(concurring in the result):
24. I cannot join the lead opinion. It over complicates and misapplies the law in its analysis. A plain reading of the applicable statutes furnishes the answer in this case. Nothing more is required.
25. Article 80, Uniform Code of Military Justice, 10 USC § 880, provides:
§ 880. Art. 80. Attempts
(a) An act, done with specific intent to commit an offense under this chapter, amounting to more than mere preparation and tending, even though failing, to effect its commission, is an attempt to commit that offense.
(b) Any person subject to this chapter who attempts to commit any offense punishable by this chapter shall be punished as a court-martial may direct, unless otherwise specifically prescribed.
(c) Any person subject to this chapter may be convicted of an attempt to commit an offense although it appears on the trial that the offense was consummated.
Whether attempted conspiracy is prohibited by this statute depends on whether conspiracy is “an offense under this chapter.” Article 81, UCMJ, 10 USC § 881, states:
§ 881. Art. 81. Conspiracy
Any person subject to this chapter who conspires with any other person to commit an offense under this chapter shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct.
Thus, the plain language of the statutes in question decides the certified issue.
26. Admittedly, this Court has suggested that there is no conspiracy where a supposed participant is a government agent who is seeking to detect and apprehend criminals. We said:
Nor can it be argued that there was any conspiratorial arrangement between Taylor and any of the other guards whom he contacted. Regardless of their seeming compliance with his wishes, each promptly reported Taylor’s intentions to his superior and actually only pretended to fall in with the planned theft of Government property. And it is well settled that there can be no conspiracy when a supposed participant merely feigns acquiescence with another’s criminal proposal in order to secure his detection and apprehension by proper authorities. United States v. Cascio, 16 CMR 799; United States v. Siedentop, 58 BR 191; United States v. Line, 1 BR 25; Odneal v. State, 117 Tex Crim 97, 34 SW2d 595 (1931); 1 Wharton, Criminal Law and Procedure, § 83 (1957).
United States v. LaBossiere, 13 USCMA 337, 340, 32 CMR 337, 340 (1962). However, the precedential force of such a holding was severely undermined in United States v. Garcia, 16 MJ 52, 54 (CMA 1983). See also ¶ 4(c)(3), Part IV, Manual for Courts-Martial, United States, 1984. In any event, I answer the certified question in the affirmative and vote to set aside the decision of the United States Navy-Marine Corps Court of Military Review as to the attempted conspiracy to commit espionage.