When two or more service members agree to commit an offense and then take steps toward carrying it out, prosecutors often have a choice of charging theories. Two of the most common are attempt under Article 80 and conspiracy under Article 81. A frequent question is whether the government can charge both for what looks like a single course of conduct, or whether it must pick one. The answer is that attempt and conspiracy can ordinarily both be charged for the same underlying conduct, because they punish distinct wrongs and require proof of different facts. This post addresses that specific question of dual charging between attempt and conspiracy. It does not address whether a conspiracy can be charged where the object crime is not a UCMJ offense, or where an overt act occurred abroad, which are separate problems with their own answers.
Two offenses, two different wrongs
Article 80, codified at 10 U.S.C. section 880, punishes an attempt, which is an act done with specific intent to commit an offense, amounting to more than mere preparation, and tending to effect its commission. Article 81, codified at 10 U.S.C. section 881, punishes a conspiracy, which is an agreement between two or more persons to commit an offense, where at least one conspirator performs an overt act to effect the object of the agreement.
The two target different evils. Conspiracy punishes the agreement itself, the danger that arises when people combine to pursue a crime. The law treats group criminality as a distinct harm because coordinated action is more likely to succeed and harder to detect. Attempt punishes the individual’s dangerous progress toward completing a specific offense. One can attempt a crime entirely alone; one cannot conspire alone, because conspiracy requires at least two participants. Conversely, one can conspire without ever attempting the crime, because the agreement plus a single overt act completes the conspiracy even if no substantial step toward the substantive offense follows.
Why both may be charged
Because the offenses require proof of different elements, charging both does not amount to charging the same offense twice. Conspiracy requires an agreement and a second participant, which attempt does not. Attempt requires an overt act amounting to more than mere preparation that tends to effect the substantive offense, which is a more demanding act requirement than the overt act sufficient for conspiracy, where the overt act need not itself be unlawful and need only manifest that the agreement is at work. A settled feature of conspiracy law is that the conspiracy does not merge into the completed or attempted substantive offense. The agreement remains a separate, punishable wrong even after the conspirators act on it.
That is why a defendant may properly be found guilty of both conspiracy to commit an offense and an attempt to commit the same offense. The two convictions rest on separate proof: one on the unlawful combination, the other on the individual’s overt step toward completion.
The multiplicity and unreasonable-multiplication limits
Saying the government may charge both is not the same as saying it may do so without limit. Two doctrines police the line.
The first is multiplicity, which is a double-jeopardy concept. Two offenses are multiplicious only if one is necessarily included in the other, meaning each does not require proof of a fact the other does not. Under that test, attempt and conspiracy are generally not multiplicious, because each requires proof of a fact the other does not: conspiracy requires an agreement and a co-conspirator, while attempt requires an overt act tending to effect the offense by the accused. Because the elements diverge, convictions for both typically survive a multiplicity challenge.
The second is the unreasonable multiplication of charges, a uniquely military doctrine that is broader and more flexible than multiplicity. Even when offenses are legally separate, a military judge may grant relief if the government has piled on charges in a way that exaggerates the accused’s criminality or misrepresents the gravity of the conduct. Factors include whether the accused objected, whether the charges are aimed at substantially the same act, whether they unreasonably increase the punishment exposure, and whether they overstate the seriousness of what the accused did. A defense attorney facing both an attempt and a conspiracy specification arising from one episode will often raise this doctrine, asking the judge to consolidate the offenses for findings or sentencing even if dismissal is not warranted.
How this plays out in practice
In a typical case, the government charges conspiracy to capture the agreement among the participants and charges attempt to capture how far the accused personally went toward the crime. Both can stand if the proof supports each. At sentencing, the judge will consider whether the punishment fairly reflects the conduct rather than double-counting a single episode, and the defense will press for relief if it does not. The result is that dual charging is permissible as a matter of law, but the sentence is shaped to avoid punishing the accused twice for what is, in substance, one criminal endeavor.
Bottom line
Attempt under Article 80 and conspiracy under Article 81 can both be charged for the same underlying conduct in a military prosecution, because they punish different wrongs and require proof of different facts, and conspiracy does not merge into the attempt. The guardrails are multiplicity, which rarely bars the dual charge given the divergent elements, and the unreasonable multiplication of charges, which gives the military judge discretion to consolidate the offenses so that the charging decision does not overstate the accused’s criminality.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
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