That, while the agreement continued to exist and while the accused remained a party to the agreement, the accused knowingly performed (one or more of) the overt act(s) alleged, that is, (state the alleged overt act(s)), for the purpose of bringing about the object of the conspiracy; [and]

NOTE 2. Give the third element below if death to a victim is alleged:

[(3)] That death resulted to (state the name(s) of the alleged victim(s)).

The elements of the offense which the accused is charged with conspiracy to commit are as follows:

NOTE 3. Elements listed. List the elements here, carefully tailoring them to be relevant to a conspiracy to commit such offense.

Definitions & other instructions

Proof that the offense of (state the name of the offense allegedly conspired) actually occurred is not required. However, it must be proved beyond a reasonable doubt that the agreement included every element of the offense of (state the name of the offense allegedly conspired).

(The agreement in a conspiracy does not have to be in any particular form or expressed in formal words. It is sufficient if the minds of the parties reach a common understanding to accomplish the object of the conspiracy, and this may be proved by the conduct of the parties. The agreement does not have to express the manner in which the conspiracy is to be carried out or what part each conspirator is to play.)

(The overt act required for this offense does not have to be a criminal act, but it must be a clear indication that the conspiracy is being carried out.)

(The overt act may be done either at the time of or following the agreement.)

(The overt act must clearly be independent of the agreement itself; that is, it must be more than merely the act of entering into the agreement or an act necessary to reach the agreement.)

(You are advised that there is no requirement (that all co-conspirators be named in the specification) (or) (that all co-conspirators be subject to military law).)

NOTE 4. More than one overt act alleged. When more than one overt act is alleged, the members should also be instructed that with respect to the overt acts alleged, their findings should specify only the overt act or acts, if any, of which they are convinced beyond a reasonable doubt. The following instruction may be appropriate in such a case:

You will note that more than one overt act has been listed in the specification. You may find the accused guilty of conspiracy only if you are convinced beyond a reasonable doubt that at least one of the overt acts described in the specification has been committed. Accordingly, if you find beyond a reasonable doubt that the accused (or a co-conspirator) committed one (or more) of the described overt acts, but not (all) (both) of them, your findings should reflect this by appropriate exceptions.

NOTE 5. Multiple overt acts alleged; variance. When multiple overt acts are alleged, the preceding instruction should be followed by the applicable portions of Instruction 7-15, Variance—Findings by Exceptions and Substitutions.

NOTE 6. Abandonment or withdrawal raised. The following additional instruction should be given when an issue arises as to whether the accused may have abandoned or withdrawn from the alleged conspiracy:

There has been some evidence that the accused may have abandoned or withdrawn from the charged conspiracy. (Here the military judge may specify significant evidentiary factors bearing upon the issue and indicate the respective contentions of all counsel.)

An effective (abandonment) (or) (withdrawal) requires some action by the accused which is completely inconsistent with support for the unlawful agreement and which shows that the accused is no longer part of the conspiracy. If, at the time of the overt act, the accused is no longer a part of the conspiracy, the accused cannot be convicted of the offense. In other words if the accused (abandoned) (or) (withdrew from) the agreement before any conspirator committed an overt act, the accused cannot be convicted of conspiracy.

You may find the accused guilty of conspiracy only if you are satisfied beyond a reasonable doubt that the accused did not (abandon) (or) (withdraw from) the conspiracy before the commission of an overt act by any of the conspirators.

NOTE 7. Maximum punishment affected by value. If the maximum punishment is affected by an essential ingredient, such as value of property, damage, or amount involved, such matter should be included when stating the elements of the allegedly intended offense. Instruction 7-16, Variance - Value, Damage, or Amount, should be given when applicable.

NOTE 8. Burglary or housebreaking as object of conspiracy. If burglary or housebreaking is the object of the alleged conspiracy, additional instructions should be given on the relevant elements of the offense allegedly intended to be committed within the structure involved. Terms such as “breaking,” “entering,” and “dwelling house” should be defined when applicable.

NOTE 9. Vicarious liability in issue. If the accused is charged with criminal responsibility for a consummated offense actually committed by a co-conspirator, see instructions on vicarious liability at Instruction 7-1-4.

NOTE 10. Conspiracy to violate the law of war alleged. Whether a law is a “law of war” is an interlocutory matter to be determined by the military judge and is not submitted to the members. When satisfied that the law is a “law of war,” the military judge should instruct that the matter has been legally determined.

As a matter of law, the offense the accused is alleged to have conspired to commit, that is [state the law of war offense alleged], is a law of war.

NOTE 11. Conspiracy to violate the law of war resulting in death alleged. When cause of death is in issue in a conspiracy to violate the law of war, the military judge should refer to Instruction 5-5, if necessary, and give an appropriately tailored instruction. The below instruction may also be appropriate.

If you are not convinced that the alleged conspiracy to violate the law of war resulted in death, but you are convinced that the other elements of the offense have been proven, you may find the accused guilty by excepting the language alleging that the conspiracy to violate the law of war resulted in death.

Source: Instruction 3a-5-1 · view original on jagcnet.army.mil