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Criminal Law - Outline - Part 7

By Lindsey Jackson

Download the PDF version of this outline

<< Part 6 | Part 8 >>

VIII. Inchoate Crimes

a. “unfinished” crimes

b. Most common:

  1. Attempt
  2. Conspiracy
  3. Solicitation (accomplice liability)

c. Attempt

  1. Charging failed criminals; we do it to deter and to get people to not try it again; we want to prevent the outcome
  2. Very prevalent: everywhere in statutes
  3. Punishment scheme
    1. Failed punished less than completed crime
    2. Sometimes ½ of the completed sentence
    3. NC: drops a level of crime
  4. 2 types of attempt:
    1. Complete/imperfect: did everything in his power to complete it but something outside the defendant’s control stopped it
    2. Incomplete: there was an action left for the defendant to complete the goal; something/someone intervened
    3. No distinction between these in the law
  5. The Conundrum
    1. Mere preparation or perpetration
      1. When the defendant crosses the line toward perpetration
      2. Mere preparation = no attempt
      3. Perpetration = attempt
      4. Majority: substantial step
  6. Elements of Attempt:
    1. Intent to violate the statute/commit crime (specific intent to commit the target offense)
      1. Specific intent for every attempt
        1. Actus reus go to border and to complete the crime as result of the actus reus
        2. Must intend the crime
      2. The action was a substantial step toward the goal of completing the crime
    2. Take a substantial step toward commission of target offense
      1. Move from mere preparation to perpetration
      2. Issue: should the government have had to put the substantial step specific in the indictment?
        1. Supreme Court says the government did it correctly
          1. Attempt is a generally known word and the government shouldn’t have to define the word
          2. It encompasses the overt act and intent
          3. Don’t have to list how, just have to say attempt
        2. What were the acts?
          1. Providing false ID
          2. Lying to agent that he was legal
      3. Substantial step:
        1. Depends on facts and circumstances
        2. Corroborate strongly the firmness of defendant’s criminal intent
          1. Shows firmness by whole heartedly in it
        3. Conduct necessary to completion of the offense
          1. Important to the crime
      4. Key question: would a reasonable observer who sees this conclude that he engaged in that conduct with the goal of committing the target crime?

d. Merger Rule

  1. Upon completion of the attempted offense, the attempt merges into the completed crime
    1. Can’t charge attempted crime with one that has been completed
    2. Attempted murder changes to murder when the victim dies

e. Conspiracy

  1. Conspiracy = crime (you don’t have to commit the crime)
  2. There is no merger; conspiracy is its own separate crime = charged with conspiracy and completed crime
  3. Idea that conspiracy is a separate evil apart from the action of committing the crime
    1. More likely to do it when you agree with others (accountability/peer pressure)
  4. Co-conspirator evidence can be brought in even if it’s heresay
  5. Can get venue for everyone by acts of one co-conspirator in an area
  6. Conspiracy committed upon agreement and overt act taken in furtherance
  7. Two types of federal conspiracies:
    1. General conspiracy statute
      1. Applies to all crimes
    2. Specialized conspiracy statutes
      1. Ex. Drugs, money laundering, mail and wire fraud
      2. Do not require an overt act and raised penalty
  8. Elements generally:
    1. Two or more people intentionally agreed to commit the crime
    2. Defendant intentionally and voluntarily joined the conspiracy with the goal that the underlying crime be committed
    3. Overt act committed in furtherance of the crime (general only)
  9. Key: agreement
  10. U.S. v. Burton: No evidence the defendant was in the bank. Government’s theory is that he agreed to provide the getaway car. Defendant claims his car was stolen.
    1. Mere association alone is not agreement: you can hang out with bad people
    2. Facts and circumstances show there was an agreement by Burton = conspiracy
      1. Jury can infer from the circumstances
  11. U.S. v. Grassi: Conspiracy to distribute controlled substance and transfer unregistered firearms. Government can only get drugs. Grassi says insufficient evidence of agreement to transfer firearms.
    1. Grassi never participated in a firearms conversation because they could only show he was present (throw out that count)
    2. He was there but did not agree (mere association)
      1. Knew of the conversation but didn’t agree or participate themselves (passively present)
    3. Need knowledge and association and other circumstantial evidence may be enough to show agreement
  12. The Overt Act Requirement
    1. A member of the conspiracy did one of the overt acts described in the indictment for the purpose of advancing or helping the conspiracy
      1. Does not need to be substantial, can be minor and does not have to be illegal
      2. Just needs to further the conspiracy
    2. Purpose is to give people an out → don’t do anything so you aren’t conspiring
      1. Shows seriousness
    3. U.S. v. Mohammed: defendant charged with conspiracy to commit mail fraud. He challenges the overt acts in the indictment.
      1. Additional overt acts were in the instruction instead of the indictment
      2. He said he needed to be proven to commit an act
      3. Only one of the coconspirators needs to take an overt act, it does not need to be the defendant
      4. Inclusion of some overt acts in an indictment does not bar proof of other acts
  13. Pinkerton Liability Rule: “the overt act of one partner in crime is attributable to all”
    1. All members of a conspiracy are responsible for acts of the other members if:
      1. Acts are committed to help advance/further the conspiracy; and
      2. Are within the reasonably foreseeable scope of the agreement
  14. There can be no conspiracy with a government informer who secretly intends to frustrate the conspiracy
    1. need at least two non-government agents in the conspiracy to have one

f. Solicitation

  1. Elements:
    1. Commanding, encouraging, or requesting that another person
    2. Commit a crime
    3. Intent that the other person commits the crime
    4. Defendant’s intent is strongly corroborated
  2. Federal = violent crimes only
  3. State = broader
  4. It is a separate crime
  5. The crime does not actually have to be committed; just one person making the request
  6. U.S. v. White: White supremacist soliciting murder of a juror who was on the jury of convicting another white supremacist.
    1. The government needed to show White posted with intent
      1. Was there an offer or promised payment of other benefit?
      2. Threat to do it
      3. He repeatedly solicited the commission of the offense or expressly stated his seriousness
      4. He knew or believed that the solicitee had previously committed a serious offense, or
      5. Provided what is needed for the crime
    2. Don’t need to show that someone in particular was actually solicited
    3. Not free speech because there is not free speech to solicit crimes
  7. The merger rule applies
    1. Upon completion of the crime = it merges into the target offense
    2. Attempt to complete the crime = merges into attempt
      1. No more solicitation
  8. Punishable as a principal
    1. Solicitor doesn’t commit the crime, but he is held liable for whatever the crime is committed
  9. Solicitation is a stand-alone crime when no one does anything
    1. Merges into conspiracy or attempt
    2. A precursor to other crimes → if any of these happen solicitation goes away = merges
    3. When person being solicited agrees = conspiracy

g. Accomplice Liability: Aiding and Abetting

  1. Common law
    1. Principal = person who committed the crime
    2. Accessory = getaway driver
      1. Punished differently
  2. Modern approach
    1. Punishable as principal = all the same
    2. You never charge someone with aiding and abetting
      1. Charge them with the crime committed
      2. Punishable as principal
      3. Not a separate crime
    3. Aiding and abetting is a theory, not a crime
      1. Charged with crime you aided and abetted
      2. Not complete until completion of the target offense
  3. Elements:
    1. The defendant assisted or encouraged another in the commission of a crime either before or during the crime
    2. Intent to assist with crime
    3. Another actually commits the crime
  4. The cheer leader of a crime is an aider and abetter and they are charged with the crime
  5. U.S. v. Simpson: The defendant drove Grotte to the bank robbery and knew of the gun he possessed. She was charged with possession of a firearm in the bank robbery and charged with bank robbery.
    1. She is punishable as principal
    2. Tries to argue double jeopardy
      1. Congress intent: clearly show intent for two separate crimes
    3. Also tries to argue she didn’t commit the crime
      1. Rejected because of accomplice liability
      2. It doesn’t matter if she knew about the gun

h. Conspiracy or Aiding and Abetting

  1. Conspiracy
    1. Agree with 2 or more people to commit a crime
    2. Overt act (if required)
    3. Target crime does not need to occur
    4. Separate crime
  2. Aiding and abetting
    1. Defendant assists or encourages the principal in the completion of the crime
    2. The crime has to occur
    3. Not a separate crime, theory of responsibility
  3. Pinkerton liability
    1. Some situations with Pinkerton but not aiding and abetting
    2. Broader that aiding and abetting
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