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Enlisting to Serve

18 U.S.C. § 2390 - Enlisting to Serve Against the United States

Title 18 U.S. Code 2390 is a federal statute that criminalizes the act of enlisting to serve in an armed force against the United States. This provision is vital in safeguarding the nation's security and maintaining the rule of law.

Enlisting to Serve Against the United States - 18 U.S.C. § 2390

While not a law commonly used to prosecute individuals within the U.S., it is being viewed with fresh eyes in the light of recent history. This statute is related to treason, which has specific definitions under different federal laws.

These laws must be understood so you know what a federal prosecutor has to prove to get a conviction. Challenging the different factors of the offense is a common strategy for most defense attorneys to cast reasonable doubt.

Being accused of enlisting to serve against the United States, treason, sedition, or subversive activities could destroy a career and result in a lengthy prison sentence.

18 U.S.C. 2390 says, “Whoever enlists or is engaged within the United States or in any place subject to the jurisdiction thereof, with intent to serve in armed hostility against the United States, shall be fined under this title or imprisoned….”

If you are charged and convicted under this law, you could face up to 3 years in federal prison. Let's review this federal law in more detail below.

Background of 18 U.S.C. 2390

Title 18 U.S. Code 2390 is a federal law that seeks to protect the United States from threats to its national security by prohibiting individuals from enlisting or encouraging others to enlist in armed forces operating against the United States.

Background of 18 U.S.C. 2390

It is embodied within Chapter 115 of Title 18, the portion of the U.S. Code dealing with acts of Treason, Sedition, and Subversive Activities.

This statute, along with others in Chapter 115, was enacted during the Civil War era when the government sought to preserve its sovereignty and ensure the safety of its citizens.

It was meant as an attempt to prevent another scenario in which states might secede and form armies against the Union. Thus, this law has been a deterrent for many years and was rarely used.

However, in light of the January 6 riots at the U.S. Capitol and the growing recruiting efforts of paramilitary groups that might seek to subvert the government, this law may find a fresh relevance for modern times.

What Does the Law Say?

The statutory language of 18 U.S.C. 2390 reads that "Whoever enlists... with intent to serve in armed hostility against the United States.”

This law also refers explicitly to enlisting or being engaged within the United States or its jurisdiction, again alluding to the Civil War era.

It does not refer to joining an army of a foreign country, which is not illegal unless that country is at war with the U.S. In such a case, the defendant might simply be charged with treason under other laws within Chapter 115.

What Are the Related Crimes?

Several federal crimes are similar to 18 U.S.C. 2390 enlisting to serve in an armed force against the United States but require a different level of intent. Many of these laws are found within 18 U.S. Code Chapter 115, including the following:

  • Treason, defined under 18 U.S.C. 2381, is described as whoever levies war against the United States or adheres to their enemies, giving them aid and comfort. It's punishable by death but rarely prosecuted.
  • Misprision of treason, defined under 18 U.S.C. 2382, is the statute that imposes a fine and imprisonment for owing allegiance to the United States and not disclosing treason as soon as they know it has occurred.
  • Rebellion or insurrection, defined under 18 U.S.C. 2383, is described as two or more people rising in rebellion against the U.S. government or assisting others in rebelling.
  • Sedition, also called “seditious conspiracy,” defined under 18 U.S.C. 2384, is described as two or more people conspiring to overthrow, put down, or destroy the United States government by force.  
  • Advocating the overthrow of the government, defined under 18 U.S.C. 2385, makes it a federal crime to advocate, abet, advise, or teach the duty, necessity, desirability, circulate printed material, or propriety of overthrowing the U.S. government.
  • Registration of specific organizations, defined under 18 U.S.C. 2386, is described as any activity of overthrowing the U.S. government.
  • Activities affecting armed forces, defined under 18 U.S.C. 2387, is the statute that makes it a crime to cause insubordination among military members or distribute materials urging disloyalty to the military.
  • Activities affecting armed forces during war, defined under 18 U.S.C. 2388, are described as interfering with the operation of success of the military.
  • Recruiting for service against the United States, defined under 18 U.S.C. 2389, is described as recruiting soldiers or sailors to engage in armed hostility against the U.S. government.
  • Espionage, defined under 18 U.S.C. 792 – 798, is described as obtaining, delivering, or transmitting national defense information to a person not authorized to receive it or retaining documents or devices intending to give it to an unauthorized person.

What Are the Penalties for 18 U.S.C. 2390?

Being convicted of a crime under U.S.C. can generate significant penalties. These include the following:

  • Imprisonment for up to 3 years; and
  • Fines of up to $250,000.

It is important to note that the penalties imposed under 18 U.S. Code 2390 are separate from any other criminal charges that may be brought against the defendant. For instance, if you are also charged with espionage or treason, you may face additional penalties for those offenses.

Possible Defenses to 18 U.S. Code 2390

If you're charged with a crime under U.S.C. 2390, an experienced federal criminal defense attorney can utilize a variety of defenses to counter the charge. These defenses are discussed below.

Perhaps we can argue there was a lack of knowledge. Your attorney can say, for example, that you were not aware that the organization you were joining was arming itself against the United States or considered itself hostile to the U.S.

Defenses for Federal Offenses

Perhaps we can argue a mistake of fact. Your attorney may claim that you believed the recruitment, enlistment, or inducement was for a legitimate purpose, such as joining a private security firm, rather than an armed force engaged in hostilities against the United States.

Perhaps we can argue there was entrapment. For example, suppose a defendant can show that they were induced or persuaded by a government agent to commit the crime and would not have otherwise engaged in such activity. In that case, they may claim entrapment as a defense.

Perhaps we can argue there was duress. Your attorney may argue that you enlisted under duress, such as facing a threat of imminent harm. For example, perhaps the organization in question had threatened to harm you or your family, and you felt you had no choice but to enlist in the armed force.

Perhaps we can argue First Amendment rights. In some cases, the defendant may argue that their actions were protected by the First Amendment, which guarantees the right to free speech, assembly, and association. This defense may be applicable if the defendant's actions were solely expressive in nature and did not involve any actual recruitment, enlistment, or inducement.

If you are under investigation or already charged with a federal crime, contact our law firm to review the case details by phone or through the contact form. We offer legal representation on federal criminal issues across the United States. Eisner Gorin LLP is located in Los Angeles, California.

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