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SECTION TWO: SPECIFIC CRIMES PART ONE: INCHOATE CRIMES I.
Grading a. Rule i.
1. 2. (CL)
1. Attempt, solicitation, and conspiracy are crimes of the same grade and degree as the most serious offense which is attempted, solicited, or an object of the conspiracy (SS 5.05), unless a. the offense is a capital crime, in which case these are a degree lower.
D cannot be convicted of more than one of these offenses for the same crime. Attempt, solicitation, and conspiracy typically receive significantly lower punishments than the completed crime, e.g. in California, half the time, and in New York, a degree less.
Criminal Attempt a. Rule i. (MPC)(2/3 of jurisdictions)
1. D is guilty of criminal attempt if D acts with the kind of culpability otherwise required for the offense, a. purposefully engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be (i.e. mistake of fact is not a defense), b. does anything with the purpose or with the belief that the material element will result, or c. purposely does anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step toward committing the crime (SS 5.01), unless i. D voluntarily renounces his criminal purpose (SS 5.01(4)). ii. (CL) (1/3 of jurisdictions)
1. D is guilty of attempted X if D intends to commit X and
2. D takes a substantial step toward the offense (Kraft). b. Analysis i. Culpability otherwise required / intends?
1. This requires purpose, even if the offense itself is satisfied by knowledge or less (Kraft)(Thacker). a. "Attempted voluntary manslaughter" is possible if D intends to act recklessly (Thomas). b. "Attempted felony murder" has been rejected by all states but Arkansas. c. "Attempted involuntary manslaughter" is a contradiction (S. v. Holbron (Haw. 1995)). d. "Attempted rape" requires same mens rea as rape: D intends to have sex with knowledge of no consent; the only difference is whether sex happens (R. v. Khan (Eng. 1991)). e. "Attempted statutory rape" does NOT require awareness of age, since mistake of age is irrelevant to the offense and therefore irrelevant to the attempt (C. v. Dunne (Mass. 1985)). ii. Mistake of fact / impossibility?
1. Old rule was legal impossibility (shooting stuffed dummy D thought was real) was defense whereas factual impossibility (shooting through window when intended target not home) was not.
2. Modern rule: impossibility is never defense (Dlugash); a. if D thought D was committing crime and D meets requirements for attempt, guilty. iii. Substantial step?
1. (MPC) a. Satisfied by conduct "strongly corroborative" of D's criminal purpose, e.g.: i. soliciting an innocent agent, lying in wait, possessing materials, etc (SS 5.01(2));
1. unlike CL, this includes hiring a hitman (Church) or
2. casing a bank and bringing weapons (Jackson). b. Also satisfied if D aids/abets another who does not actually complete or even attempt the crime (SS 5.01(3)).
iv. v. c.
ii. iii. iv. v. vi.
Satisfied if D is in "dangerous proximity" to committing crime (Rizzo); NOT: i. going to location to meet 12 y/o to have sex with (S. v. Duke (Fla. Ct. App. 1998)); ii. making an appointment with a potential victim (Harper). iii. soliciting a hitman (Davis);
1. these jurisdictions believe solicitation is never an attempt since
D doesn't plan to commit act personally (U.S. v. American Airlines (5th Cir. 1984)). b. The problem is anything too early, where there is not much evidence and where D still has time to reasonably repent (S. v. Robins (Wis. 2002)); i. Must be more than preparation, but does not have to be the final step before the commission (King v. Barker (N.Z.L.R. 1924)); Voluntarily renounces?
1. (MPC) a. Doesn't count if D only did it because the odds of getting caught were higher, or D wanted to postpone (SS 5.01(4)).
2. (CL) a. Repentance has to come before the offense, even if i. D robs victim but doesn't take money and apologizes (P. v. Johnston (N.Y. App. Div. 1982); ii. D intends to rape girl but repents after she resists (P. v. McNeal (Mich. App. 1986)); b. So D who intended to rape girl but who voluntarily repented before doing so not guilty (Ross v. S. (Miss. 1992). Attempt to aid?
1. is complicity under MPC SS 2.06(3)(a)(ii). P. v. Kraft (Ill. App. Ct. 1985, AM 96)
1. D, after driving victims off the road, shot at them. Afterwards, remorseful, D shot at police. But, D never intended to hurt anyone. Even though murder only requires knowledge of a high probability of death resulting, attempted murder requires intent to kill. P. v. Rizzo (N.Y. 1927, 555)
1. D tried to rob victim but they never found victim before cops intercepted them. Since they had never reached the person they intended to rob, they are not guilty of attempted robbery. U.S. v. Harper (9th Cir. 1994, 569)
1. D waited for ATM repairman after rigging machine. Cops found them early. Not yet attempt. U.S. v. Jackson (2d Cir. 1977, 565)
1. Ds searched bank, planning to rob it, but had bad timing. They rescheduled, but the second time they were caught. This was "strongly corroborative" of a substantial step. S. v. Davis (Mo. 1928, 571)
1. D hired undercover cop to kill lover's husband. Since under common law solicitation by itself is not a substantial act, D is not guilty of attempted murder. P. v. Dlugash (N.Y. 1977, 577)
1. D intended to kill victim who looked like he was dead; unclear whether the victim actually was dead, however. Regardless, if what D thought he was doing was killing, he is guilty of attempted murder. Squibs
1. Thacker v. C. (Va. 1922) a. D shot at tent not intending to kill victim, and his bullet missed. Even though a hit would be murder, since D did not intend to kill, not attempt.
2. P. v. Thomas (Colo. 1986) a. D accidentally shot victim, but didn't intend to kill. D is guilty of an attempt to commit reckless manslaughter.
3. U.S. v. Church (A.C.M.R. 1989) a. D who was videotaped paying undercover cop to kill wife and who, after, told cop "thank you" guilty of attempt. Basically fired off a missile believing it would kill wife.
Criminal Solicitation a. Rule i. (MPC)
IV. 2. (CL)
1. D is guilty of criminal solicitation if D acts with purpose of promoting/facilitating an offense by commanding, encouraging, or requesting another person to engage in conduct that would be a crime, an attempt, or complicity (SS 5.02(1)), a. even if solicitation is uncommunicated, (SS 5.02(2)). b. unless D renounces criminal purpose (SS 5.02(3)). Solicitation is incorporated into attempt (SS 5.01(2)). Solicitation is an independent crime; a. (many) i. punishable as attempt if it represents a "substantial step" (U.S. v. American Airlines, Inc. (5th Cir. 1984). b. (others) i. can never be attempt because it is not D's purpose to commit offense personally.
Analysis i. Uncommunicated?
1. It is immaterial whether D fails to communicate with the person he solicits if his conduct was designed to effect such communication (SS 5.02(2)).
2. An uncommitted solicitation may be sufficient for aiding and abetting, supra (Tally hypo). Cases
1. U.S. v. Church (A.C.M.R. 1989) a. D who was videotaped paying undercover cop to kill wife and who, after, told cop "thank you" guilty of attempt. Basically fired off a missile believing it would kill wife.
2. S. v. Davis (Mo. 1928, 571) a. D hired undercover cop to kill lover's husband. Since under common law solicitation by itself is not a substantial act, D is not guilty of attempted murder.
Criminal Conspiracy a. Rule i. (MPC)
1. D is guilty of conspiracy with another person to commit a crime if, with purpose of promoting or facilitating its commission, a. D agrees that one or more will engage in criminal conduct; or b. D agrees to aid other person in planning or commission of such crime (SS
5.03(1)), and c. D conducts some overt act (no such thing as implied conspiracy) (SS 5.03(5)). i. Even if D does not know other people, unless
1. D thwarted the success of the conspiracy by renunciation of criminal purpose (SS 5.03(6)), or
2. D abandons the agreement by informing co-conspirators or law enforcement (SS 5.03(7)).
2. This also requires continuation before statute of limitations expires (SS 5.03(7)).
3. Liability is limited to crimes to which D agreed to commit (SS 5.03(2)), and
4. Unilateral conspiracies are always fine (SS 5.04). ii. (CL)
1. D is guilty of a conspiracy if D purposely enters into a partnership in criminal purposes, punishable even if the crime is not committed (U.S. v. Kissel (U.S. 1910)), or a. D has knowledge of illegal activity and attempts to further it (Lauria).
2. Importantly, acts of co-conspirators are attributable to all other co-conspirators if acts are: a. in furtherance of the conspiracy, b. within the scope of the conspiracy, c. and reasonably foreseeable (Pinkerton).
3. Unilateral conspiracies are often OK, unless D has immunity or conspiracy has too few people.
4. There is no conspiracy for two people agreeing to violate crime that requires two or more people (Wharton's rule). b. Analysis i. Enters into?
1. The actus reus of conspiracy is the agreement itself, a. (U.S.) i. (most statutes): and some "overt act" is required.
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