US Criminal – Jan 13

Textbook (493-557)

Chapter 18: Attempt

A. DOCTRINE
 Attempt liability is a form of inchoate liability – a criminal doesn’t need to complete a
crime in order to be convicted
o If he takes the last step he believes necessary to commit a crime but still fails in
his effort, the law calls this a “complete attempt” and he can still be
prosecuted/punished
o If he starts the crime but is caught by the police before he can finish the effort,
the law calls this an “incomplete attempt” and also subject to criminal liability
 The requirements for a punishable attempt are:
o The defendant has specific intent or purpose to bring about that crime
o He takes sufficient steps toward committing the crime to satisfy the jurisdictions
actus reus test
o The two defenses might apply if the crime is impossible to complete OR the
defendant abandoned the effort
 1. Specific intent or purpose: some jurisdictions refer to attempt as specific intent
offense because the defendant must intend to engage in the conduct and must also
intend to bring about the crime
o Heightened mens rea requirement is often thought to compensate or balance
the lower act requirement for attempts
o Since attempt liability requires a heightened mens rea (either specific intent or
purpose) for both the conduct and the result, it is unclear whether it is possible
to hold a defendant responsible for attempting to commit a crime of
recklessness such as involuntary manslaughter
 2. Distinguishing attempts from mere preparation: 6 tests
o Slight-acts test: allows liability if the design of a person to commit the crime is
clearly shown and actor commits even “sight acts” in furtherance of that design
o Physical proximity test: defendant must be close in time and space to the final
act that completes the crime
o Dangerous proximity test: asks whether the defendant was dangerously close to
consummating the offenses – proximity here being a causal concept (not
geographic)
o Unequivocality test: asks whether the defendants conduct unequivocally
demonstrates the defendants intent to commit the crime – an actus reus
requirement that loops back and refers to the mental element
o Probable desistance test: requires that the defendants conduct would result in
the completed crime “in the ordinary and natural course of events” if the actor
had not been interrupted by a third party (such as the police)
 o MPC substantial step test: requires that the defendant engage in a substantial
step in a course of conduct planned to culminate in his commission of the crime
 3. Impossibility: defendants frequently assert an impossibility defense to attempt
prosecutions
o Factual impossibility: occurs when the objective of the defendant is proscribed
by the criminal law but a circumstance unknown to the actor prevents him from
bringing about that objective
 Usually not a defense because it involves a factual element that
prevented the defendant from completing the crime
 Ex. if accused pulls the trigger but his gun jams, he is still guilty of
attempted murder even though it was factually impossible to achieve
desired result (death of victim)
o Legal impossibility: is sometimes considered a defense and sometimes is not
 Pure legal impossibility: cover the trivial circumstances where the
defendant engages in conduct that he thinks is illegal but is not –
defendant cannot be convicted of an attempt in those cases (ex.
defendant walks in public park at 10pm thinking that is the curfew, but it
is really 11pm, he cannot be convicted of attempted trespassing)
 Hybrid legal impossibility: exists if the defendants goal was illegal but the
commission of the offense was impossible due to a factual mistake by her
regarding the legal status of some factor relevant to her conduct; hybrid
because impossibility claim includes both a legal and a factual aspect to it
o Modern approach is to disallow impossibility defenses unless they constitute
pure legal impossibility
 4. Abandonment: if the perpetrator voluntarily and completely renounced his criminal
purpose, but the abandonment must be truly voluntary as opposed to a result of
resistance from the victim or of fear of apprehension
o Ex. if perpetrator abandons a robbery after the victim fights back or because the
police are responding to the scene of the robbery, he cannot claim abandonment
– defendant desisted from robbery because he was motivated by fear of
apprehension by law enforcement  not voluntary
 5. Merger: attempts always merge into their completed offenses; once a crime is
brought to fruition, the attempt legally disappears and the actor can no longer be
convicted for both the attempt and the completed offense
o To convict and punish the defendant for both offenses would represent a form of
double counting by the court – punishing a defendant for 2 crimes every time
ONE was committed (in theory this would happen in every case logically since
every offense begins with an attempt)
B. APPLICATION
 Specific Intent or Purpose – People v. Gentry
o Gentry convicted of attempted murder and aggravated battery – trial court
merged the two convictions and charged Gentry with 45 years of imprisonment
 o Gentry and his girlfriend got into an argument and he spilled gasoline on her
body and it ignited; he was able to smother the flames with a coat but only after
his girlfriend was severely burned
o Police officer came to the scene and saw G’s girlfriends upper body badly burned
o Girlfriend testified that G poured gasoline on her and only ignited when she went
near the stove in the kitchen and that G tried putting the fire out; also testified
that she intended to live with G again
o Several people testified stating that his girlfriend claimed the incident was not an
accident and that she was afraid of G
o Instructions as given actually did require the jury to find specific intent to kill
o The state makes no distinction between the mental state required to prove
murder and the mental state required to prove attempted murder
o The essential task before the jury was the determination of whether G
sufficiently formed the specific intent to kill in order to satisfy the elements of
attempted murder
o Defendants conviction reversed and remanded – cause for a new trial
o For attempt, the actor must have the purpose or specific intent to both engage
in the conduct and bring about that result, while crimes of recklessness assume
that the defendant did not intend to bring about a particular result
o In determining whether attempt can apply to a particular crime, you must
determine the mens rea for that crime
 If the mens rea is recklessness then attempt liability is precluded (taken
out) since it requires purpose or specific intent
 If the crime is not strict liability, you must determine whether the statute
imposes strict liability for an unintended result or strict liability for
committing some conduct regardless of result
 Distinguishing Attempts from Mere Preparation – People v. Rizzo
o Accused convicted of an attempt to commit robbery in the first degree – no
doubt that he had the intention to commit robbery if he got the chance
o Defendant with 3 others planned to rob Rao of 1200$ which he was to carry
from a bank, and were travelling in a car looking for him when they were being
watched and followed by 2 police officers
o They were looking for Rao but had not seen or discovered him up to the time
they were arrested
o An act amounts to an attempt when it is so near to the result that the danger of
success is very great
o The crime of attempt to commit robbery was committed if the defendants did an
act tending to the commission of this robbery
o Rao was not found, the defendants were still looking for him, no attempt to rob
him could be made at least until he came in sight
o Defendants were not guilty of an attempt to commit robbery in the first degree
when they had not found or reached the presence of the person they tended to
rob
 o Dangerous proximity standard focuses on how close the defendants were to
succeeding and closeness defined in causal terms – an actor might be physically
close to the scene of the completed crime but there might be important work
remaining before the crime comes to fruition
 Distinguishing Attempts from Mere Preparation – States v. Reeves
o 2 students planned on killing their homeroom teacher by placing rat poison in
her drink
o A student informed the teacher of their plan who then informed the sheriff
o Both students were found to be delinquent and charged for criminal attempt to
commit second degree murder in violation
o States was required to present legally sufficient evidence of: intent to commit a
specific crime, an overt act toward the commission of that crime and a failure to
consummate the crime
o Task is to determine whether the defendants actions in this case constitute a
substantial step toward the commission of second degree murder under the new
statute
o Under Dupuy no criminal responsibility would have attached unless the poison
has actually been placed in the teachers cup
o Once a person secretly places a toxic substance into a container from which
another person is likely to eat/drink, the damage is done – here, if it had not
been for the intervention of the teacher, she could have been rendered
powerless to protect herself from harm
o Dupuy rule must be abandoned – when an actor possesses materials to be used
in the commission of a crime, at or near the scene of the crime and where the
possession of those material can serve no lawful purpose of the actor under the
circumstances, the jury is entitled but not required to find that the actor has
taken a substantial step toward the commission of the crime
o Substantial step test: it requires substantial action but the amount of action
required depends on an evidentiary assessment of the relationship between the
defendants actions and her mental attitude – her commitment to the criminal
endeavor
 Impossibility – People v. Dlugash
o A man was found shot to death in the bedroom of his apartment – body was
riddled with bullets and autopsy revealed that victim has been shot in the face
and head and critically wounded in the chest
o Medical examiner stated that victim might have died of the chest wounds very
rapidly since in addition to the bleeding, a large bullet going through a lunch and
the heart would have other adverse medical effects
o To sustain a homicide conviction, it must be established BRD that the defendant
caused the death of another person
o The distinction between factual and legal impossibility was a nice one and the
courts tended to place a greater value on legal form than on any substantive
danger the defendants actions posed for the society
 o Under the code provision, to constitute an attempt, it is still necessary that the
result intended or desired by the actor constitute a crime
o A person is guilty of an attempt when, with intent to commit a crime, he
engaged in conduct which tends to effect the commission of such crime
 If the defendant believed the victim to be alive at the time of the
shooting, it is no defense to the charge of attempted murder that the
victim may have been dead
o There is sufficient evidence in the record which the jury could conclude that the
defendant believed the victim to be alive at the time the defendant fired shots
into his head
 Impossibility – State v. Smith
o Defendant was a jail inmate who had HIV and on several occasions threatened to
kill corrections officers by biting/spiting at them
o He bit an officers hand causing puncture wounds of the skin and jury found him
guilty of attempted murder, aggravated assault and terroristic threats
o Defendant claims that a bit cannot transmit HIV and he knew this when he bit
the officers and knew it would not kill him
o Neither of the defendants 2 claims has been established – HIV cannot possibly be
spread by a bite and whether defendant actually believed his bite could result in
death was a question of his credibility, a question the jury obviously resolved
against him
o Attempted murder verdict was supported by proof which the jury could
reasonably accept that the defendant subjectively believed that his conduct
could succeed in causing the officer’s death, regardless of whether his belief was
objectively valid – affirm conviction
o When some judges say “legal impossibility” they mean pure legal impossibility,
i.e. the situation where the defendant has an overly restrictive understanding of
the law – courts always recognize this as a defense
o Hybrid legal impossibility – includes mistakes regarding the legal status of a fact
that is necessary to establish a required element of the offense, though it
encompasses other situations as well
 Ex. if defendant takes merchandise that he believes to be stolen but is
not stolen, he should not be convicted of attempted possession of stolen
goods
 Abandonment – Ross v. Mississippi
o Victim and her daughter lived in a trailer, and while she was home alone,
defendant knocked at her door asking for directions and as the victim was
helping her, the defendant instructed her to get inside and start undressing and
testified that defendant threatened to kill her
o Victim told defendant about her daughter and defendant said he would not do
anything
o Defendant was charged for attempted rape of victim and jury found him guilty
 o Primary issue: whether Ross abandoned his attack as a result of outside
intervention
o Attempt consists of an intent to commit a particular crime, a direct ineffectual
act done toward its commission and failure to consummate its commission
o Abandonment occurs where though the verbal urging of the victim, but with no
physical resistance or external intervention, the perpetrator changes his mind
o The evidence does not sufficiently raise a fact question as to whether he
attempted rape – the evidence shows that he did not, but instead abandoned
the attempt
o Ross left because he responded sympathetically to the victims statement that
she had a daughter and he did not fail in his attack – no one prevented him from
completing it, victim successfully persuaded Ross of his own free will to abandon
his attempt
o Abandonment must be voluntary and not induced by the victims resistance or
outside intervention
C. PRACTICE AND POLICY
 Punishing attempts: criminalization of attempts is the criminalization of trying to
commit a crime – an idea already embedded in the structure of the criminal law
o Even if unsuccessful, criminal attempts are an expression of defiance of
established and legitimate rules of public conduct
o Attempts are less serious because the defendant never produced the resulting
harm
o On the other hand, there are several reasons to think that attempts should be
punished just as seriously as completed crimes
 Perpetrators who fail to complete the crime are usually fully committed
to the crimes commission
 If the crime was interrupted it was only because of the perpetrator’s
poor luck
 The inner culpability of the attempted murderer is just as severe as the
murderer because both desire the result and engage in actions to bring it
about
o Perhaps dangerousness also involves the risk that the defendant will reoffend
and commit more crimes – seems just as likely that an attempted murder will
commit another crime as it is the successful murderer will commit another
crime
 Assault and battery: at common law, assault was defined as an attempt to commit a
physical battery
o Ex. an actor who points a gun at someone and threatens to shoot that person
would be guilty of assault even if the actor never pulls the trigger

Chapter 19: Inchoate Conspiracy

A. DOCTRINE
 Conspiracy: agreement between two or more individuals to commit an unlawful act
 o Since crime is inchoate in nature, the ultimate crime to which the conspiracy is
directed need not be performed
 The elements of the offence include:
o Agreement to commit an unlawful act
o Specific intent/purpose to achieve goal/object of conspiracy
o Overt act in furtherance of the conspiracy
 1. Agreement to Commit Unlawful Act
o The unlawful agreement is in many ways the signature element of the crime of
conspiracy – once agreement is formed (and overt act is performed), the
inchoate crime of conspiracy has been committed
o The agreement itself is the criminal act of the offense
o The criminal offense does not require an explicit agreement – an implicit
agreement between 2 or more individuals even if never rendered in more
explicit terms, qualifies as conspiracy
o Government may prove the existence of the unlawful agreement through
circumstantial evidence and inferences
 2. Specific Intent/Purpose
o The mens rea requirement for the conspiracy as a substantive offence is the
specific intent that the group commit the crime
o Defendants specific intent/purpose will often be inferred based on the relevant
facts and his behavior
o More usual scenario is for the government to produce factual evidence legally
sufficient to generate an inference that the defendant intended the goal of
conspiracy – defendant need not intent to personally commit the crime
 3. Overt Act Requirement
o Jurisdictions usually have both a general conspiracy statute, as well as specific
conspiracy provisions
o Most of the general conspiracy statutes require an overt act in furtherance of
the conspiracy – requirement is meant to restrain the governments use of the
conspiracy doctrine
o Statutes with an overt act requirement are often interpreted broadly –
defendant need not commit the overt act in question and it is sufficient if one
member of the conspiracy commits the overt act
o Goal of the overt act requirement is simply to distinguish between criminal
agreements that are purely mental – existing only in the minds of the
conspirators and criminal agreements that have been actualized
 What counts as an overt act is a question of fact for the jury to decide but
can often be a minor act
 4. Renunciation
o Liability for conspiracy as an inchoate offense is not extinguished when the
defendant stops pursuing the constitutional objective – defendant must fully
renounce the conspiracy by thwarting the conspiracy under circumstances
manifesting a complete and voluntary renunciation of his criminal purpose
 5. Merger
o Unlike attempts, conspiracy does not merge with its completed offence – liability
for conspiracy does not disappear once the conspiracy is successfully completed
o Prosecutors can charge a defendant with both murder and conspiracy to commit
murder at the same time, permitting a form of double dipping
B. APPLICATION
 Agreement to Commit Unlawful Act – State v. Pacheco
o Pacheco met Dillon when P worked for Ds private investigation firm and P
bragged to D about his involvement in illegal activities
o D learned that P was a Clark county deputy sheriff and D contacted the FBI and
volunteered to inform on P
o D paid P 500$ in exchange for protection during a drug deal and P offered to kill
the drug buyer for 10,000$ and indicated that if he had to kill anyone else, it
would cost more
o P proposed he go get his gun while D located the drug buyer
o Defendant argues that he did not commit conspiracy within meaning because his
sole conspirator was an undercover police agent who never “agreed” to commit
the crime of murder in the first degree
o A conspiratorial agreement necessarily requires more than one to agree because
it is impossible to conspire with oneself
o In a unilateral conspiracy, the state not only plays an active role in creating the
offense, but also becomes the chief witness in proving the crime at trial
o Modern trend is to recognize the unilateral approach to conspiracies – majority
concludes that conspiracy necessarily requires 2 sincere partners
 Specific Intent/Purpose – United States v. Valle
o Defendant must have specific intent to achieve the goal of conspiracy and courts
usually infer the mental state from the defendant’s behavior
o Government relied on numerous internet chats in which Valle and 3 alleged co-
conspirators discuss in graphic detail kidnapping, torturing, raping, murdering
and cannibalizing women
o Primary issue is whether the evidence and the reasonable inference that may be
drawn from the evidence are such that a rational jury could find that criminal
intent had crystalized; that Valle and his alleged co-conspirators entered into a
genuine agreement to kidnap certain women and had the specific intent to
actually kidnap them
o Alleged conspiracy lasted nearly a year, all communications between Valle and
the 3 others took place over the internet – none of the conspirators ever met or
took steps to meet nor did they ever speak by telephone
o Government determined that Valle had discussed kidnapping, torturing… with 24
individuals
o Alleged conspirators discussed dates for kidnappings, no reasonable juror could
have found that Valle actually intended to kidnap a woman on those dates
 o Valle never provided his alleged co-conspirators with the last names and
addresses that would have permitted them to locate/identify these women
o Valle’s specific intent to actually kidnap a woman – the fact that no kidnappings
took place and that no real world concrete steps toward committing a
kidnapping were ever undertaken is powerful evidence that Valle and 2 other
individuals engaged in this allegedly real chats understood that no actual
kidnapping was going to take place
o The chats/emails about these interests are not sufficient to make out the
elements of conspiracy to commit kidnapping – evidence offered by the
government at trial is insufficient to demonstrate BRD that Valle entered into a
genuine agreement to kidnap a woman or intended to commit a kidnapping
 Overt Act in Furtherance of the Conspiracy – United States v. Shabani
o A conspiracy conviction is supposed to require more than evil thoughts – some
statutes require an overt act by someone within the conspiracy to show proof
that the conspiracy moved from talk to action (action doesn’t have to be
significant)
o Shabani participated in a narcotics distribution scheme and was the alleged
supplier of drugs which he arranged to be smuggled from California
o In an undercover operation, federal agents purchased cocaine from distributors
involves in the conspiracy
o General conspiracy statute contains an explicit requirement that a conspirator
do any act to effect the object of the conspiracy
o The law does not punish criminal thoughts and contends that conspiracy without
an overt act requirement violates this principle because the offense is
predominantly mental in composition
 Overt Act in Furtherance of the Conspiracy – United States v. Abu Ghayth
o AG was convicted by a jury of conspiring to kill US nationals, conspiring to
provide material support/resources knowing or intending that they would be
used in preparation for or in carrying out a conspiracy to kill US nationals
o AG was involved with al Qaeda in summer of 2001 and claims to have learned
about the attacks on the World Trade Center after they occurred from the media
while staying at a Kuwaiti acquaintance’s house
o AG, bin Laden and 2 others proceeded to make a video later published around
the globe in which AG offered justifications and praise for the 9/11 attacks
o It alleged as an overt act that AG gave a speech in which he threatened that the
storms shall not stop and advised Muslims not to board any aircraft and not to
live in high rises
 Renunciation – Commonwealth v. Nee
o Defendant and his companions informed police officers that since the previous
winter another student Kerns had developed a plot to blow up the school and
the defendant in particular described the plot in detail – none of the 3 friends
indicated that they were involved in the plot
 o Police officers arrested Kerns and obtained a warrant to search his home where
they found supplies/weapons/explosives
o In winter 2003, the defendant told Farley of a plan to shoot up the school and
asked if F was interested in joining him
o Kerns and defendant developed a list of ingredients for explosives and other
necessary supplies and list of names specific students who they planned to kill
o Kerns and defendant asked another student to join the planned attack
o Renunciation defense applies in circumstances where the defendant manifests a
complete and voluntary renunciation of HIS criminal purpose
o Renunciation posits prior participation
o For the defendant to be entitled to the affirmative defense of renunciation, he
must have first acknowledge that he conspired to commit a crime – the
defendant didn’t do this
C. PRACTICE AND POLICY
 Common law origins: inchoate conspiracy is a common law doctrine with an ancient
pedigree
o Attempt requires that the criminal endeavor be much more developed before
liability attaches
 Conspiracy and international law: because conspiracy is not recognized in all judicial
systems, it is generally not considered part of international law
o Conspiracy doctrine proved controversial when after 9/11, the US government
used a military commission to prosecute Osama bin Laden’s bodyguard for
conspiracy to commit war crimes
o The federal government often uses conspiracy statutes to prosecute would-be-
terrorists in federal district courts
 Distinguishing inchoate conspiracy from attempt: a conviction for attempt requires a
more substantial actus reus requirement – substantial step or whatever act is required
by a competing standard
o Inchoate conspiracy requires a much smaller actus reus requirement – a single
overt act performed in furtherance of the conspiracy is enough to generate a
conspiracy conviction even if that act is not substantial enough to meet the more
demanding standard for attempts
o Conspiracy requires multiple conspirators, either real/imagined depending on
whether the jurisdiction recognizes unilateral conspiracies or not

LECTURE

Attempt
 Inchoate liability generally and attempts
o Someone has tried to perpetrate a crime but might not have finished the crime
or someone might have begun the planning for crime but not finished the crime
o Special policy issues arise when talking about punishing someone who hasn’t
completed the criminal activity
  Are we enforcing the criminal law too early? If we are going to hold them
accountable, at what point do we do that?
o Problem because: we have to be concerned about punishing conduct that might
actually be innocent even if it is merely suspicious
 Merely suspicious activity is usually not even grounds for conducting an
investigation
 Attempt law provides an opportunity for early enforcement, to prevent real harm from
resulting but also must strike this balance: before completion but not too soon
 Attempt: a person with the intent to commit an offense performs an act beyond mere
preparation toward the commission of the offense
o Not just any act will do, it must be beyond mere preparation and must be an ACT
(some action toward commission of offense which is more than preparatory act)
o if target crime is felony, then attempt to commit a crime is a felony
 Specific intent crime: criminal intent which involves a specific intent to commit acts that
constitute the crime and the act beyond mere preparation must be done with specific
intent done to complete the offense
 Ex. D and V go on hunting trip and V is resting in his tent. D is outside of his tent and
fires a rifle into Vs tent and wounds but does not kill V. Is D guilty of attempted murder
of V?  Maybe
o If D intentionally pulled the trigger but pulled it because he was shooting at a
deer and did not specifically intend to kill V, then he is not guilty of attempted
murder
o Attempted murder is always specific intent to kill
 MPC doesn’t recognize difference between specific and general intent crimes
o Under MPC, attempt requires purpose

Attempt Mens Rea

 Attempts are specific intent crimes
 Gentry Case:
o G spilled gasoline on his girlfriend
o G charged with attempted murder
o Court says there is no attempted murder because there is no evidence that he
specifically intended to kill victim
o If he attempted to help put out the fire, then he probably didn’t intend to kill her
o Relationship between G and his girlfriend – prosecution tried to impeach her
testimony
o Court: only specific intent to kill satisfies the requirement of attempted murder;
must prove that Gentry had specific intent to kill and there was no evidence of
that
 Reversed and remanded
o Mere knowledge would not be sufficient to prove intent under these
circumstances
  Defendant must have the specific intent to complete a crime, as well as the intent to do
the underlying act beyond preparation (dual intents)
 Problems:
o Crimes of recklessness – can you specifically intend to be reckless?
o Felony murder – can you specifically intend felony murder?
o Strict liability crimes – yes you can intend to do the act, so the mens rea must
apply only to conduct elements of the offense and not the result

Attempt Actus Reus

 Attempts require an act beyond mere preparation toward commission of the offense
 Problem: where is the line? How do we know when the defendant has crossed the
preparation-perpetration line?
o How much has been done to complete the crime?
o How much remains to be done to complete the crime?
 Hypothetical:
o Raising of the handgun? – shows that she is prepared to carry out the crime and
intending to shoot the victim  is this too early or too late?
o When she loads the gun and gets in the car?
o State wants to intervene as early as possible – capture person before any harm is
done so we shouldn’t have to wait for perpetrator to pull the trigger

Tests for Perpetration (Beyond Perpetration)

 Slight acts: allows liability of the design of the person to commit the crime is clearly
shown in slight acts in furtherance of that design
o Not a particularly popular test
o Allows arrest for person at very early stage, possibly even at preparatory stage
o Leads to results that are undesirable – enforcement of criminal law too early
 Physical proximity test: defendant must be close in time and space to the final act that
completes the crime
o Literal, in geographic sense
 Dangerous proximity test: whether defendant was dangerously close to consummating
the offenses – proximity here being a causal concept (not geographic)
o More to do with causally as a matter of causation and not as a matter of time
and space
o Nearness of danger and degree of apprehension/harm
 Unequivocally test: whether defendants conduct unequivocally demonstrates the
defendants intent to commit the crime – an actus reus requirement that loops back and
refers to the mental element
o Look at the act, and ask whether act unequivocally represents defendants intent
to carry out offense
 Probable desistance test: requires that the defendants conduct would result in the
completed crime “in the ordinary and natural course of events” if the actor had not
been interrupted by a third party (such as the police)
 o Based on everything we know about the facts, does it appear that the acts have
passed a point at which now, in the ordinary and natural course of events, the
crime would be completed as long as it is not interrupted
 MPC substantial step test: requires that the defendant engage in a substantial step in a
course of conduct planned to culminate in his commission of the crime
o Must be corroborative of the acts criminal purpose
 Rizzo Case:
o They did not commit an attempted robbery – applying dangerous proximity test
o New York robbery law – unlawful taking of personal property of another against
his will by means of force of violence…
 To have a robbery, you have to take the property of another unlawfully
through violence or fear
 How can you come dangerously close to committing a robbery if you
aren’t even in the presence of the person you are going to rob?
o Defendants weren’t guilty of attempted robbery because they didn’t find or
reach the person they intended to rob
o There is no attempt here
o Purely actus reus problem here – no doubt that they intended to rob this man;
not for failure of mens rea as much as it is a failure of actus reus
 Reeves Case:
o 2 girls planned to kill their teacher by rat poisoning
o Delinquency proceeding for an attempt to commit second-degree murder
o MPC approach (substantial step test) – legislature in Tennessee; possession of
materials designed for unlawful use, possession of material to employ
commission of crime near the place (laundry list)
 These statutory provisions in substantial step are satisfied
o Why would they have the rat poison and bring it into school? – reject the rule
that requires something like actually placing the poison in the coffee cup
 Results will be different in each case depending on what test you use

Defense: Impossibility
 Common law distinguished:
o Factual impossibility – actor intends to complete the crime but is prevented from
doing so by forced that made it impossible; this is NOT a defense
 Factually or physically prevented from completing the crime
 Ex. defendant intends to pick someone’s pocket (traditional larceny).
Defendant comes up behind victim and reaches into the purse trying to
take wallet but it is empty – impossible to complete the offense
o Legal impossibility – actor intends to complete an act that he believes to be
criminal, but it is not (either because it was a crime but the criminal law has been
repealed, or the actor was simply mistaken about whether the act was a crime);
this IS a defense
  Ex. someone intends to forge a prescription for controlled substance
because they believe that under the law, a prescription is required for
that substance but the law doesn’t actually require a prescription to it or
maybe it did at one time and no longer does – person would not be guilty
of attempting forgery  pure legal impossibility
 What the person is intending to do, is simply not a crime, even though
they think it is
o Hybrid legal impossibility
 Ex. receiving stolen property; defendant receives property he believes is
stolen but it never was
 Person would not be guilty
 Modern approach abandons the common law distinction. Modern approach asks
whether, if the facts were as the actor believed them to be, her act would be criminal. If
so, she is guilty. If not, then no guilt (essentially pure, legal impossibility) – MPC follows
this approach
o The modern law is only pure legal impossibility as a defense
o If underlying act wasn’t a crime, that is pure legal impossibility
 Dlugash case:
o 2 people shot the victim – who caused the victims death?
o State failed to show BRD, that victim was alive when D shot him – D cannot be
guilty of murder if you shoot a dead person
o Under New York’s approach for impossibility – there was sufficient evidence that
D thought victim was alive when he shot him; therefore, if the facts were as D
believed them to be, he would have been killing the victim and not just shooting
a dead body
 Smith case:
o Defendant knew he had HIV, and threatened to kill officers by biting/spiting on
them, and did bite an officer
o He claimed impossibility – bite couldn’t transmit HIV

Defense: Abandonment (Renunciation)

 Widely recognized today, abandonment as an offense to an attempt – MPC as well as
other jurisdictions
o At common law, it was probably not a defense but in main jurisdictions, it is a
defense
 To claim abandonment, you must have an attempt first – line was crossed between
preparation and perpetration
o If it was, and you are an in abandonment jurisdiction, then you can consider
abandonment
o Merely ceasing criminal activity, is NOT abandonment
 If a person takes a non-preparatory step toward completion, with the required mens
rea, should he be able to change his mind and avoid liability for the attempt?
 No universal agreement on this, but some states allow a defense of abandonment
  Desisting because one fears apprehension is NOT abandonment. Abandonment requires
a change of heart about commission of the offence. This includes desisting at the
victim’s urging. But desisting because of fear that an alarm will be raised, or a third-
party will intervene, is not abandonment
 Should we encourage enforcement of an abandonment defense? Does it incentivize
desistence and thus better protect victims? (MPC allows the defense)
 Ross case:
o Was this an attempted rape? Or did he abandon? – Mississippi recognized
abandonment
o He desists in the activity because she mentioned her daughter and responded
sympathetically – he did not fail in his attack, no one prevented him from
completing it; the victim persuaded him to stop
o He was entitled to defense of abandonment

Conspiracy
 Can charge conspiracy as a distinctive defense – can be guilty by itself
 Can charge with conspiracy with other substantive crimes
o Conspiracy a mode of liability – holding people responsible for actions of others

The Elements
 A criminal conspiracy is an agreement between two or more people to commit an
unlawful act
o Seeks to punish those who form agreements to commit a crime
o Law uses agreement as a step beyond simply thinking about a crime
o Under US criminal law, we don’t punish people just for thinking about
committing a crime
o Formalizing your thought into an agreement
 Requires specific intent to achieve the conspiratorial goal
 SOMETIMES requires an overt act in furtherance of the conspiracy (not required at
common law, but often required today)
o In modern criminal law, most jurisdictions will require an overt act
o Common law did not require this – the agreement was enough
o Overt act is necessary because of the concern about punishing people just for
their thought – physical demonstration of the seriousness of carrying out
criminal scheme/agreement
o In a jurisdiction that requires an overt act, it doesn’t have to be much – it can be
almost anything
o Does not have to be anything beyond preparatory can be trivial, or legal or the
smallest thing
 NO merger – one CAN be convicted of both the completed crime and the conspiracy to
commit the crime (contrast with attempt)
o In attempt, there is merger – cannot be convicted of both the attempt to commit
crime and the completed crime
  If you kill someone, you can be convicted of murder but not attempted
murder
o With conspiracy, there is no merger – can be convicted of completed offense and
conspiracy to commit offence
 If you are convicted of murder, you can be convicted of murder AND
conspiracy to commit murder
 Conspiracy is favored by prosecutors – even more powerful when used as mode of
liability

The Agreement
 Need not be formalized in writing; a tacit agreement is sufficient and may be proven
circumstantially
o Can be express or tacit or be proved by circumstantial evidence – role and
behavior of parties to determine whether agreement was formed
 Common law required a BILATERAL agreement – two or more people agree to the
unlawful act and BOTH are committed to achieving it
o What if one person feigns agreement? Under the common law approach
(majority approach), there is no conspiracy. Unless…
o What if the other person is afraid of the other guy?
o Bilateral nature of element would fail under common law
 Some states follow UNILATERAL conspiracy – two or more people are needed to form an
agreement but only one of them needs to be sincere about it. This allows for
conspiracies when police go undercover
o Takes two people to agree but only one has to be sincere about carrying it out –
you can prosecute a defendant who conspires with i.e. an undercover police
officer who has no desire to carry out the crime
o This theory has the virtue of accountability but it is not universally used
 Pacheco case:
o When D learned that P was a deputy, he contacted the FBI and they began
investigating
o Washington has a bilateral conspiracy – statute requires an agreement and
person cannot agree with himself
o In bilateral jurisdiction, no one conspiracy here
o If we were in a unilateral jurisdiction, he is clearly guilty

The Mens Rea

 Conspiracy is also a specific intent crime, and requires specific intent, or purpose to
achieve the criminal goal
o Purpose of promoting or facilitating the targeted offense
o Forming of agreement will usually be enough to show intent
 Mere fantasizing about committing the crime will not be sufficient (see Valle)
o Valle case:
 Cannibal cop accused of conspiracy to commit kidnapping
  Government conceded that most of his discourse was just role playing
and simply fantasy stuff – sickening but not illegal
 BUT, government also said that there was a specific incident in the
chatroom in which there was an identifiable conspiracy to kidnapping
(alleged kidnapping spanned 3 continents)
 Identify specific targets to kidnap and identified specific dates
 Problem is no one was ever kidnapping, and not only that, there was
never any follow-up between these 3 online after the dates had passed –
remarkable fact
 If they were sincere about carrying out conspiracy and they intended to
do whatever it is they said they would, why is there no discussion of it
after date had passed? No one checked in or raised the issue of whether
or not the kidnapping took place
 Only plausible explanation for lack of inquiry is that Valle and the others
understood that no kidnapping would ever take place – they never
intended to carry out the crime
 Although he was convicted, but district court found in Valle’s favor – all
just fantasy
 What about a person who is a purveyor of goods/services, who provides those goods or
services to someone who then uses them to carry out a crime? Conspiracy?
o Suppose X has a telephone answering service that X knows is used by a
prostitution ring. X says he is aware that his service is being used to further
prostitution, but doesn’t care. X just wants the money and doesn’t what his
service is used for
 No, this person is not guilty of conspiracy
o Suppose a gun dealer sells a gun to D, who then uses the gun to commit a
murder. Conspiracy?
 This is not a conspiracy
 Unless you intend for your selling of goods or services to result in crime,
you are not a part of conspiracy
 Mere knowledge is NOT specific intent. Still, many courts say knowledge can be equated
with specific intent in limited circumstances, such as if the person has a stake in the
success of the criminal venture or profits from the criminal conduct
o If someone intends to commit a crime with the thing I provide them with, and I
sell them to it anyway – that might be an argument; knowledge should equate
with intent
o Merely being a seller of goods/services doesn’t make you a co-conspirator

The Overt Act

 At common law, no overt act was required. Today, most jurisdictions require it
o Note: many jurisdictions have a general conspiracy statute and also specific
conspiracy provisions attached to specific crimes; sometimes, one may require
an overt act when the other does not
  You have to do a statutory interpretation analysis (like Shabani case)
 Virtually, any act can be an overt act. Even a merely preparatory act will suffice
o Abu Ghayth case – spoke on behalf of Al Qaeda
 Speech can be an overt act
 Something entirely legal can still be an overt act
o Ex. bank robbery wearing Halloween masks – perfectly legal to buy Halloween
masks but that is an overt act in conspiracy
 The over act can be committed by any member of the conspiracy

The Defenses
 In addition to failures of proof, conspiracy defendants may also claim renunciation in
some jurisdictions (but not everyone recognizes it)
o Kind of like an abandonment
o At common law, you could not raise this because once you form the agreement,
that is it – harm done by you forming the agreement
o To renounce, it has to be something more than not going through with it
 Defendant must thwart (stop/prevent) the conspiracy, not merely cease participation
o If you take reasonable steps to thwart the conspiracy, that might be enough but
it also has to be a sincere change of heart
o Just because you are afraid of getting caught, that it typically not enough – that
is why you are required to do something
o Nee case
 Plot to blow up the school and commit a mass murder
 Problem here with his claim of renunciation was that he never implicated
himself in the conspiracy – inconsistent with the idea of renouncing
something
 Cannot renounce a conspiracy you were never part of, he did not admit
he was a part of the conspiracy
 To voluntarily renounce conspiracy, you have to acknowledge you were a
part of it and Nee did not do this – he said it was everyone but him; his
renunciation was never complete
 Some jurisdictions allow renunciation if the person takes reasonable steps to thwart
 Conspiracy law is directed at group criminality because combinations of individuals is
more dangerous than individuals acting alone