Chapter Eight

Chapter EightInchoate Crimes: Attempt, Conspiracy and Solicitation

Joel SamahaChapter Eight Learning ObjectivesUnderstand how inchoate offenses punish people for crimes theyve 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 CrimesInchoate = to beginInchoate Crimes AttemptConspiracySolicitationInchoate crimes shareMens rea: specific intent to commit completed crimeActus reus: some steps toward accomplishing the crime, but not enough stepsInchoate offensesLook to general part of the criminal law to find the provisions regarding inchoate crimesregardless of what the intended crime is.DilemmaNo harm yet doneperson is determined to commit a crimeResolving dilemmaRequire specific intent or purpose to commit the crime or cause a harmRequire some action to carry out the purposePunish inchoate crimes less severely than completed crimes

AttemptHistoryBy 1600s common law courts began to develop doctrine of attempt lawBy 1700s common law courts had created law of attemptRex v. Scofieldintent may make an act, innocent in itself, criminal; nor is the completion of an act, criminal in itself, necessary to constitute criminality. By 1800s: All attempts whatever to commit indictable offenses, whether felonies or misdemeanors are misdemeanorsRationalesFocus on dangerous actsLooks at how closely the defendants came to completing their crimesAims to prevent harm from dangerous conductFocus on dangerous persons Looks at how fully defendants have developed their criminal purposeAims at neutralizing personsElements of Attempt LawActus reusIntent or purpose to commit a specific crimeAct or acts to carry out the intentTwo types of attempt statutesGeneral 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 offenseSpecific Attempt statutes: define attempt in terms of specific crimes (attempted murder, attempted robbery)Attempt Mens ReaAll attempt crimes require the purpose of engaging in criminal conduct or causing a criminal result

Case: People v. KimballFacts: 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 ReusContinuum of what is required to commit an attempt.One end of spectrum: last act necessaryOther 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 statuteDifferent tests arent mutually exclusive, rather they are efforts to describe the acts that are enough to fall within the spectrumAttempt Actus Reus (cont.)Dangerous Conduct -- Proximity testsWere acts close enough to intended crime to count them as a criminal act?Physical proximitydangerous proximity to success testdid actor come dangerously close to committing crimeFocus on what actors still have to do to carry out their purposeDangerous proximityIndispensible element testHas person gotten everything they need to complete the crime Dangerous persons testsUnequivocality (res ipsa loquiter) testAct speaks for itselfWould ordinary person who saw defendants acts without knowing her intent believe the person intended to commit the crime?Stop the film testProbable desistance testDefendants have gone far enough toward completing the crime if it is unlikely they will turn back Substantial steps test MPC

MPC Substantial Steps testActus reus of attempt under MPC two elements:Substantial steps toward completing the crimeSteps that strongly corroborate the actors criminal purpose. List of things that constitute substantial stepsPreparation isnt criminal attemptSome 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 its too windy and it wont 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 bankHolding: Preparation alone is not an attempt. Must have some degree of accomplishment Case: People v. RizzoFacts: 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. PeasleeFacts: 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 AttemptLegal impossibility (a valid defense)Actors intend to commit crimes, and do everything they can to carry out their criminal intent, but the crime law doesnt ban what they didRequires different law to complete the crimeFactual 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 crimeRequires different facts to complete the crime

Case: State v. DammsFacts: Damms, the defendant, held a gun to his wifes head and fired. The gun did not fire as it was unloaded.Issue: Was Damms guilty of attempted murder?Holding: The gun being unloaded is not extraneous factor since it was in the control of the defendant Voluntary AbandonmentAffirmative defense to attempt liabilityMust be completeMust 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 isnt related to the particular threat of detection (specific to this case)RationaleThose who renounce criminal attempts in progress arent the dangerous people the law wants to punishRenunciation prevents what we most want to prevent, harm to victimEncourages criminal to give up their criminal designsContra: encourages bad people to take first steps because they know they can escape punishment

Case: Le Barron v. StateFacts: 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.

ConspirarcyAgreeing with one or more people to commit a crimeLiability can attach to conspiracy a lot sooner than with attemptConspiracy law is designed to nip criminal purpose in the budConspiracy strikes at the danger of group criminal activityOvert Act states require an overt act in furtherance of the conspiracy states require only the agreement to constitute actus reusOvert acts verify the firmness of the agreement

ConspiracyActus ReusMens reaAgreement to commit a crimeOvert act in furtherance of the agreementAgreement doesnt have to be in writingThere has to be a meeting of the mindsFacts and circumstances that point to an unspoken understanding between conspiratorsNot clear at common law, still not clearDivergent and inconsistent approachesSpecific intent to commit a criminal actSpecific intent to commit a specific criminal objective Examples of why it mattersDo all those in agreement need to agree to each others purpose?

Case: U.S. v. GarciaFacts: 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 ConspiracyTraditional approachTwo or more must agree to complete a crimeThe parties need to have actual agreementProblem: undercover situation, failure to convict one party should lead to failure to convict the othersUnilateral ApproachNo requirement that parties know all of their co-conspiratorsNo 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 crimeConspiracy exists even if Y doesnt really mean to go through with it (undercover officer example) Large Scale ConspiraciesWheel 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 dont 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 endEvery participant handles the same commodity at different pointsU.S. v. Bruno exampleNarcotics smugglers, purchasers, middlemen

Criminal ObjectiveScope of criminal objective may vary from narrow to broadVague definition leads to prosecutorial discretion (abuse??)Prosecute conspiracy rather than the underlying crime?Media attention to conspiracySome states efforts to narrow conspiracy elementsModel Penal Codeadopted the overt act requirement plus requirement that the mens rea include purposeful conduct to carry out the objective of the agreementDiscussion 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 suppliers 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?

RICOGrew out of need to deal with organized crimeEnhanced penalties for criminal enterprisesRacketeering activity encompasses a lot of different types of behaviorsUsed 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 defendantsDiscussion 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_gardensCase: 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. SolicitationSolicitation Actus Reus Statements made as inducement to commit crimeAdvises, commands, counsels, encourages, entices, entreats, importunes, incites, instigates, procures, requests, solicits, urgesEffort to get another to commit a crimeInducement that doesnt reach its object may qualifySolicitation Mens ReaSpecific intentPurpose to commit a specific crimeSome states limit solicitation to soliciting felonies or violent felonies

Trying to get someone else to commit a crimeCase: State v. SchleiferFacts: Schleifer, the defendant, was charged for solicitation to commit crimes after he called for violence against the railroad management and its 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.