NOTE 1: This instruction only applies to solicitation to commit offenses under the UCMJ (other than mutiny, desertion, misbehavior before the enemy, and sedition) allegedly committed on or after 1 January 2019. For prior solicitation to commit offenses under Article 134, see Instruction 3-105-1.
NOTE 2: 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. For solicitation offenses, whether it is a criteria or parameter offense is dependent on the underlying offense solicited.
a. MAXIMUM PUNISHMENT:
(1) Espionage: DD, TF, life without eligibility for parole, E-1.
(2) Other Offenses: DD, TF, 10 years, E-1 or maximum punishment for underlying offense, whichever is less.
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, wrongfully (solicit) (advise) __________ (to disobey a general regulation, to wit:________) (to steal ________, of a value of (about) $______ , the property of __________) (to __________), by _________________.
c. ELEMENTS:
(1) That (state the time and place alleged), the accused (solicited) (advised) (state the name of the person(s) allegedly solicited or advised) to commit (specify the offense allegedly solicited or advised), in violation of Article ___, UCMJ; and
(2) That the accused specifically intended that (state the name of person allegedly solicited or advised) commit the offense of (specify the offense allegedly solicited or advised).
d. DEFINITIONS AND OTHER INSTRUCTIONS:
(“Solicit”) (“Advise”) means any statement, oral or written, or any other act or conduct which reasonably may be construed as a serious request or advice to commit the offense named in the specification.
The offense of solicitation is complete when the solicitation is made or advice is given with the specific intent to influence another or others to commit the offense named in the specification. It is not necessary that the person or persons solicited or advised agree to or act upon the solicitation or advice.
(It is not necessary that the accused act alone in the solicitation or in the advising; the accused may act through other persons in committing this offense.)
The accused must have intended that (state the name(s) of the person(s) solicited or advised) commit every element of the offense of (state the offense alleged in the specification). The elements of (state the offense alleged in the specification), in violation of Article ___, UCMJ, are as follows: (state the elements of the offense allegedly solicited along with necessary definitions).
Proof that the offense of (state the offense alleged in the specification) was actually attempted or committed is not required.
NOTE 3: Instructing on the elements of the offense solicited. When stating the elements of the solicited offense, the military judge may describe that offense in summarized fashion, along with applicable definitions, rather than enumerate each element. For example, where the alleged offense solicited is larceny of an item of a value of greater than $500, the military judge may state, “Larceny is the wrongful taking of the property of another of a value greater than $500 with the intent to permanently deprive the owner of the use and benefit of the property or the intent to permanently appropriate the property to the accused's own use or the use of anyone other than the lawful owner. A taking is wrongful only when done without the consent of the owner and with a criminal state of mind.” When the offense solicited involves elements of another offense, such as burglary with intent to commit rape, the elements of both offenses (burglary and rape), along with applicable definitions, must be stated.
NOTE 4: Graduated punishment possibilities for the solicited offense. If the solicited offense has maximum punishments graduated according to value, amounts, type of property, or other factors, the elements of the solicited offense must include the value, amount, type of property, or other factor alleged. For example, where the offense solicited is larceny of military property, that the property was military property must be stated as an element and the definition of military property given. The elements for the offenses need not be enumerated but may be summarized as in the example in NOTE 2 above.
NOTE 5: Solicitation to commit murder or voluntary manslaughter. If the accused is charged with solicitation to commit murder or voluntary manslaughter, the military judge must instruct the specific intent required is to kill; an intent to inflict great bodily harm is not sufficient. See US v. Roa, 12 MJ 210 (CMA 1982) and US v. DeAlva, 34 MJ 1256 (ACMR 1992).
e. REFERENCES: US v. Oakley, 23 CMR 197 (CMA 1957); US v. Higgins, 40 MJ 67 (CMA 1994) (the person solicited must know that the act requested of him is part of a criminal venture).