A recurring question in military justice is whether a person who only pretends to agree to a crime, in order to lure or expose someone else, can be charged with conspiracy. This often arises with informants, undercover investigators, or service members cooperating with law enforcement. Under military law, the answer is no: a feigned agreement is not a conspiracy. Article 81 of the Uniform Code of Military Justice requires a genuine meeting of the minds, and a person who never truly intends the crime cannot be a conspirator.
The Agreement Must Be Real on Both Sides
Article 81 punishes anyone who conspires with another person to commit an offense, when at least one conspirator performs an overt act to effect its object. The elements require an actual agreement entered into with the intent that the offense be committed, an overt act in furtherance while the agreement exists, and the accused’s knowing and voluntary participation.
The phrase “with the intent that the offense be committed” is the heart of the issue. A false agreement, made by someone who is only feigning a criminal purpose, lacks that intent. The person pretending to agree has no design to bring about the crime; the goal is the opposite, to expose or apprehend. When one of only two participants is merely feigning, there is no shared criminal intent and therefore no genuine agreement to commit the offense.
Military Courts Follow the Bilateral Theory
The Court of Appeals for the Armed Forces addressed this directly in United States v. Valigura. The accused’s only claimed co-conspirator was an undercover government agent who never genuinely intended to carry out the crime. CAAF overturned the conspiracy conviction, holding that Article 81 follows the bilateral theory of conspiracy. Under that theory, a conspiracy requires at least two persons who actually agree, each with the criminal intent to accomplish the unlawful object. As the court put it, it is impossible in the nature of things for a person to conspire with one who only feigns agreement, because conspiracy demands a corrupt agreement between not fewer than two persons with guilty knowledge.
CAAF emphasized that Congress chose the word “conspires” in Article 81, signaling an intent to preserve the traditional bilateral requirement consistent with federal conspiracy law. This distinguishes military law from those few jurisdictions that have adopted a unilateral theory, under which a defendant can be convicted for agreeing with a person who only pretends to go along. The military does not follow the unilateral approach. If the only other party is feigning, there is no military conspiracy.
Why the Person Setting the Trap Is Not a Conspirator
This principle protects more than the target. It also explains why the person who fakes an agreement, such as an informant or undercover investigator, is not committing conspiracy. Because that person never intends the offense to occur and is acting to frustrate it, there is no criminal agreement on that side. The pretended assent is exactly that, pretended. The law has long recognized that there can be no indictable conspiracy with someone who secretly intends to defeat the very plan.
What This Means for the Real Target
The practical consequence is significant. If a service member believes there are two people in a plan but one of them is only feigning, the member cannot be convicted of conspiracy, because the law sees only one genuine participant, and a person cannot conspire alone. To support a conspiracy charge, the government must show at least two real participants who actually agreed with criminal intent.
This does not mean the member walks away from all liability. Conduct that would otherwise be a conspiracy may still expose the member to other charges. Depending on the facts, the government may pursue an attempt to commit the underlying offense, solicitation, or the substantive offense itself if it was carried far enough. These offenses have their own elements and do not depend on a genuine two-sided agreement. The point is narrower but important: the specific crime of conspiracy under Article 81 is unavailable when the only counterpart was feigning.
The Entrapment Question Is Separate
It is worth separating two distinct ideas that often get blended. The first is the bilateral-agreement principle just described, which goes to whether a conspiracy exists at all. The second is the affirmative defense of entrapment, which can apply when government agents induce a person to commit an offense the person was not otherwise predisposed to commit. Entrapment, where it applies, can defeat a charge even for offenses other than conspiracy. The two concepts can appear in the same case, but they operate independently: one defeats the conspiracy by negating the agreement, while the other may defeat a charge by showing improper government inducement.
Bottom Line
False agreements used to expose or entrap others are not prosecutable as real conspiracies under military law. Article 81 follows the bilateral theory confirmed in United States v. Valigura, requiring a genuine meeting of the minds between at least two persons who actually intend the offense. A feigned agreement supplies no criminal intent on one side, so no conspiracy forms, and the person doing the feigning is not a conspirator. The target may still face attempt, solicitation, or substantive charges, but the conspiracy theory itself collapses without a real, shared agreement.
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.
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