CRIMINAL LAW OUTLINE

What Is Crime?

Morality and harm, as filtered through the process of democracy and politics. It is sometimes
arbitrary and always changing.

Minnesota & Federal law do not recognize common law crimes.

I. Elements:
a. Provable Act/Omission
b. Violates an Express Criminal Statute
c. Has a possible sanction of jail or prison
d. Committed by someone at least 14 years old

II. Jurisdiction:
a. Minnesota:
i. Committed in MN;
ii. Caused, aided or abetted someone else in MN; or
iii. Intentionally caused a result in MN prohibited by MN law
b. Federal:
i. Federal Interest
1. On federal property
2. Via commerce clause (i.e. drugs)
3. Direct federal interest (federally insured banks)
ii. Jurisdiction of a specific federal district
1. Not division
2. i.e., District of MN
3. Same rules as state
III. Misdemeanors in Minnesota
a. Gross Misdemeanor: crime with a possible highest sentence of 91 days – 1 year in
prison
b. Regular Misdemeanor: Crime with highest possible sentence of not more than 90
days
c. Petty misdemeanor: no jail time, not defined as a crime

Elements

Most crimes require the following elements: (1) identity; (2) actus reus; (3) mens rea or strict
liability; (4); prior convictions; (5) scientific; (6) jurisdictional (see above)

I. Identity
a. You have to prove the defendant is actually the person who committed the crime
b. Evidence used:
i. Eyewitness testimony
 ii. DNA/fingerprints
iii. Video or audio recordings
iv. Documents (i.e., work records)
v. Motive and opportunity
vi. Confessions
c. Case illustrations: ID can be particularly difficult to prove in bank robbery

II. Actus Reus

a. Definition: physical part of the crime; either a (1) voluntary act or (2) omission to
perform an act required by law
b. Voluntary Act: bodily movement over which actor has control
i. Possession – if the defendant was aware of the possession and had the
opportunity to terminate the possession
1. Possession can be actual or constructive (US v Jameson)
2. Actual = person has direct physical control over a firearm at a
given time
3. Constructive = a person “knowingly holds the power and ability
to exercise dominion and control over a firearm”
A. This is knowledge + access
B. Proximity alone is insufficient to establish this, but can
often be inferred from circumstantial evidence that includes
more than mere proximity
ii. Types of action:
1. theft,
2. perjury,
3. illegal immigration,
4. drug trafficking,
5. tax evasion,
6. passing counterfeit money,
7. possessing burglar tools
c. Omission: failure to act
i. There is no general duty to act, therefore this only comes into play if the
defendant had some affirmative legal duty to act. A duty can arise from:
1. Statute/regulation imposing a duty
A. U.S. v. Park, wherein CEO of a company is charged with a
crime under the FDA about rats in a food facility
i. CEO got a letter from the FDA and turned it over to
his VP for legal affairs, who said the Baltimore VP
was dealing with it. That’s all he did.
ii. Public interest in food purity warranted
imposition of this standard of care
B. US v Brantley: Brantley and her boyfriend (Morris) were
pulled over by the police and the boyfriend shot and killed
two officers. They split up, she hides car, they
communicate by text
i. Case for Misprision
 ii. Elements:
1. principal committed felony,
2. defendant knows it and
3. fails to inform authorities and
4. also takes steps to conceal crime)
2. Special relationship between people (i.e., parent and child)
ii. D is not liable if the defendant is physically incapable of acting
d. Good Samaritan Laws
i. In MN: someone who witnesses the discharge of a gun and knows/has
reason to know the discharge caused bodily harm has a duty to investigate
and give reasonable assistance

III. Mens Rea

a. Definition: guilty mind (i.e., criminal intent, culpability, mental state, and fault);
required in most crimes but not all
i. General Intent: defendant had intent to perform prohibited act, not
necessarily to cause any specific result
ii. Specific Intent: defendant intended to perform prohibited act AND to
bring about prohibited result
b. Four Key States of Mind
i. Intent (almost always)
ii. Knowledge (almost always)
1. Deliberate Ignorance as Knowledge
iii. Recklessness (not so rare, homicide from degrees 1 to 3)
iv. Negligence (very rare – negligent homicide, omission crimes)
1. Gross Negligence
c. Knowledge
i. MN: know requires only that the actor believes that the specific fact exists,
does not mean knowledge of the law
ii. Case Illustrations:
1. US v Pennington: the truck drivers who claim not to know that
they were transporting drugs
2. U.S. v Shaw: case with sawed off shotgun, knowledge shown
through:
A. use of weapons generally and
B. fact that barrel was plainly visibly shorter
3. Traci Lords case – mistake of age defense;
A. knowledge of a minor’s age was not an element of the
offense listed in the statute
B. This type of crime is now strict liability
d. Intent
i. In MN…
1. Purpose to do a thing; or
2. Purpose to cause a result; or
3. Believes act will cause that result
ii. Transferred Intent
 1. Key factors to determine if intent can be transferred:
A. surrounding circumstances,
B. threat made,
C. use of a weapon,
D. outcome
2. If you intend to shoot John but instead hit Bill, your intent is
transferred
iii. Proving Intent
1. Confession
2. Circumstances – ordinary inference is that person intends the
logical consequences of his actions
A. US v Campos – meth case where the guy got a lot of meth
at a bar for a good deal; charged with intent to distribute
i. Circumstantial evidence can be used to show
intent
ii. Just because the judge believed meth was for his
addiction, doesn’t mean that a reasonable jury
couldn’t find he was guilty of intent to distribute

iv. Mistake
1. Mistake of fact – having a fact wrong can negate knowledge or
intent
A. i.e. shooting at someone’s car thinking no one is in there
2. Mistake of law – rarely a defense

IV. Responsibility
a. Insanity
i. See defenses below
b. Diminished Capacity
c. Intoxication
i. In MN, acts committed while voluntarily intoxicated are not any less
criminal
d. Childhood
i. In Minnesota, children under the age of 14 are considered incapable of
committing crime

V. Causation
a. Definition: Prosecution must prove the defendant’s conduct was both the actual
cause (cause in fact) and the proximate cause (legal cause) of that result.
i. Actual cause: determined using either but-for test or the substantial-factor
test
1. But-for causation: result would not have occurred without the
defendant’s conduct
A. US v Paroline – possession of child pornography, wherein
prosecution invokes the restitution statute under theory of
“aggregate causation”
 i. Prosecution attempts for millions in restitution
ii. Court rules that they do not need to show but-for
causation, but that it is untrue that victim’s damages
result so immensely from Paroline in particular
1. Many people possess image which is part of
the harm, but also limits Paroline’s role
2. Paroline should not be held solely liable for
restitution BUT he needs to have some
financial liability
3. But-for causation is weak because so many
people possessed the image
iii. Victim is awarded much smaller amount in
restitution
2. Concurrent causes: exist if
A. multiple forces combine to cause a result AND
B. no one of those forces alone would have been sufficient to
cause the result
i. Each force is a but-for cause of the result
3. Substantial-Factor Test: used if
A. multiple forces combine to cause a result;
B. any one of these forces alone would have been sufficient to
cause that result
C. It is impossible to tell which force caused what portion of
the result
ii. Proximate Cause: A defendant’s actions are a proximate cause if the result
is a natural, probable, and foreseeable consequence of those actions
1. Victim’s preexisting condition
2. Intervening and Superseding Causes

Homicide Crimes
Why is murder different: severity, finality, outcome-driven, crime most likely to be reported,
simple/ancient

I. General Murder Elements

a. ID
b. Causation
c. Death
d. Jurisdiction

II. First-Degree Murder

a. MN Murder 1:
i. Premeditation and Intent
1. To consider, plan or prepare for, or determine to commit the act
referred to prior to its commission
2. Timing
a. Cannot be “virtually instantaneous”
 b. Need to have time to have thought and turned away
ii. Felony Murder
1. Rape/Attempted Rape
a. Intent to kill not necessary
2. Other Felonies
a. With intent to kill during
b. Big felony
i. Burglary,
ii. Agg robbery,
iii. Kidnapping,
iv. 1st or 2nd degree arson,
v. Drive-by shooting,
vi. 1st degree witness tampering,
vii. Escape or
viii. Felony narcotics sale
iii. Murder of Specific People
1. Officer/Judge/Attorney/Guard, with intent
iv. Murder + Abuse
1. Killing by child abuse
a. Past pattern of child abuse and
b. Extreme indifference to human life (recklessness)
2. Killing by domestic abuse
a. Past pattern of domestic abuse
b. Extreme indifference to human life
3. Killing while furthering terrorism
a. Extreme indifference to human life

b. First-Degree Murder (Federal)

i. Killing with malice aforethought and premeditation
1. Malice aforethought (see 2nd degree)
2. Premeditation: defendant fully forms the specific intent to kill the
victim an appreciable time before committing the act
a. Time Required – law does not specify, but some
appreciable period
i. Cannot be instantaneous
b. Proving premeditation:
i. Procuring a weapon after intent is formed
1. US v Thomas: Man’s home is vandalized by
ex-girlfriend; he gets his gun and puts it
behind the house. Later, ex-girlfriend taunts
him and he shoots her
a. Court says intent could have been
formed when:
i. He moved gun
ii. He picked up gun and walked
it over
 iii. In the moment before he
started firing
ii. Discussion of killing before act (with others/victim)
ii. Felony Murder:
1. If killing occurs during the commission or attempted commission
of a felony, regardless of whether the defendant actually
harbored malice aforethought
2. Need to prove
a. Underlying felony
i. Inherently dangerous felonies:
1. Robbery
2. Escape,
3. Murder,
4. Treason,
5. Espionage,
6. Sabotage,
7. Aggravated sexual abuse or sexual abuse,
8. Child abuse,
9. Torture against a child,
10. Burglary,
11. Rape,
12. Arson
13. Kidnapping
b. Death occurred “in the perpetration” (or attempt to
perpetrate) of the underlying felony
i. Definition (most jurisdictions):
1. During the course of the underlying felony;
2. In furtherance of the felony; OR
3. When felon is fleeing the scene after
completing the felony
3. Co-felon Liability:
a. Defendant and a co-felon may both be convicted of felony
murder, even if only one of them actually committed the
killing unbeknownst to the other
b. US v Garcia-Ortiz: Security guard being robbed kills D’s
accomplice (i.e. one of the felons is who dies)
i. D goes to jail for felony murder for murder of co-
conspirator (which is bananas?!?!?!)
ii. Defendant needs to only be guilty of committing
underlying felony; malice element is satisfied by
intent to commit the unlawful felony
c. US v Saba – underlying crimes of kidnapping and identity
theft, where victim is presumed dead but no body is found
i. Court rules that they could not show the killing was
done in furtherance of the kidnapping and therefore
this doesn’t rise to felony murder
 ii. You cannot simply infer the murder happened in
furtherance of felony
iii. Killing committed by Enumerated Means

III. Second-Degree Murder:

a. Definition: any killing with malice aforethought that does not qualify as first-
degree murder
b. Federal elements:
i. Jurisdiction,
ii. ID
iii. Defendant caused
iv. Actual death
v. Unlawfulness
vi. Malice Aforethought
c. Minnesota elements:
i. Causes death with intent but without premeditation
ii. Without intent if:
1. During a drive-by shooting
2. While committing another felony with force/violence
3. While attempting to inflict bodily harm on someone protected by a
protective order
d. Malice aforethought
i. Intent to Kill:
1. defendant subjectively intends to kill the victim OR
2. acts with substantial certainty that the victim will die due to his
conduct
ii. Intent to Cause Serious Bodily Harm:
1. Defendant subjectively intends to cause the victim serious bodily
harm OR
2. acts with substantial certainty that his conduct will cause that result
iii. Reckless Indifference to the Value of Human Life:
1. Recklessness in the extreme,
a. defendant is knowingly subjecting others to
b. a high probability or grave risk of death or serious bodily
harm AND
c. does not care whether the death or harm occurs
2. US v Milton: guy who gets sold chalk instead of cocaine shoots at
car with dealer who swindled him; Milton only intends to scare the
guy by shooting out his windows, but ends up killing him
a. Court says malice aforethought is: conduct which is
reckless and wanton and a gross deviation from a
reasonable standard of care
b. The state of mind with which one intentionally commits a
wrongful act without legal justification or excuse

iv. Imputed mens rea

 1. Malice aforethought can occur without intent

IV. Third-Degree Murder (in MN, not federal)

a. Without intent to kill, causes death by an act “eminently dangerous to others and
evincing a depraved mind, without regard for human life”; OR
b. Distributing controlled substance listed in Schedule I or II

V. Voluntary Manslaughter
a. Definition: sometimes called heat-of-passion manslaughter
b. Minnesota Elements:
i. Provoked
ii. 5th degree assault with such “force or violence” that there is a reasonable
foreseeability of death or great bodily injury
iii. Avoid own death due to the threat of another (not co-conspirator)
iv. Providing schedule 3-5 drug
v. Causing death by mal punishment of a child
c. Federal Elements:
i. Intentional killing of a human being (mens rea)
1. Intent to kill;
2. Intent to do serious bodily injury; OR
3. Depraved heart recklessness (mitigated by heat of passion)
ii. In the heat of a sudden and intense emotional state, generated by
iii. An adequate provocation, if
1. Provocation must be one that would arouse the passions of a
reasonable person beyond their ability to control
2. Provocation is not adequate if it arises solely from a defendant’s
unusual sensitivities or peculiarities
3. The defendant must actually be provoked
4. Mere words do not constitute adequate provocation
iv. The killing occurs before a reasonable cooling-off period has elapsed
1. Cooling off Period: occurs if intense passion has subsided,
allowing for reasonable deliberation/reflection
d. As “lesser charge for Murder 2”
i. US v Quintero: man kills his child and is found not guilty of murder 2 but
guilty of voluntary manslaughter BUT there was no proof of provocation
or heat of passion
1. Court rules that heat of passion isn’t the relevant portion, but
intent without malice THEREFORE, gov’t only needed to prove
intent

VI. Involuntary Manslaughter

a. MN Statute:
i. Negligence causing unreasonable risk
ii. Killing someone when believing the victim to be a deer or game animal
b. Federal Statute:
 i. In commission of an unlawful act (not amounting to a felony), or in
commission in an unlawful manner, or without due caution and
circumspection, lawful act which might produce death
ii. Elements:
1. Jurisdiction
2. ID
3. Actual Death
4. Causation of Death
5. Unlawfulness
6. At least one of the following:
a. Killing occurred during commission of a misdemeanor
b. Killing occurred during commission of a lawful act without
due caution and circumspection
c. Killing occurred during commission of a lawful act in an
unlawful manner
c. Criminal-Negligence Manslaughter: actually and proximately causing another’s
death under circumstances manifesting a grossly unreasonable disregard of a
foreseeable and unreasonable probability of death to another
i. Defendant must know of an unreasonable and high risk and
consciously disregard it
d. Unlawful-Act Manslaughter: Death resulting from the defendant’s commission of
an unlawful act that is not necessarily inherently dangerous or a felony
i. Typically, a misdemeanor or a felony that does not trigger the felony-
murder rule

VII. Sentencing for Killing – MN

a. Murder 1: Life in prison
b. Murder 2: 40 years
c. Murder 3 25 years
d. Manslaughter 1: 15 years
e. Manslaughter 2: 10 years

VIII. Self Defense

a. MN Definition: if necessary in resisting or preventing an offense that you
reasonably believe exposes you or another to great bodily harm or death, or
preventing the commission of a felony in your place of abode
i. In home: can kill to prevent a felony
ii. Outside of home: can kill to prevent death/great bodily harm to self or
other
b. Castle Doctrine/Stand Your Ground
i. Castle Doctrine alters traditional rule to justify shootings that:
1. Do not involve imminent threat of great bodily harm
2. Could have been avoided through retreat
ii. Stand Your Ground alters traditional rule to eliminate element of “no
reasonable retreat” for self-defense, even outside of the abode
c. Case Illustration
 i. Branch Davidians – defendants not entitled to self-defense because they
knew it was law enforcement coming at them
ii. Peterson:
1. Can’t rely on self-defense if you provoke attack or are the
aggressor
2. Must take opportunity to retreat or you cannot rely on self-defense
d. Police use of force
i. Police cannot use lethal force on an escaping suspect unless
1. Necessary to prevent escape AND
2. 12 believes the suspect poses a significant threat of death or
serious injury to others if he gets away
3. *WINK*

Robbery and Assault

I. Robbery
a. General Elements:
i. Jurisdiction
ii. Identity
iii. Use or threat of force
iv. Take property from presence of victim
v. With intent to unlawfully deprive victim of that property
b. MN Simple Robbery:
i. Take property from presence of victim
ii. With knowledge of not being entitled to that property
iii. With use or imminent threat of force
c. MN Aggravated Robbery:
i. 1st Degree: Armed or bodily harm
ii. 2nd Degree: Implies possession of weapon
d. Federal Bank Robbery Elements:
i. By force and violence or intimidation
ii. Takes or attempts to take
iii. From the person or presence of another
iv. Money belonging to any bank
1. Oddly does not require entry (can be attempt) or illegality of entry
II. Assault
a. Simple Assault: Does not require contact, but just the threat of injury
i. Elements:
1. ID of the defendant as the actor
2. That the defendant either:
a. Attempted to inflict injury on another or
b. Made a threat to inflict injury, and
3. That the action or threat caused a reasonable apprehension of
immediate bodily harm
b. Felony Assault:
i. Simple Assault + physical contact
 ii. 1st Degree Assault (MN)
1. Assault that causes “great bodily harm”
a. Great bodily harm =High probability of death or causing
serious permanent disfigurement or permanent/protracted
loss/impairment
b. Substantial bodily harm = temporary but substantial
disfigurement or loss/impairment
c. Bodily harm = pain/injury/illness/impairment
2. Use of deadly force against attorney, judge or correctional
employee
3. 20 year max
iii. 2nd Degree Assault (MN)
1. Assault with a dangerous weapon
2. 7 year max, 10 year max if “substantial bodily harm”
rd
iv. 3 Degree Assault (MN)
1. Assault that inflicts substantial bodily harm
2. 5-year max
v. 4th Degree Assault (MN)
1. Assaults another because of actual or perceived race, color,
religion, sex, sex orientation, disaibility, or national origin
2. Gross misdemeanor – up to 1 year in prison
vi. 5th Degree Assault (MN)
1. Misdemeanor assault
2. Acts with intent to cause fear of immediate bodily harm or
death/intentionally inflicts or attempts to inflict bodily harm upon
another
3. Gross misdemeanor if within 10 years of prior domestic violence
against same victim, or within 3 years of domestic violence against
any victim
vii. Vallery
1. Enhancement of simple robbery to a felony only applies to
aggressive physical assaults
a. Does not apply to resisting, impeding, and interfering
c. Dangerous Weapon
i. Two types:
1. Those designed as weapons (guns)
2. Those objects used as a weapon (i.e., desk in US v Gholston)
a. Must intend to use it as a weapon
d. Battery
i. Traditional crime of “harmfully using force against another person”
ii. Usually subsumed under assault statutes

Sex Crimes

I. Definitions
 a. Sexual Act: contact between genitals/anus or mouth, or penetration with finger or
object
b. Sexual contact: intentional contact with genitals/anus/groin/breast, etc
i. Can be through clothing
II. Minnesota Sex Crimes Statutes
a. Relative culpability based on (in part):
i. Penetration/contact
ii. Age of victim
iii. Fear of imminent bodily harm
iv. Force
v. Coercion
vi. Use of a weapon
vii. Position of Authority/significant relationship
viii. Injury to victims
ix. Presence of accomplices
x. Age gap between def and victim
st
b. 1 degree criminal sexual conduct (CSC)
i. Forcible penetration
1. 30 years max + enhancements
ii. Penetration AND:
1. Victim (adult or child) had reasonable fear of imminent great
bodily harm to self or another; OR
2. Defendant used a weapon or fake weapon; OR
3. Victim was injured, and force was used or victim was impaired;
OR
4. An accomplice used weapon or force/coercion
c. 2nd degree CSC
i. Forcible sexual contact
1. 25 years
ii. Contact AND:
1. Victim had reasonable fear of imminent great bodily harm to self
or another
2. Defendant used a weapon or fake weapon
3. Victim was injured and force was used or victim was impaired; OR
4. Accomplice used weapon or force/coercion
d. 3rd degree CSC
i. coercive penetration
1. 15 years
ii. Coercion = use by actor of words/circumstances that cause the
complainant reasonably to fear that actor will inflict bodily harm upon the
complainant or another
1. or the use by the actor of superior size or strength against the
complainant that causes the complainant to submit against their
will
e. 4th degree CSC
i. Coercive sexual contact
 1. 10 years
2. Sexual contact = intentional touching of victim’s intimate parts;
in some situations includes victim touching defendant; may include
touching through clothing
f. 5th degree CSC
i. Nonconsensual sexual conduct
1. 5 years
ii. Consent = words or overt actions by a person indicating a freely given
present agreement to perform a particular sexual act
1. Consent does not mean existence of a prior or current social
relationship or that complainant failed to resist a particular sex act
2. A person who is mentally incapacitated or physically helpless
cannot consent
III. Sex procured by force/threat of force (life max)
a. Elements
i. Federal Jurisdiction
ii. Identification
iii. Knowingly
iv. Caused another person to engage in a sexual act
v. By force or by putting the victim in fear of death, serious bodily injury or
kidnapping
1. Includes unsuccessful attempts
2. No statutory definition for what constitutes force
a. Factors considered include
i. Relative size of defendant/victim
ii. Nature of the force used
iii. Context of the assault
b. Force as the Actus Reus
i. Problematic because then we expect victim to resist
IV. Sex procured by coercion (life max)
a. Elements:
i. Federal jurisdiction
ii. Identification
iii. Knowingly
iv. Cause another person to engage in a sexual act
v. By threatening/placing that other person in fear
1. OR fear that someone else will be subjected to death, serious
bodily injury, or kidnapping
b. Case Illustration: victim who is an Ojibwe spiritual leader who says that abuse
was ordained by spirits
i. Threats of rejection by spirits were combined with physical abuse
ii. Victim was child at start of abuse
V. Non-consensual sex (2-year max)
a. Elements:
i. Federal jurisdiction
ii. Identification
 iii. Knowingly
iv. Engaged in sexual contact
1. Intentional touching, either directly or through the clothing of the
genitalia, anus, groin, breast, inner thigh, or buttocks of any person
with an intent to abuse, humiliate, harass, degrade, or arouse or
gratify the sexual desire of any person
v. Without permission of the other person
b. Two variations
i. While victim is conscious
1. Difficulty in proving a lack of consent
2. Evidence of lack of consent:
a. Prior sexual assault
b. Victim’s actions
c. Eyewitness testimony
d. Circumstances
ii. While victim is unconscious/impaired
1. Victim is incapable of appraising nature of conduct; or
2. Physically incapable of declining participation in, or
communicating unwillingness
VI. Sex with minors (15-year max)
a. Federal Statutes
i. Over 11, Under 16
1. Sexual contact or sexual act
2. With at least a four-year age gap
3. Statutory maximum of 15 years
ii. Under 12
1. Aggravated
2. With at least four-year age gap
b. Defenses
i. Knowledge: Defendant reasonably believed victim to be over 16
1. Affirmative defense, gov’t does not need to prove defendant
knew age of victim
VII. Sex Trafficking

Theft/Property Crimes

I. Types of Property Crimes

a. Larceny: non-forcible, nonconsensual taking of property

b. Burglary: Entering a building to take property or commit another crime (larceny +
entering)
c. Robbery: Taking property through force or intimidation (larceny + force/threat)
d. Embezzlement: Converting property with which you have been entrusted (larceny
+ violation of trust)
e. Fraud: Taking property through false pretenses (larceny + trickery)
II. Larceny – Simple Theft/Unlawful Taking
a. Definitions:
i. MN: Defendant (1) intentionally and (2) without claim of right (3) takes,
uses, transfers, conceals or retains (4) possession of moveable property (5)
of another (6) without the owner’s consent (7) and with the intent to
deprive the owner permanently of possession of the property
ii. Federal: The (1) trespassory (2) taking and (3) carrying away of (4) the
personal property (5) of another (6) with the intent to deprive the owner
permanently of the property
b. Elements:
i. ID
ii. Intentionally taking a thing of value
iii. Without consent or right
iv. With intent to deprive owner of value of thing
c. Sub-types of Larceny
i. Mail theft – taking by theft/deception and buying/receiving stolen mail
1. US v. William:
a. Intent to deprive is an element of mail theft
b. A jury may infer D stole an item of mail if it was: Properly
addressed, recently mailed, never received, found in
possession of defendant
ii. Fencing Laws – allow criminalization of people who are in possession of
stolen goods
iii. Bank Larceny:
1. US v Leke: can be convicted of bank larceny w/out physical
evidence or evidence of sudden wealth to link them to crime
(ID element)
2. Carter v. US
a. Larceny has 3 distinct elements not found in bank robbery:
i. Specific intent for larceny
ii. Asportation required for larceny
iii. Value must exceed $1,000 for larceny
3. Lesser included offense cannot contain an element not in the
higher-level offense

iv. Theft of things other than objects:

1. Data
2. Trade Secrets
a. US v Nosal: Guy leaves job, continues to access client info;
non-physical things can be stolen and a trade secret does
not exclude publicly available information
i. Matters that Nosal signed confidentiality
agreement RE data
ii. Matters that lists were marked “propre
3. Identity
 a. US v Doe: victim’s uncle sold his birth certificate and SSN
to a guy
i. Only a crime if an actual perosn’s ID is being
used (and D knows that)
ii. Creating a false ID from scratch does not create
same criminal liability
III. Burglary
a. Elements
i. ID
1. US v Martin: ID is often contested, role of circumstantial evidence
a. Seen casing the store
b. Possession of burglar tools before/after burglary
c. A bag of pills (unclear if from the store)
d. Possession w/ intent to distribute narcotics
ii. Illegal entry into the building
1. Entering illegally; OR
a. US v Eagle Bear: Issue of illegal entry
i. Jury concluded there was an illegal entry
ii. Court says entry was illegal even if someone (not
owners) let them in
1. Not required to be breaking and entering,
just entering unlawfully in this
jurisdiction
2. Unlawfully remaining in a place beyond welcome
3. Entering for a purpose not allowed to
iii. Intent to commit crime in building
1. Formation of Intent
a. US v Williams: Guy gets locked between the doors after
trying to enter bank with felonious intent; he pleads guilty
and asks for sentencing guideline for burglary but judge
denies it, says he gets robbery because of bank
enhancement
i. COA reverses this, says all he did here is enter with
felonious intent – which is burglary, not robbery
1. Indictment omitted reference to use of force

IV. Embezzlement
a. Elements – key element is conversion/improper use of property D is entrusted
with
i. ID
ii. Fraudulent conversion of
iii. Property of another by
iv. Someone lawfully entrusted with property
1. D was legally allowed to possess property of someone else (bank
tellers, cashiers, armored car workers, etc.)
 2. US v Sayklay: bookkeeper at a bank using checks to steal from
other employees
a. She was not legally entrusted with other employees’
personal money so therefore not embezzlement
3. US v Wiseman: she transfers pension funds for employees into
general operating fund of business
a. Intent to repay/“just borrowing” isn’t generally a defense
b. Embezzlement can be for a purpose other than personal
use (i.e. for business, not her directly)
4. US v Molnar: officer took money from evidence room to pay
personal bills; Q about sentencing enhancement for “impairing
work of law enforcement”
a. Since $ couldn’t be used for drug buys anyway, this
enhancement is thrown out
V. Fraud
a. Elements
i. ID
ii. Obtaining property of another
iii. Through knowing misrepresentation/deception
1. US v Stephens: Technical support guy added to his own pay
through time and expense reports, arguing there were no rules on
add to pay function; convicted of wire fraud
a. Evidence sufficient to convict “implied representation that
it was for purposes related to work”
iv. With intent to defraud
1. US v Dupre: charged with wire fraud for running scheme where
people paid to get Ferdinand Marcos’ frozen funds
a. She believed God directed her to conduct this scheme; used
this as a way to challenge government’s ability to prove her
state of mind
b. Court holds that gov’t must prove D intended to
mislead/deceive another to that person’s financial
detriment
i. No matter how deceptive, not fraud if
devised/carried out in good faith
ii. But court says the psych eval can’t be admitted
because it sort of lays an insanity defense without
properly introducing one and would confuse jury

Narcotics

I. Seriousness of Offense:
a. Type of Drug
i. Schedules (federal)
1. Schedule 1: marijuana, heroin, LSD, ecstasy, shrooms
2. Schedule 2: cocaine, meth, oxy, adderall/Ritalin, Vicodin
 3. Schedule 3: Tylenol with codeine, ketamine, anabolic steroids,
testosterone
4. Schedule 4: Xanax, soma, darvocet, valium, ambien
5. Schedule 5: robatussin AC, Lomotil, motofen, lyrica, parepectolin
b. Weight of narcotics (selling, manufacturing, etc)
i. Possession – federal misdemeanor
ii. Selling
iii. Manufacturing
c. Role does NOT play a part
II. Simple Possession
a. Elements
i. ID
ii. Actual or Constructive Possession
1. Actual: on person
2. Constructive: must have
a. Dominion
b. Control
c. US v. Dorman: D doesn’t own house and claims not to live
there but Mom said he stayed in basement room where
drugs were found
i. Issue of constructive possession
ii. Drugs, gun and D were in different places where
multiple people had access
iii. He did not show dominion and control (req for
constructive possession
iv. Apology to mom was not enough
d. US v Clark: Police stop guys in Jeep Cherokee and Clark is
cuffed and put into the car. Later, crack is found where he
had been sitting
i. Charge is thrown out because evidence was not
sufficient
ii. Proximity is not enough for constructive
possession
b. Gonzalez v. Raich: federal authorities have jurisdiction under law and commerce
clause to raid intrastate (even intra-home) pot operations
III. Intent to Distribute
a. US v Washington: Washington bought crack for himself and friends to share it
(they pooled money); he was making no money from it but charged with intent to
distribute
1. Conviction is upheld bc no requirement of sale exists
b. US v Tran Trong Cuong: Dr. who prescribed drugs for other than legitimate
medical purposes; basically would deal opioids to patients in return for co-pay
1. Convicted for prescribing drugs outside the bound of his
professional medical practice
2. More than negligence standard – show that prescribing was done
for a purpose other than legitimate treatment (i.e., enrichment)
 c. US v Louis – freight truck carrying narcotics was seized and driver was convicted
of conspiracy and possession with intent to distribute
1. D contests knowledge aspect – says he knew it was something
criminal but court finds insufficient evidence of knowledge that
boxes contained a controlled substance

Firearms

I. Statutes restrict:
a. What guns can be possessed:
i. Fully automatic weapons/machine guns
1. US v. Camp: D replaced trigger with electrical device that allowed
user to pull once on device to shoot everything in clip, essentially
making it an automatic weapon
a. 5th circuit finds this device is a trigger
i. Prevents easy circumvention of statute
ii. Short-barreled shotguns/rifles
iii. Gun without serial number
1. US v Abernathy: felon with an obliterated serial number; lawyers
on both sides convinced him that government did NOT need to
prove he knew serial number was obliterated
a. Court says Pros DOES need to prove knowledge
2. US v Haile: convicted of several crimes related to drugs and guns,
including possession of gun without a serial number; D claims not
to know serial number was obliterated
a. Court says constructive possession of the gun does not
create inference of knowing serial number was
obliterated
iv. Silencers
1. US v Dukes: Dukes and girlfriend did a drive-by shooting and a
search of their home finds a meth lab and silencers; they ask for
silencers back
a. Gov’t says silencers are quasi-suspect (meaning you can
see what they are)
b. Regardless, jury rules they know it is a silencer
v. Destructive devices (bombs, some large-bore weapons)
1. US v O’Neill: D possesses a cardboard pipe bomb; issue is
whether D can be detained pending trial
a. Court says detention is justified given level of danger
presented – “clear and convincing evidence” standard
i. He had already blown off his own leg with a pipe
bomb
ii. Racist posters were present
b. Which people can possess a gun
i. People convicted of felonies
ii. Those convicted of misdemeanor domestic violence
 iii. Those who use controlled substances (“user of and addicted to”)
1. US v Carter: D had smoked pot for 15 years and had 2 guns in
closet; he challenged case on 2nd Amendment grounds
a. Intermediate scrutiny was applied and court finds
compelling government interest in avoiding drug-based gun
violence
2. US v Carter (pt 2): Carter then challenges connection b/w violence
and marijuana use; saying study that found adolescents who
smoked weed were twice as likely to engage in violence as adults
as correlation not causation
a. Court says correlation is enough
iv. “mental defectives” (not in MN law)
v. Aliens who are unlawful or hold non-immigrant visas (not legal aliens in
MN)
vi. Those dishonorably discharged from military
vii. Some subject to restraining orders
c. How or where a gun can be used
i. Carrying/using a firearm during an in relation to a narcotics/violent crime
(open weapon)
1. US v Watson: man bought a gun and paid the guy with oxycontin;
issue: is this using the gun? He was obtaining a gun, not using it to
obtain something else
a. Court holds that selling a gun is not equivalent to using
a gun
ii. Possessing a firearm in furtherance of narcotics/violent crime (hidden
weapon)
iii. Reckless handling/use
iv. Pointing a gun at another
v. Reckless discharge in municipality
vi. Possession on school property
vii. Drive-by shooting

Immigration
I. Federal Supremacy in Immigration Law
a. Arizona v. US: Does federal law pre-empt the really racist Arizona immigration
law that basically would give police power to constantly profile brown people
i. Federal pre-emption applies when Congress declares exclusive authority
and when state law conflicts with fed law
II. Illegal Entry
a. Misdemeanor or Civil Offense (1st Offense)
III. Immigrant Smuggling
a. US v Yoshida: smuggling operation to transport people from China -> Thailand
-> Japan -> US; immigrants told to follow Yoshida onto plane
i. Yoshida does not speak to immigrants but possessed 2 of their baggage
claim checks that she tried to destroy; said she was headed to non-existent
hotel
 ii. She challenges that she knew they were undocumented and that she
knowingly encouraged/induced them to travel to US
iii. Convicted – while mere presence not enough, Yoshida directed them to
right flight and hid baggage checks for them; she had no “benevolent”
reason to do what she did, so jury could infer she was paid
b. US v Cortez Meza: Victims dated/befriended a defendant in Mexico and were
then enticed to come to US through threat/promise of work/romantic tie; then
forced into sex/labor trafficking; D says they were volunteer prostitutes
i. He challenged admission of victim’s diaries as prejudicial but this
challenge was denied
IV. Immigration Fraud
a. Maslenjak v. US: She was naturalized as a citizen after she and husband received
refugee status. This underlying refugee status was basically granted upon a lie,
because the husband actually participated in the genocide. During Natz, she
claims she did not give false/misleading info and did not lie to gain entry
i. Gov’t charges her with crime of immigration fraud and convicted but this
is overturned bc of jury instructions, which should allow conviction if
truth would have lead to further investigation
b. Marriage Fraud
i. US v Orellano-Blanco: Boehm testifies against husband saying marriage
was a sham marriage; they never lived together but he gave her money
before and after divorce; he claims it was a real marriage but not a great
one
1. She claims she only married him so his family would paint her
truck, that she met him in the car on the way to the wedding and
that after she was dropped off at home
2. Court says that just because they married for a green card
doesn’t make it a sham
V. Re-Entry After Deportation
a. Alien who was deported and re-enters commits a felony
i. Enhancements if convicted of crime before prior removal
b. US v Harvey: D challenges sufficiency of evidence showing he actually left the
US; evidence included a deportation warrant
i. Evidence included deportation warrant and officer’s statement that he left
country
VI. Employment of Undocumented Aliens
a. Employing undocumented aliens
i. US v Tipton: Six undocumented workers employed at restaurant using
fake IDs; D provided them housing in her name
1. Charged with harboring illegal aliens, hiring unauthorized aliens,
and conspiring to hire and harbor illegal aliens
2. Evidence he hired them from truck stops, treated them
different than other employees, paid them in cash below min
wage
b. Peonage (compulsory service in payment of debt) often involves legal aliens
Attempt
I. Elements
a. ID
b. Intent to commit a crime
i. Must intend action and outcome of crime
ii. Does not include general intent crimes like felony-murder or involuntary
manslaughter
c. Overt Act (actus reus)
i. An act beyond mere preparation that is a significant step towards
committing a crime
1. US v Resendiz-Ponce: Man had previously been deported twice
from US and tried to walk into the US using cousin’s photo ID
a. Conviction reversed by 9th cir because no overt act was
alleged in the indictment
b. SCOTUS reinstates conviction because indictment was
sufficient to give notice
2. US v Nelson:
a. Facts: Agents posed as drug dealers seeking to launder
money by buying used cars from Ds. Despite boss saying
no, Rahlf and Nelson go forward with it and work out a
deal with the agents. They are charged with conspiracy to
attempt financial transactions involving property
represented to be drug proceeds.
b. Issue: Was an overt act completed?
c. Holding: No. Nelson’s acts were “too tentative and
unfocused” to be an overt act. Must cross the line b/w
prep and attempt by unequivocally demonstrating crime
will take place. Step needed to be “of such substantiality
that, unless frustrated, the crime would have occurred.”

II. Impossibility
a. Does not matter if it is possible to actually commit crime, unless impossibility
would be clearly evident to person of normal understanding
i. Basically, just because it’s an undercover cop/informant, doesn’t mean
you don’t commit attempt
III. Abandonment
a. Defense: crime was not committed because the D desisted voluntarily and in good
faith and abandoned the intention to commit the crime
IV. Penalties
a. ½ the max for the underlying crime
b. 20 year max for crimes with life as max (i.e. attempted premeditated murder)

Conspiracy
I. Elements (General Conspiracy)
 a. Agreement
i. Defines both existence and extent of conspiracy
ii. Agreement to:
1. Work with another/others
2. Towards an illegal goal
a. US v. Burton: Two guys enter bank and D’s car was used
to get them there; once guys in attempted to rob bank. D’s
car was found running and abandoned in a car wash and he
later reported it stolen
i. D challenges proofs to agreement to participate in
robbery but concedes he was aware of plan; contests
that he “allowed” them to use car
ii. Court rules he agreed to participate because ev
established that he was associated with robbery, he
participated and he sought by action to make the
venture succeed
b. Intent
i. To work with another
ii. To achieve illegal goal
c. Knowledge
i. Knowledge of scheme in order to form intent
1. US v Grassi: Conspiracy to possess, transfer and transport
unregistered firearms (silencers)
a. One does not become a coconspirator simply by virtue of
knowledge of a conspiracy and association with
conspirators – essence of conspiracy is agreement to
engage in concerted unlawful activity
2. US v Feola: Feola and pals arranged to sell fake heroin, and say if
any problems arise they’ll just beat up the buyers, not knowing
buyers were undercover federal agents; deal goes bad and they are
charged with conspiring to assault federal officers
a. Statute does not require knowledge that target of
assault is a federal officer

d. Overt Act
i. Must be within the scope of the agreement
1. US v Mohamed: conspiracy to commit mail fraud; white helped
student get driver’s license by providing answers through
translator; he was mostly the director of the scheme
a. Overt act can be committed by any co-conspirator
b. Gov’t doesn’t need to prove that HE specifically committed
the overt act

II. Types of Conspiracy

a. Narcotics
i. Does not require overt act
 1. US v Shabani: D convicted on conspiracy to distribute narcotics
but moved to dismiss due to no overt act being alleged
2. SCOTUS affirmed that no overt act is required, agreement is the
actus reus
ii. Sentence is equal to that of the underlying offense
b. Bilateral
i. At least 2 people genuinely want to carry out the conspiracy
c. Unilateral
i. Only one person really wants to do the conspiracy and others are faking it
(i.e. law enforcement)
ii. Defense: Entrapment
1. Sears v. US: Sears was a sheriff who conspired to evade taxes on
moonshine; through this conspiracy, he basically is only working
with the federal informant who looped him into it and is not
working with anyone else
a. Court holds that conspiracy had to be bilateral
b. Since this case, most jurisdictions have fixed this
through legislation allowing unilateral conspiracies
d. Hub and Spoke
i. Series of connected conspiracies
1. US v Chandler (McMillions case)
a. 43 Ds indicted with conspiracy to commit mail fraud; gov’t
charged one conspiracy but only the head guy really knew
what was happening, the rest of people weren’t in
connection with each other
b. It was, instead like 6 separate conspiracies happening at
once so it was overturned
e. Multiple Act Conspiracies
i. One conspiracy with multiple goals
1. Can be charged as a single conspiracy
2. i.e. selling cocaine and guns
f. Attempt v Conspiracy
i. Attempt is rooted in intent of D
ii. Conspiracy is rooted in an agreement between two people that includes
intent to commit crime
iii. Both are inchoate crimes
iv. Like accomplice liability, used to expand liability for crime beyond direct
actors
g. Buyer/Seller relationship
i. A buyer is not part of the conspiracy
ii. US v Brock: D is charged with conspiracy to distribute crack but claims he
was a mere purchaser from the conspirators
1. Buyer/seller relationship is not a conspiratorial one
III. Rules for Conspiracy
a. Pinkerton Rule
 i. Each co-conspirator is liable for what the others do, so long as the two
things are true:
1. Act was reasonably foreseeable
a. US v. Allen: recruited to join in robbery after target was
selected, D is getaway driver (But wasn’t there when they
came out of the bank)
i. D is convicted of using/possessing a gun during a
crime of violence despite not holding a gun, upheld
under Pinkerton Rule since use of guns was
foreseeable
2. Act was in furtherance of the conspiracy
b. Wharton’s Rule
i. Can’t convict for underlying offense AND conspiracy where the crime
necessarily involves multiple people working together (i.e., dueling)
ii. US v Brown
1. Sims is an inmate and met a victim through a pen pal program. D
was a scammer working with Sims. Victim is scammed out of $.
a. Wharton’s rule doesn’t apply to aiding and abetting
conspiracy because aiding and abetting is simply expanding
the people who can be charged with a substantive crime
b. Aiding and abetting isn’t itself the substantive charge, mail
fraud is and that can be done by one person acting alone
c. Ongoing Conspiracy
i. If you join in on a conspiracy that is ongoing, you are liable for
foreseeable crimes going forward (but not backward) from point in which
you join
ii. US v Johnson: two guys transport drugs from CA to MO; after joining the
conspiracy, the defendants traveled with the group and they agreed to help
so conviction is affirmed
IV. Cases
a. US v Broce: Broce was engaging in bid rigging for construction contracts and he
pled guilty to both; another contractor on the same crime got acquitted and
claimed double jeopardy because it was all one big conspiracy and it worked!
i. Broce wanted out of his 2nd indictment but he already pled guilty
ii. Court rules that because there were two agreements (two contracts), there
were two conspiracies

Accomplice Liability

I. Aiding and Abetting

a. Types
i. Principle of First Degree: Someone who commits the crime
ii. Principle of Second Degree: Someone who aids, counsels, commands, or
encourages crime at time of crime
iii. Accessory before the fact: aids, counsels, commands or encourages before
crime (But not there for crime itself)
 iv. Accessory after the fact: aids, counsels, commands, or encourages after
the crime (but not there for crime itself)
1. One-half of criminal liability of principal
b. Actus Reus
c. Cases
i. US v Ledezma: Did not aid and abet until after the fact, but joined
conspiracy as it was ongoing
ii. US v Calderon: Woman told to go pick up someone who had killed a guy
(not knowing) and she did. She said there was insufficient evidence she
knew the victim was dead or dying
1. Her conviction is reversed bc death is an element of murder
II. Solicitation of a Crime
a. Definition
i. Defendant is liable as a principal actor if they counsel, command, induce,
or procure a crime
ii. Faces full penalty
iii. For prostitution, prohibits someone to become a prostitute, not to hire one
(that’s a different crime)
b. If a Violent Felony…
i. Can be an incomplete crime
ii. ½ the sentence
c. Cases
i. US v White: Defendant was charged with soliciting violent crime against a
juror who leveled a verdict against another white supremacist
1. D released personal info on juror; did not specifically invite
violence but included slurs and outlined the role he played in
conviction
2. D convicted but judge overturns it due to lack of evidence on
solicitation
3. 7th circuit reinstates conviction bc “a reasonable jury cannot be
expected to ignore the autidence of the website”
III. Conspiracy (see above)

Defenses

I. Types
a. Reasonable Doubt
i. Showing reasonable doubt as to one of the elements
ii. Alibi
1. Casts reasonable doubt on ID
2. Most jurisdictions require notice of an alibi
3. US v Zuniga
a. Bank robbed and D is convicted but denied an alibi
instruction; D’s wife offered alibi instruction in trial
b. Court holds that instruction is required even if alibi
evidence is weak
 4. Rebuttal witnesses
a. If alibi presented, government is allowed to re-open
presentation of evidence to rebut alibi
b. Affirmative defenses (shifts burden)
i. Insanity
1. Determines whether person had a mental condition at time of crim
that would prevent culpability
a. Focused on mental condition at time of crime
b. At the time of commission of acts, D as a result of severe
mental disease or defect was unable to appreciate the nature
and quality or wrongfulness of his acts
2. Standard: Did the D understand what was going on at the time of
the crime and that it was wrong?
3. Tests
a. M’Naughten: D didn’t know what he was doing or didn’t
know it was wrong
i. Archaic & hard to get expert testimony bc this isn’t
a modern psych standard
b. Control: D had irresistible impulse
c. Product: D’s act was product of mental disease/defect
d. Model Penal Code: D lacked substantial capacity to
appreciate wrongfulness
e. MN: person laboring under such a defect of reason from
mental illness/impairment, as to not know nature of act or
that it was wrong
4. Timing: plea is raised only during trial
a. You have to be competent to make insanity plea
b. D needs to provide notice and allow exam by gov’t expert
5. Outcomes
a. Guilty
b. Not guilty
c. Not guilty by reason of insanity
6. Cases
a. US v Brown
i. Meth case; D asks for psych eval and gets it; Dr
said that because of PTSD and addiction D was not
able to conform conduct to law or make correct
choices
ii. Dr says he was competent and not legally insane
b. US v Alvarez-Ulloa: defense of insanity rooted in brain
injuries suffered during boxing career; Court holds that D
needed to show he was insane for virtually his entire stay in
US; temporal element stretched out by nature of crime
(illegal stay in US)
c. US v Garcia: D was threatening people with gun while high
and drunk; he had bipolar disorder; instructions say only if
 his mental illness gave rise to acts then can his
consumption of drugs/alcohol not preclude the insanity
defense
i. COA affirms conviction saying no evidence
presented that BPD was caused by substance abuse
ii. Competence
1. Determines whether person has sufficient mental capacity to
withstand court proceedings
a. Focused on mental state at time of that proceeding
2. Standard: Can the defendant understand process and work with the
attorney?
3. Timing: initial appearance, arraignment, competency to plead
guilty or stand trial, competency at sentencing
4. Can be temporary or permanent condition
5. Process:
a. Proceeding stops
i. Can be done by attorney without consent of client
(but can’t violate privilege)
b. D is sent for evaluation
i. Outcomes of evaluation:
1. Found competent
2. Treated to become competent
3. Found incompetent, civil commitment is
pursued
4. Found incompetent, civil commitment is not
pursued
c. Cannot complete process until D is competent
d. This screens out many cases for which insanity might be a
defense
6. Cases
a. US v Kimble: Court summarizes req. of competence as
i. Be able to consult with lawyer w/ rational
understanding
ii. Be able to otherwise assist defense
iii. Have rational understanding of proceedings
iv. Have factual understanding of proceedings
In this case, D has IQ of 55-58. First doctor says D doesn’t
understand rights; second doctor says D would be
competent with accommodations
v. Court says these accommodations are not realistic
given nature of case (conspiracy)
b. US v Sell: Dentist suffering from paranoid schizophrenia
i. Fed Med Center examines him after he is to be re-
arraigned on new attempted murder and fraud
charges; finds him not competent; drugs have to be
administered against will
 ii. Holding: drugs can be administered involuntarily if:
1. Important gov’t interests at stake
2. Meds will significantly further these
interests
3. Is necessary to significantly further those
important gov’t interests
4. Drugs are medically appropriate
c. US v Steil: D plagued with severe mental illness from
childhood; DC found him incompetent and he’s sent to
Rochester to see if he can be made competent
i. He could not be made competent, but because he
was dangerous he was placed in protective
detention
ii. Not convicted of anything, but facing indefinite
imprisonment
iii. Self-defense
1. Definition:
a. Justifiable if necessary in resisting or preventing an offense
which the actor reasonably believes exposes the actor or
another to great bodily harm or death; OR
b. Preventing commission of felony in place of abode
iv. Public Authority
1. D is that crime was committed in service of and at direction of law
enforcements
2. Typically related to informants
a. Key is scope of informant’s work for police
3. D must notify gov’t and court of use of defense
a. No request for instruction necessary (unlike alibi) (???)
b. Notice must describe
i. Agency involved
ii. Office worked for
iii. Time period of public authority
4. Overlapping jurisdictions: campus police, city police, sheriff, state
police, federal agents
5. US v Alvarado
a. D signed contract w/ DEA as informant on drugs and
weapons but on the side he was trafficking drugs and
weapons. He is then prosecuted for these crimes
b. So this public authority defense obviously doesn’t work bc:
i. Official must have authorized the particular
criminal acts committed
1. Not necessary for every discrete act and can
be inferred, but limits
ii. Official must have actually had authority to permit
that activity
c. D went outside bounds of agreement in time and action
 v. Withdrawal/Abandonment/Renunciation
1. Definitions
a. Withdrawal: stop working with others
b. Abandonment: stop working towards a criminal goal
c. Renunciation: action to stop criminal goal from being
achieved
2. Sometimes treated as affirmative defense, other times as a negation
of intent/agreement/actus reus
3. Withdrawal and Attempt:
a. US v Young: Pedophile teacher wanted to have sex with a
14-year-old who was actually an undercover cop. He got
To Catch a Predator’ed.
b. He argued that he went to Super 8 out of concern for
Emily’s safety and he used a maxed-out card because he
never expected it to work
c. He was denied an abandonment instruction
d. Court says D cannot abandon attempt once completed and
he made a number of substantial steps
i. Evidence in car
ii. Travel to hotel
iii. Attempt to check in
4. Withdrawal and Conspiracy
a. Requires an affirmative act
i. Ghosting co-conspirators is not enough
b. US v Maloney: Judge who fixed cases for one of the major
gangs. Plan that attorney would put on a good case so
Judge didn’t look bad. Attorney turned over $ morning of
trial; state case was strong and Maloney called off fix after
trial
i. He was refused a withdrawal instruction
ii. Court says withdrawal only available if D
1. Confessed to authorities; OR
2. Communicated to each co-conspirator that
he had abandoned conspiracy and its goals
iii. Judge had a conditional bribe going, so court upheld
conviction
vi. Necessity/Duress/Entrapment
1. Definitions
a. Necessity: negates actus reus
i. Did the right thing voluntarily, no wrongful act
ii. Threat is usually from force of nature
iii. i.e., there is a mass shooting so I break into a shop
to hide – action is justified
b. Duress: negates mens rea
i. Will is overborne/Made the wrong choice
voluntarily
 ii. Threat from another person
iii. i.e. guy holds a gun to head and demands you call
someone and commit fraud – this isn’t my intent,
but another’s
2. Duress
a. Threat of imminent death/serious bodily harm led D to
commit crime
b. Defendant had no reasonable, legal alternative to breaking
the law
c. Defendant was not responsible for creating threat
d. Exception for Murder
i. You are responsible for first degree manslaughter
ii. But threats cannot come from co-conspirator
e. Dixon v US
i. D buys gun because her boyfriend threatened to kill
her/hurt daughters if she did not. But she was barred
from purchasing guns.
ii. She wanted instruction requiring gov’t to disprove
duress beyond reasonable doubt, but this was
rejected and left with the burden by preponderance
iii. Statute required she act knowingly or wilfully and
SCOTUS says duress does not negate these and is,
instead, an independent defense
1. Underscores that defense bears burden on
affirmative defense
f. Duress as mitigating factor
3. Necessity
a. Elements (under Schoon, varies by jurisdiction)
i. D faced a choice of two evils and chose lesser
ii. Acted to prevent imminent harm
iii. Reasonably anticipated direct causal relationship
b/w action and harm to be averted
iv. No legal alternatives to violating law
b. Economic necessity is not a defense bc capitalism
c. In MN, defense exists where D’s actions were:
i. Necessary because of emergency situation
ii. Peril is instant, overwhelming, leaves no alternative
to criminal conduct
iii. Not available where:
1. D put himself in position of emergency
because it was more convenient
2. Choice of action is necessitated by D’s own
recklessness/negligence
iv. If D gets instruction, gov’t must disprove beyond
reasonable doubt
d. Examples
 i. Prisoner escapes burning prison
ii. Stealing food from cabin if stranded
iii. Destroying house to create firewall
e. Cases
i. US v Ridner
1. Police go to D’s house looking for D with
warrant for arrest. When arrested, he had 3
shotgun rounds. He claims only had to keep
them away from suicidal brother.
4. Entrapment
a. D must show that but for police involvement and
enticement, would not have committed crime
b. Case law def:
i. D was not predisposed to commit charged crime
ii. Before intervention
iii. Of government’s agents
iv. Government’s conduct induced to commit
c. US v Mayfield
i. Stash house case where target is enticed to conspire
to rob stash house full of money/drugs. Once in on
it, D takes active role
ii. District court did not allow instruction and barred
evidence of entrapment
iii. Circuit court reverses saying sufficient showing of
entrapment was there and they should have allowed
defense