Article 82 of the Uniform Code of Military Justice is the solicitation offense. It punishes a service member who solicits or advises another person to commit an offense under the code. Because solicitation is an inchoate crime, meaning the offense is complete upon the act of soliciting regardless of whether the solicited crime is ever carried out, convictions under Article 82 raise a distinctive set of appellate questions. A service member convicted under this article and pursuing review before a service Court of Criminal Appeals or, ultimately, the Court of Appeals for the Armed Forces, will often litigate issues that flow directly from the elements and structure of the offense. This article surveys the kinds of issues that commonly arise, without predicting any particular outcome.
Understanding the Offense First
To see why certain appellate issues recur, it helps to recall what Article 82 requires. Under 10 U.S.C. 882, a person subject to the code who solicits or advises another to commit an offense under the code may be punished as a court-martial directs. The statute treats certain solicitations more severely. Soliciting or advising another to commit desertion under Article 85, mutiny or sedition under Article 94, or misbehavior before the enemy under Article 99 carries heightened consequences, and if the solicited offense is attempted or committed, the punishment can match that of the underlying offense. The gravamen of the crime is the act of soliciting or advising with the intent that the other person commit the offense. The crime is complete when the solicitation is communicated, whether or not anyone acts on it.
Legal and Factual Sufficiency of the Evidence
The most common category of appellate challenge in any military conviction, and certainly in solicitation cases, is the sufficiency of the evidence. Military appellate courts review convictions for both legal sufficiency, asking whether a rational factfinder could have found the elements proven beyond a reasonable doubt, and, within the scope permitted by current law, factual sufficiency.
In an Article 82 case, sufficiency challenges tend to focus on whether the accused’s words actually amounted to a solicitation rather than mere talk, anger, or an expression of opinion. Did the statement seriously seek to induce another to commit an offense, or was it idle venting, a joke, or hyperbole? Whether a communication crosses the line into a genuine solicitation is fact intensive, and that is precisely what makes it fertile ground for appeal.
Intent and Mens Rea
Closely related to sufficiency is the question of intent. Solicitation requires that the accused intended for the other person to commit the offense. Appellate arguments frequently contend that the government failed to prove this specific intent, or that the military judge or panel may have convicted on a lesser showing. A defendant may argue that the evidence showed careless or provocative speech without the purpose of actually causing the solicited crime to occur. Because intent is usually proven by inference from words and circumstances, disputes over whether those inferences were warranted are a recurring appellate theme.
Instructional Error
When a case is tried before a panel, the military judge must correctly instruct the members on the elements of the offense, including the intent requirement and the meaning of solicitation. Errors or omissions in those instructions are a frequent basis for appeal. A defendant may argue that the instructions failed to convey that the communication had to be a genuine solicitation made with the intent that the offense be committed, or that the instructions blurred the line between protected or merely offensive speech and criminal solicitation. Instructional issues are significant because they go to whether the factfinder applied the correct legal standard.
Multiplicity and Unreasonable Multiplication of Charges
Because solicitation can overlap conceptually with other inchoate offenses such as conspiracy and attempt, and because a single course of conduct may be charged in several ways, appellate counsel often raise multiplicity and unreasonable multiplication of charges. The argument is that the accused was punished more than once for what was essentially the same wrong, or that charging the same conduct under multiple theories exaggerated the criminality of a single act. Where a solicitation is charged alongside the underlying or related offense, courts examine whether separate convictions or an aggregated sentence were appropriate.
Free Speech and Overbreadth Concerns
Solicitation prosecutions necessarily involve speech, which can prompt arguments touching on expression. A defendant may contend that the statements at issue were protected or were too ambiguous to constitute criminal solicitation, and that treating them as a crime reaches conduct that should not be punished. While speech that genuinely seeks to induce a crime is not shielded, the line between unprotected solicitation and protected, if distasteful, expression can be contested on appeal, particularly where the words were ambiguous or emotional.
Charging and Pleading Challenges
The code channels certain solicitations into Article 82 and leaves others to be charged elsewhere. Disputes can arise over whether the conduct was properly charged and whether the elements of the specific theory were met. Appellate review may consider whether the specification adequately stated an offense and gave the accused fair notice of what had to be defended against. Defects in how the offense was pleaded can be raised on review.
Sentence Appropriateness
Finally, as in most court-martial appeals, the appropriateness of the sentence is commonly litigated. Because Article 82 ties the available punishment in some circumstances to the seriousness of the solicited offense, sentencing arguments may focus on whether the punishment was proportionate to the actual conduct, especially where the solicited crime was never attempted or committed. Military appellate courts have authority to assess sentence appropriateness, and defendants regularly ask them to exercise it.
The Bottom Line
Appellate litigation in Article 82 solicitation convictions clusters around issues that grow out of the inchoate, speech-based nature of the offense. The most common are sufficiency of the evidence and proof of intent, since the central dispute is often whether words amounted to a genuine solicitation made with the purpose that the offense be committed. Close behind are instructional error, multiplicity and unreasonable multiplication of charges given the overlap with conspiracy and attempt, arguments that the speech was ambiguous or protected, challenges to how the offense was charged, and sentence appropriateness. A service member appealing a solicitation conviction should work with experienced appellate defense counsel to identify which of these issues the trial record actually supports, because the strength of any appeal depends on the specific facts and the way the case was tried.
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.