Chapter EightInchoate Crimes: Attempt,

Conspiracy and Solicitation

Joel Samaha

Chapter Eight Learning Objectives

Understand how inchoate offenses punish people for crimes they’ve started to commit but have not finished committing.

Appreciate the dilemma inchoate offenses present to free societies and know the three different ways inchoate offenses are resolved.

Understand how liability for criminal attempt offenses is based on two rationales: prevent dangerous conduct and neutralizing dangerous people.

The mens rea of inchoate crimes is always the purpose or specific intent to commit a specific crime.

The actus reus of attempt is an action that is beyond mere preparation but not enough to complete the crime.

Understand the differences between legal impossibility, which is a defense to attempt liability, and factual impossibility, which is not.

Understand that voluntary and complete abandonment of an attempt in progress is a defense to attempt liability in about one-half the states.

Learning Objectives (cont.) Understand that punishing conspiracy and

solicitation to commit a crime is based on nipping in the bud the special danger of group criminality.

Know the different types of conspiracies. Understand the Racketeer Influenced and Corrupt

Organizations(RICO) Act and how it works against organized crime.

Understand that punishing solicitation is based on the same idea as punishing conspiracy: to stop such crimes from happening before they start, anticipating the dangers of group criminality.

Inchoate Crimes Inchoate = to begin Inchoate Crimes

• Attempt• Conspiracy• Solicitation

Inchoate crimes share• Mens rea: specific intent to commit

completed crime• Actus reus: some steps toward

accomplishing the crime, but not enough steps

Inchoate offenses Look to general part of the criminal law to

find the provisions regarding inchoate crimes—regardless of what the intended crime is.

Dilemma• No harm yet done• person is determined to commit a crime

Resolving dilemma• Require specific intent or purpose to commit the

crime or cause a harm• Require some action to carry out the purpose• Punish inchoate crimes less severely than

completed crimes

Attempt History

• By 1600’s common law courts began to develop doctrine of attempt law

• By 1700’s common law courts had created law of attempt Rex v. Scofield

“intent may make an act, innocent in itself, criminal; nor is the completion of an act, criminal in itself, necessary to constitute criminality.”

• By 1800’s: All attempts whatever to commit indictable offenses, whether felonies or misdemeanors are misdemeanors

Rationales• Focus on dangerous

acts Looks at how closely the

defendants came to completing their crimes

Aims to prevent harm from dangerous conduct

• Focus on dangerous persons Looks at how fully

defendants have developed their criminal purpose

Aims at neutralizing persons

Elements of Attempt Law

Actus reus• Intent or purpose to commit a specific crime• Act or acts to carry out the intent

Two types of attempt statutes• General attempt statute: person is guilty of attempt

to commit a crime if, with intent to commit the crime, he does an overt act toward the offense

• Specific Attempt statutes: define attempt in terms of specific crimes (attempted murder, attempted robbery)

Attempt Mens Rea• All attempt crimes require the purpose of engaging

in criminal conduct or causing a criminal result

Case: People v. Kimball

Facts: Kimball, the defendant, was at the Alpine Party Store and demanded money from the women working at the cash register. The defendant claimed it was a joke.

Issue: Did Kimball intend to rob the store? Holding: Court examined facts to determine

whether it was clearly erroneous (standard of review) for the trial court to find that there was sufficient evidence to prove defendant had the requisite intent to attempt to commit unarmed robbery.

Attempt Actus Reus Continuum of what is required to

commit an attempt.• One end of spectrum: last act necessary• Other end of spectrum: any slight thing

above mere preparation (mere preparation is not an attempt under any approach)

• Jurisdictions vary tremendously in what constitutes the actus reus for attempt, check the statute Different “tests” aren’t mutually exclusive, rather

they are efforts to describe the acts that are enough to fall within the spectrum

Attempt Actus Reus (cont.) Dangerous Conduct -- Proximity tests

• Were acts close enough to intended crime to count them as a criminal act?

• Physical proximity– dangerous proximity to success test did actor come dangerously close to committing crime Focus on what actors still have to do to carry out their purpose

• Dangerous proximity• Indispensible element test

Has person gotten everything they need to complete the crime Dangerous persons tests

• Unequivocality (res ipsa loquiter) test Act speaks for itself

Would ordinary person who saw defendant’s acts without knowing her intent believe the person intended to commit the crime?

Stop the film test• Probable desistance test

Defendants have gone far enough toward completing the crime if it is unlikely they will turn back

• Substantial steps test MPC

MPC Substantial Steps test Actus reus of attempt under MPC two

elements:• Substantial steps toward completing the

crime• Steps that strongly corroborate the actor’s

criminal purpose. List of things that constitute substantial steps

Preparation isn’t criminal attempt Some states have created

preparation offenses

Discussion ActivityJeff told Scott he plans to burn down the police station. Jeff goes to the store and buys matches and several newspapers. Is this an attempted arson?

Jeff told Scott he plans to burn down the police station. Jeff goes to the store and buys matches and several newspapers. Jeff then puts the newspapers next to the front door of the police station. He attempts to light a match but it’s too windy and it won’t light. Is this an attempted arson?

Case: Mims v. U.S.

Facts: Mims, the defendant, and 4 others had a plan to rob a bank. When they arrived at the bank, it was closed. They got the attention of an employee. When she approached them, one of the boys placed a gun to her head and told her they were going to rob the bank. She stated it was “too late” as the bank was closed. They then ran away.

Issue: Did Mims attempt to rob the bank Holding: Preparation alone is not an attempt.

Must have some degree of accomplishment

Case: People v. Rizzo

Facts: Rizzo, the defendant, and 3 other were driving around looking for someone to rob when they were arrested. They were tried and convicted of attempted robbery.

Issue: Did their acts add up to attempt actus reus?

Holding: Only acts as tending to the commission of the crime which are so near to its accomplishment that in all reasonable probability the crime itself would have been committed, but for the timely interference.

Case: Commonwealth v. Peaslee

Facts: Peaslee, the defendant, arranged combustibles in a building he owned in a way that if lighted, would have set fire to the building. His accomplice refused to light the fire.

Issue: Did Peaslee attempt to commit arson? Holding: “A mere collection and preparation of

materials in a room, for the purpose of setting fire to them, unaccompanied by any present intent to set the fire, would be too remote and not all but the “last act” necessary to complete the crime.”

Impossibility: Defense to Attempt

Legal impossibility (a valid defense)• Actors intend to commit crimes, and do

everything they can to carry out their criminal intent, but the crime law doesn’t ban what they did

• Requires different law to complete the crime Factual impossibility (not a valid defense)

• Actors intend to commit a crime and try to commit the crime but some extraneous factor interrupts them to prevent the completion of the crime

• Requires different facts to complete the crime

Case: State v. Damms

Facts: Damms, the defendant, held a gun to his wife’s head and fired. The gun did not fire as it was unloaded.

Issue: Was Damm’s guilty of attempted murder?

Holding: The gun being unloaded is not extraneous factor since it was in the control of the defendant

Voluntary Abandonment Affirmative defense to

attempt liability Must be complete Must be a result of a

change in the actors purpose (stemming from a change of heart), not influenced by outside circumstances.

Reappraisal of possible sanctions can prompt the change of heart, as long as the fear of the law isn’t related to the particular threat of detection (specific to this case)

Rationale• Those who renounce

criminal attempts in progress aren’t the dangerous people the law wants to punish

• Renunciation prevents what we most want to prevent, harm to victim

• Encourages criminal to give up their criminal designs

• Contra: encourages bad people to take first steps because they know they can escape punishment

Case: Le Barron v. State

Facts: Le Barron, the defendant, forced Randen into a shack, unzipped his pants and began to pull up her skirt. She told him she was pregnant and pleaded with him to stop. Le Barron verified she was pregnant and stopped the attack.

Issue: Did Le Barron voluntarily abandon his attempt to rape?

Holding: No. The pregnancy which caused Le Barron to stop does not qualify as an “extraneous factor”. Hos overt acts established that he intended to rape the victim.

Conspirarcy Agreeing with one or more people to commit a

crime Liability can attach to conspiracy a lot sooner than

with attempt• Conspiracy law is designed to nip criminal purpose in the

bud• Conspiracy strikes at the danger of group criminal activity

Overt Act• ½ states require an overt act in furtherance of the

conspiracy• ½ states require only the agreement to constitute actus

reus• Overt acts “verify the firmness of the agreement”

ConspiracyACTUS REUS MENS REA

Agreement to commit a crime

Overt act in furtherance of the agreement

Agreement doesn’t have to be in writing

There has to be a meeting of the minds

Facts and circumstances that point to an unspoken understanding between conspirators

Not clear at common law, still not clear

Divergent and inconsistent approaches• Specific intent to commit a

criminal act• Specific intent to commit a

specific criminal objective • Examples of why it matters• Do all those in agreement

need to agree to each other’s purpose?

Case: U.S. v. Garcia

Facts: Garcia, the defendant, and Humo were charged and convicted of conspiracy to assault 3 rival gang members.

Issue: Did Garcia agree to assault 3 Crips members with a deadly weapon?

Holding: A general agreement among gang members to back each other is not sufficient evidence of a conspiracy

Parties to Conspiracy Traditional approach

• Two or more must agree to complete a crime• The parties need to have actual agreement• Problem: undercover situation, failure to convict

one party should lead to failure to convict the others

Unilateral Approach• No requirement that parties know all of their co-

conspirators• No requirement that state prove the intent of all

the parties….Sufficient that the state prove that X intended to enter an agreement with Y to commit a crime…Conspiracy exists even if Y doesn’t really mean to go through with it (undercover officer example)

Large Scale Conspiracies

Wheel Conspiracies: • One or more defendants

participate in every transaction (the hubs)

• Others participate in only one transaction (the spokes)

• Example: Ed conspires with Sam to illegally

sell his motor home. Ed conspires with Fred to illegally

sell his motor home. Ed is the hub and Sam/Fred are

spokes. Sam and Fred don’t need to

know of each other or come to an agreement amongst themselves.

Chain Conspiracies: • Participants at one end of

the conspiracy may know nothing of those at the other end

• Every participant handles the same commodity at different points

• U.S. v. Bruno example Narcotics smugglers,

purchasers, middlemen

Criminal Objective Scope of criminal objective may vary from

narrow to broad Vague definition leads to prosecutorial

discretion (abuse??) Prosecute conspiracy rather than the underlying crime? Media attention to conspiracy

Some states efforts to narrow conspiracy elements

Model Penal Code—adopted the overt act requirement plus requirement that the mens rea include purposeful conduct to carry out the objective of the agreement

Discussion ActivityDoug is a drug dealer who is about to import a large shipment of heroin from south of the border. Doug has recently become friends with Steve and he asks Steve if he would like to help him import and distribute the heroin. Steve agrees to help Doug. What Doug does not know is that Steve is a federal narcotics agent who has been investigating Doug. Before Doug is able to pick up the shipment, Steve has him arrested. Is this a conspiracy?

Doug and Steve are two drug dealers who agree to work together to bring a shipment of heroin across the border. Doug and Steve drive to the border and begin unloading the drugs from their supplier’s truck into their own van. Ralph happens to be driving by and sees what is going on and hops out of his car and begins helping them to unload the drugs. Is Ralph a conspirator with Doug and Steve?

RICO Grew out of need to deal with organized crime

Enhanced penalties for criminal enterprises

Racketeering activity encompasses a lot of different types of behaviors

Used for mobs and the extended to other white collar crimes, now used for gang activity

Rico TrialsGovernment must prove enterprise elementMust prove multiple crimes to establish patternMass trial with large number of defendants

Discussion ActivityReview the article below to learn more about how RICO was used in the nations largest prosecution of gang members.http://www.streetgangs.com/features/011110_hawaiian_gardens

Case: Alexander v. U.S.

Facts: Alexander, the defendant, was convicted of selling pornography and sentenced to 6 yrs. in prison, fined $100,000; ordered to pay the cost of prosecution, incarceration and supervised release and ordered to forfeit his interest in 10 pieces of commercial real estate and 31 current or former businesses.

Issue: Was the forfeiture an excessive fine? Holding: Proportionality review not required

for any sentence less than life.

Solicitation

Solicitation Actus Reus • Statements made as

inducement to commit crime Advises, commands, counsels,

encourages, entices, entreats, importunes, incites, instigates, procures, requests, solicits, urges

• Effort to get another to commit a crime

Inducement that doesn’t reach its object may qualify

Solicitation Mens Rea• Specific intent• Purpose to commit a

specific crime Some states limit

solicitation to soliciting felonies or violent felonies

Trying to get someone else to commit a crime

Case: State v. Schleifer

Facts: Schleifer, the defendant, was charged for solicitation to commit crimes after he called for violence against the railroad management and it’s property during a speech.

Issue: Did Schleifer solicit his audience to destroy their employers’ homes and businesses?

Holding: Schleifer was talking to every individual and could be considered solicitation.