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.
a. MAXIMUM PUNISHMENT: DD, TF, life without eligibility for parole, E-1. (Category 5)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about _________, with intent or reason to believe it would be used to the injury of the United States or to the advantage of __________, a foreign nation, attempt to (communicate) (deliver) (transmit) (__________) (description of item) (a document) (a writing) (a Code book) (a sketch) (a photograph) (a photographic negative) (a blueprint) (a plan) (a map) (a model) (a note) (an instrument) (an appliance) (information) relating to the national defense, [(which directly concerned (nuclear weaponry) (military spacecraft) (military satellites) (early warnings systems) (__________, a means of defense or retaliation against a large scale attack) (war plans) (communications intelligence) (cryptographic information) (__________, a major weapons system) (__________, a major element of defense strategy)] to __________ ((a representative of) (an officer of) (an agent of) (an employee of) (a subject of) (a citizen of)) ((a foreign government) (a faction within a foreign country) (a party within a foreign country) (a military force within a foreign country) (a naval force within a foreign country)) (indirectly by _________).
c. ELEMENTS:
(1) That (state the time and place alleged), the accused committed a certain overt act, to wit: ___________;
(2) That the act was done with intent to commit espionage against the United States;
(3) That the act amounted to more than mere preparation; and
(4) That the act apparently tended to bring about the offense of espionage.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
To constitute an attempt, there must be an act which amounts to more than mere preparation; that is, an act which is a substantial step and a direct movement toward the commission of the prohibited (communication) (delivery) (transmittal). Moreover, the act must apparently tend to bring about the prohibited (communication) (delivery) (transmittal) and be done with the specific intent to bring about the (communication) (delivery) (transmission) of the matter to the (person(s)) (or) (entity) (entities) with the intent, or reason to believe, that the matter would be used to the injury of the United States or to the advantage of a foreign nation. For an act to apparently tend to bring about the commission of an offense means that the actual offense of espionage would have occurred except for (a circumstance unknown to the accused) (an unexpected intervening circumstance) (__________) which prevented completion of the offense.
“Intent or reason to believe” that the information is “to be used to the injury of the United States or to the advantage of a foreign nation” means that the accused acted in bad faith and without lawful authority with respect to information that is not lawfully accessible to the public.
“Instrument, appliance, or information relating to the national defense” includes the full range of modern technology and matter that may be developed in the future, including chemical or biological agents, computer technology, and other matter related to the national defense.
“Foreign country” includes those countries that have and have not been recognized by the United States.
NOTE 2: Other instructions. Instruction 7-3, Circumstantial Evidence, is normally applicable.
e. REFERENCES: US v. Richardson, 33 MJ 127 (CMA 1991) Earlier versions of this instruction pertaining to the intent element contained the words “bad faith OR without authority.” Instructing as to “without authority” in the alternative to “bad faith” was expressly rejected in US v. Richardson.