Article 80 of the Uniform Code of Military Justice makes it an offense to attempt to commit any crime under the Code. A natural question is what happens when the crime the accused was trying to commit could never have succeeded because of some fact the accused did not know. If the intended theft targets an empty pocket, or the intended sale of contraband involves a substance that turns out to be harmless, can the service member still be convicted of an attempt? Military law answers yes in most of these situations, because factual impossibility is generally not a defense. This article explains why, and it distinguishes the situations where impossibility can matter.
The elements of attempt under Article 80
An attempt under Article 80 has four core components. The accused did a certain overt act. The act was done with the specific intent to commit a particular offense under the Code. The act amounted to more than mere preparation. And the act apparently tended to bring about the commission of the intended offense, even if it failed or was prevented. The emphasis on intent and on conduct that goes beyond preparation is the key to understanding how impossibility is treated.
Attempt liability punishes culpable purpose carried into action. The law is concerned with a person who has decided to commit a crime and has taken real steps toward it. Whether the crime was ultimately completed is not the measure of blameworthiness, because the accused has already demonstrated both the criminal intent and the willingness to act on it.
Why factual impossibility does not excuse the attempt
Factual impossibility exists when the accused intended to commit a crime and took steps toward it, but some fact unknown to the accused made completion impossible. The classic illustration is the pickpocket who reaches into a pocket to steal, only to find it empty. The would-be thief has the intent to steal and has performed an overt act going beyond preparation. The only reason no larceny was completed is the unforeseen emptiness of the pocket.
Military law treats this as attempted larceny. Factual impossibility is not a defense, because the accused did everything required to manifest the criminal purpose and to act on it. The failure resulted from circumstances outside the accused’s knowledge and control, not from any lack of intent or effort. To excuse the attempt because of such a fortuity would reward the accused for a lucky accident while ignoring the genuine danger and culpability the conduct displayed.
The same reasoning applies across a range of scenarios. A member who fires at a place where the intended victim is believed to be, but who has already left, can be guilty of attempted assault or worse. A member who tries to buy what he believes are illegal drugs that turn out to be a legal substance can be guilty of an attempt, because the member intended the criminal transaction and acted on that intent. In each case the impossibility is factual, arising from a hidden circumstance, and it does not negate the intent or the overt act.
The contrast with legal impossibility
The analysis changes when the impossibility is legal rather than factual. Legal impossibility exists when what the accused set out to do would not be a crime at all, even if every fact were exactly as the accused believed. If the completed act is simply not an offense, there is nothing to attempt, because attempt liability requires an intent to commit an actual crime.
The distinction can be subtle but it is decisive. Factual impossibility asks whether a hidden fact prevented the completion of conduct that would have been criminal. Legal impossibility asks whether the conduct the accused aimed at was ever criminal in the first place. Only the latter can defeat an attempt charge, because in the former the accused intended and pursued a genuine offense, while in the latter the accused pursued something the law does not forbid.
Military appellate practice reflects this principle. Courts have rejected impossibility arguments where the accused intended a real offense and acted toward it, treating the impossibility of success as no defense. In United States v. Roeseler, 55 M.J. 286, the court addressed attempted conspiracy to commit murder where the intended victims were fictitious, and it concluded that the impossibility of murdering nonexistent victims was not a defense to the attempt or to the conspiracy, and therefore not a defense to the attempted conspiracy. The lesson is that the unattainability of the criminal objective, standing alone, does not absolve a service member who intended that objective and acted to achieve it.
Why the rule makes sense in the military context
The armed forces have a strong interest in deterring those who set out to commit crimes, regardless of whether chance defeats them. A member who tries to steal, to sell contraband, or to harm another has shown a readiness to break the law and to endanger good order and discipline. The fact that an empty pocket, a relocated target, or a harmless substance happened to prevent the completed offense does not make the conduct any less dangerous or the member any less culpable. Article 80 captures that culpability by punishing the attempt itself.
Practical takeaways
A service member can be convicted of attempt under Article 80 even when the underlying crime was factually impossible to complete, because factual impossibility is not a defense. What matters is whether the member specifically intended to commit a real offense and performed an overt act, beyond mere preparation, that apparently tended to accomplish it. The narrow exception is legal impossibility, which arises only when the intended conduct would not have been a crime even if completed, and which does defeat the charge because there was no genuine offense to attempt.
For an accused, this means an impossibility defense will rarely succeed unless counsel can show that what the accused aimed to do was simply not criminal. Far more often, the defense lies elsewhere, in challenging the proof of specific intent or in showing that the conduct never advanced beyond preparation. Because these distinctions are technical and outcome determinative, any service member facing an Article 80 attempt charge should consult qualified military defense counsel to evaluate which theory, if any, applies to the facts.
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.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.