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Criminal Law - 2021 Outline - Part 4

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Inchoate Offenses

* Referred to as “incomplete crimes” : not true; Actually, it is just the desired crime that is uncompleted.


ELEMENTS: Intent + some act

  1. Intent that underlying offense be committed (high mens rea bc act req = low)
  2. He or she commands, encourages, requests (just words sufficient) (any act to achieve goal)
  3. Another to commit the offense.


  • 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

  1. Same as completed offense (very rare)
  2. Fraction of completed offense
  3. 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


  • 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

ELEMENTS = (1) Specific intent to commit underlying crime + (2) Overt Act towards commision that falls short of completing crime

The Act Requirement for Attempt


  • 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


  • 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


  • 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


  • 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


  • 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?

  1. White Collar Crimes w/ Undercovers
  2. Drug Cases (Stash house cases) (side note: issue of entrapment here)
  3. 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


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


  • 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

  1. Wheel - players all relate to one person in the middle (hub) but not know each other (spokes)
    1. Plays liable for crimes of others bc even if they don’t know each other, they’re each beneficiary of the other’s agreement
    2. Harder to prove (each claims only interacted with key player)
    3. liable for others actions if it can be proven they knew of existence of others
  2. Chain:
    1. Standard conspiracy : community of interdependence of interests
    2. Oftentimes, people lower on chain try to sever themselves (many take pleas)
    3. Link from end to end

Withdrawal and conspiracy - 6 takeaways

  1. If person withdraws before overt act- then failure of proof on gov’t (no act req)
  2. Person can raise withdrawal of affirmative defense after over act happens (option available in about ½ of states)
  3. If she withdrew after over act- conspiracy complete (G) but NG of substantive crimes (that haven’t happened)
  4. Withdrawal important w/ statute of limitations (clock stops at withdrawal)
  5. Being incarcerated ≠ withdrawing from conspiracy (must take affirmative act)
  6. Has to be timely and effective (in good faith and alert law enforcement)
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