(concurring.in the result):
27. I agree with the majority’s disposition of the certified issue — specifically, that the court below erred by holding that a perceived agreement between a servicemember and an undercover law enforcement agent to commit an offense under the Uniform Code of Military Justice does not constitute an attempted conspiracy within the meaning of Article 80, UCMJ, 10 USC § 880. It is fully consistent with the approach this Court has *328followed in other contexts when an offense would have been completed if the circumstances actually had been as the accused had believed them to be. See, e.g., United States v. Henderson, 20 MJ 87 (CMA 1985) (accused who uses substance that he mistakenly believes is lysergic acid diethylamide (LSD) is guilty of attempted use of LSD). Cf. RCM 916(j), Manual for Courts-Martial, United States, 1984 (mistake-of-fact defense available whenever accused’s acts would have been innocent if circumstances in fact had been as he had believed them to be). Here, the accused believed that Mikhail was a Soviet agent; and, had that perception been correct, the crime of conspiracy to commit espionage would have been completed. Instead, Mikhail was not a Soviet agent, so the accused was guilty of attempted espionage.
28. I disagree, however, with the lead opinion’s casual and gratuitous (though indirect) attempt to overrule this Court’s precedent that the accused’s mistake as to the true status of Mikhail prevents him from being guilty of conspiracy. First, that question is not within the certified issue. Second, given the disposition of the certified issue, resolving that question is unnecessary to this appeal and, thus, is dicta.
29. Most importantly, the lead opinion is wrong, in my view. Conspiracy under Article 81, UCMJ, 10 USC § 881, requires an agreement, a meeting of the minds. See para. 5c(2), Part IV, Manual, supra (“The agreement in a conspiracy need not be in any particular form or manifested in any formal words. It is sufficient if the minds of the parties arrive at a common understanding____”). In the factual context of an alleged co-conspirator being a play-acting, undercover government agent, there can be no such actual meeting of the minds as a matter of law — only a mistaken belief by an accused that there has been such a meeting.
30. From this perspective, the lead opinion’s reliance on United States v. Garcia, 16 MJ 52 (CMA 1983), is misplaced. The case before us involves an accused who cannot be convicted of conspiracy because it was legally impossible to have reached an agreement to commit an offense. In contrast, the issue in Garcia asked whether an accused can be convicted where another jury in another case for whatever reason did not find beyond a reasonable doubt that in fact there was such an agreement. Those questions are substantially different, and so are their answers. Accordingly, notwithstanding the lead opinion’s assertion, Garcia did not change the substantive law that a conspiracy in military jurisprudence requires a meeting of the minds.*
31. Like the person who incorrectly believes he has bought and used a contraband drug and thus is guilty of attempted use and not actual use, see United States v. Henderson, supra, this accused can be convicted only of an attempt to conspire, not conspiracy. In the words of Judge Crawford, ¶ 15, each person believes “[i]n his own mind” that what is not, is; each is mistaken; each, therefore, is guilty only of an attempt, not the offense that each “thought” he was committing.
Judge Crawford claims that her reading of Garcia "is supported by the difference between Article 81 and the Federal Conspiracy Statute, 18 USC § 371, which requires that 'two or more persons conspire ... to commit any offense' rather than ‘[a]ny person.’ ” ¶ 16. This last-quoted phrase, from Article 81, is not long enough, however. More fully, Article 81 addresses "[a]ny person subject to this chapter who conspires with any other person. ...” (Emphasis added.) There may be a difference, but I confess I do not see it.