Solicitation ELEMENTS: Intent + some act
- Intent that underlying offense be committed (high mens rea bc act req = low)
- He or she commands, encourages, requests (just words sufficient) (any act to achieve goal)
- Another to commit the offense.
Notes:
- Only applicable if the person solicited does NOT commit the crime.
- even if substantive crime has lower mens rea, you have to prove intent
- You sentence them after the act, but before the crime actually happens
- If the crime happens: they become a principal & guilty of the substantive crime (a&a)
- Can merge with conspiracy/attempt as well (if it gets that far)
- You can be charged w/ solicitation of attempted ___ but not attempted solicitation
- Oftentimes, the person being solicited isn’t committing a crime (unless they agree)
- Solicitation by itself is NEVER a crime: Must be “Solicitation of [crime]”
- Note: Place of charge= place where YOU spoke the words
Concerns with solicitation
- What constitutes a serious solicitation?
- Who must come up to whom ?
- What about if the money never passes hands ?
Solicitation: Potential Penalties
- Same as completed offense (very rare)
- Fraction of completed offense
- Fixed penalty (usually a misdemeanor)
Withdrawal from solicitation:
- Common law- you cannot withdraw (in many states, this is still the rule)
- Modern view (in some states): You can withdraw if (1) you make it clear you want out (2) you do it w/ a good heart (not for self-serving reasons; and (3) its effective: u alert potential victim or police
Cases:
- People v. Rubin - Cal Ct. App. 1979
- Dir. of JDL said (in public speech he would pay anyone who killed/maimed Nazi; “im not joking, this is serious”; argued free speech
- Issue: (1) can they prove intent for crime to take place (2) freedom of speech?
- Rule: Brandenburg rule (SCOTUS): w/ F.o.S/solicitation, must consider 1. How imminent incitement is and 2. Likelihood of producing that result
- Holding: even though it is in 5 weeks, still imminent bc national news; also, bc it was broadcasted, risk was greater of it happened.
- Note: Court ignored the intent argument, left to jury
- Dissent: This is F.O.S. issue; he just wanted attn
- People v. Gordan - Cal Ct App. 1975
- Atty charged with solicitation of a bribe; she asked officer to help her plant drugs on an enemy
- They talked about pricing but afterwards she withdrew.
- Rule : In CA: No withdrawal from solicitation: once the words are spoken, the crime has taken place.
- Conrads Law
- Makes it a crime to know someone has suicidal ideation and (1) has a level of control over other (2) encoruages/coerces suicide (3) person does
Attempt ELEMENTS = (1) Specific intent to commit underlying crime + (2) Overt Act towards commision that falls short of completing crime
Notes:
- Key issues with attempt
- What is the standard of proof?
- How do you prove these elements?
- What should the penalty be?
- Impossibility problem ?
- Attempt to commit IVMS (cases w/ neg/reckless mens rea) not possible
- Attempt and conspiracy do not merge: You will have to serve time for both
Sentencing
- Mess: some say ½ of completed crime, some say same, some say depends on degree
- How to fix: Attempt by degree (based on where act falls on the spectrum): Dang prox = same as completed, substantial step = half, any act= misdemeanor
Abandonment:
- Some states allow you to abandon completely
- Others allow it to act as a mitigating factor to decrease sentence
- Once a substantial step is completed, can you abandon the crime?
- Staples says no; 6th Cir. says no; MPC says YES
Cases:
- Mental State | State v. Casey - Utah 2003
- ∆ shot at girlfriend’s head; misfired; and he shot at it again
- Rule: an intent of “knowingly” is not enough for attempted murder in Utah (even though it is sufficient for murder)
- Note: Knowingly allowed in MPC definition; Also, in most states you can get attempt w/ way less of an act; this was a “final step” requirement
- Holding: found that he equally could be convicted of intent so upheld conviction
- Act Requirement | State v. Lee - 11th Cir. 2010 (Substantial Step)
- Internet chatroom case w/ fake mother offering up daughters; att entice-minor
- This is federal case, so it requires the act to be a substantial step
- Issue: Intent is very strong, but the act is pretty weak (never made plans to go)
- Holding: his actions meet sub step req. for enticement
- People v. Mahboubian - NY Ct of Appeals 1989 (Dangerous Proximity)
- Ins fraud case; antiquities; organized a theft; theft was caught in the process; convicted of conspiracy p easily (low act req); issue is act req for attempt
- NY statute reads like an any act req “conduct which tends to effectuate crime”
- Actually it is a dangerously close standard: dissent focuses on this
- ∆ focuses on what was left to be done, prosecution focuses on what was done
- Holding: ∆ G bc of actions | Dissent: ∆ NG bc no dangerous proximity (a lot left)
- People v. Brown - IL Ct App 1979 | The Act Req is CONFUSING
- Pop bottles; just looked in the bin, asked if they wanted to jump in and grab em
- Substantial step req’d by statute; court says ∆ NG bc state can’t prove dangerous proximity (Idiot)
- Shows how the language confuses everyone in regards to the act req
- Abandonment | People v. Staples - Cali Ct. App.
- Rented office space above bank, slowly sawing through ground; started to doubt self, didn’t complete job + was discovered by landlord
- Rule: In CA, there is no abandonment after the act req is satisfied; in this case it was
Impossibility and Attempt Model Penal Code: No impossibility defense allowed : however, easy to twist and read differently)
Modern statutes:
- Have adopted MPC definition of getting rid of impossibility
- Focuses on the dangerousness of the offender (Marcus believes appropriate)
- Currently, convictions based on fake stash rooms and underage agents are standing
Cases:
- Commonwealth v. Henley - PA 1984
- Jewelry store owner bought 5 “stolen” chains; convicted of attempted theft
- Issue: does impossibility serve as a defense where there is a legal impossibility to the crime (bought “stolen” jewelry that wasn’t in fact stolen”
- Rule: If one intends to commit the substantive crime + completes acts necessary to commit the crime, but it is shown that the crime is impossible, ∆ = guilty. Impossibility is no longer a defense.
- Note: Easier would be to change the statute to: It is a crime to receive goods that you believe are stolen.
- People v. Dlugash NY Ct App 1977- what matters is state of mind
- ∆ charged w/ murder, fired gun at person (he claims he thought he was already dead, was acting under coercion)
- Issue: can ∆ be held guilty for murder if first person had succeeded at killing the victim?
- Rule: person can be convicted of attempted murder even if their actions did not constitute the crime in actuality (bc he was already dead)
- United States v. Oviedo - what matters is the substantive actions taken (crimes?)
- Attempted distribution of heroin (but it ended up not being heroin); he claimed he knew product was fake
- Rule: To convict of the attempt, you must prove that his acts (not considering his guilty mens rea) were criminal - WRONG
- Solution: Whoever sells what they believe to be is illegal drugs is guilty of attempt to sell
Where does it come up?
- White Collar Crimes w/ Undercovers
- Drug Cases (Stash house cases) (side note: issue of entrapment here)
- Chatroom cases w/ undercover “underage” users
Legal Impossibility - What the ∆ is trying to do, even if completed, wouldn’t amount to a crime
- Sometimes defense to an attempt crime (not MPC)
Ex: Lady Eldon’s lace
| Factual Impossibility - Conduct that is a crime, but an unknown circumstances makes it to where it is impossible
- Never a defense to an attempt crime
Ex: Pickpocketing an empty pocket
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Conspiracy Mens Rea: (1) Intent to commit crime + (2) Intent to make agreement
Actus Reus: Any overt act
Why conspiracy? - Inchoate function: stops crime b4 it is committed (everyone agrees w/ this purpose)
- Group crime more dangerous (not everyone agrees) : Less likely to withdraw, increases likelihood of crime being completed : Bigger risk of other crimes being committed
- Allows for more prosecutions/one trial/witnesses called once (especially for complex crimes): spillover culpability (more evidence against A strengthens case against B)
- Incentivizes plea deals
- Way to deal w/ organized crime (however, that isn’t what mainly used for)
| Why Not? [Krulewitch v. US] - crime of conspiracy “stretched beyond reason” and too vague
- issue w/ Pinkerton for sustaining conviction of crime ∆ had no knowledge/participation w/
- problem w/ vagrant nature of crime: (6th amendment issue: jury where crime committed)
Evidence may lead to accused being confronted in ct w/ facts/actions/statements he never knew ab - Co∆s may accuse/contradict each other; in a sense, convicting each other
|
Notes:
- Does not merge (conspiracy to commit X + crime of X)
- More common in federal ct (better at dealing w/ it + usually across state lines)
- Venue: can be where ANY part of the crime took place
- Judges have discretion whether or not to convict together
- If severing: can do so by locality, common witnesses, timeline, big fish/lil fish, strength of evidence
- Co-conspirator accountability: if ANYONE in conspiracy commits another crime while connected to that conspiracy: all players can be found culpable (it was foreseeable)
- Hearsay exception: Co-conspirator hearsay (if someone on the chain says something incriminating, it can be applied to EVERYONE)
- Difference between accomplices + co-conspirators:
- Co-conspirators need an agreement (implied or explicit) - A&A doesn’t
- Act requirement lower for co-conspirators (ANY overt act)
- Statute of limitations goes towards the last act by anyone (even if someone quit 15ya)
2 kinds of conspiracy
- Wheel - players all relate to one person in the middle (hub) but not know each other (spokes)
- Plays liable for crimes of others bc even if they don’t know each other, they’re each beneficiary of the other’s agreement
- Harder to prove (each claims only interacted with key player)
- liable for others actions if it can be proven they knew of existence of others
- Chain:
- Standard conspiracy : community of interdependence of interests
- Oftentimes, people lower on chain try to sever themselves (many take pleas)
- Link from end to end
Withdrawal and conspiracy - 6 takeaways
- If person withdraws before overt act- then failure of proof on gov’t (no act req)
- Person can raise withdrawal of affirmative defense after over act happens (option available in about ½ of states)
- If she withdrew after over act- conspiracy complete (G) but NG of substantive crimes (that haven’t happened)
- Withdrawal important w/ statute of limitations (clock stops at withdrawal)
- Being incarcerated ≠ withdrawing from conspiracy (must take affirmative act)
- Has to be timely and effective (in good faith and alert law enforcement)
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