1. Anticipatory Offenses and Parties to Crimes
Chapter 3

2. Inchoate Crimes
Possible that individuals may engage in behaviors dangerous to society that may imply an inclination to commit a crime
Inchoate crimes
Crimes that are anticipatory, imperfect, incipient, or uncompleted
Important because they are threatening and create fear in the targeted victims
May also lead to other crimes

3. Solicitation
The asking, inciting, ordering, urgently requesting, or enticing of another person to commit a crime
Target crime need not be committed
Elements
An act
Commanding, encouraging, or demanding that another person engage in conduct that constitutes a crime
An intent
Have purpose of promoting or facilitating that person to commit a crime
Incitement may be directed at a group or crowd as well

4. Solicitation
Some statutes require solicited crime to be a serious one whereas others include any crime
In some jurisdictions, communication of criminal solicitation may qualify
Even if not accomplished
Some jurisdictions categorize uncommunicated solicitation as an attempt crime

5. Solicitation Penalties vary by statute and jurisdiction
It is not sufficient to joke to another about committing a crime
Even if person commits suggested crime
Communication must be made with intent
Some statutes permit the defense of renunciation
Others require for defense to be acceptable, solicitor of crime must persuade solicitee not to commit crime, or must in some way prevent crime from happening

6. Attempt Statutes held by most jurisdictions
Some refer to any crime
Others limit to serious felony or any one of an enumerated list of serious crimes
Act involving two basic elements
Specific intent to commit that crime
Purposefully
Excludes crimes that result of a general intent, negligence, or recklessness
Can hold some problems

7. Attempt
Step toward commission of a crime (act)
Defendant moved beyond preparation towards perpetration of crime
Difference between two is of critical legal significance
One does not have to be active participant to constitute perpetration
Can aid or abet
See Focus 3.3
Offender’s act does not have to be the last act in chain of causation to constitute an attempt

8. Attempt: Two Defenses Abandonment Impossibility
Must be evidence it is voluntary and complete
Most courts do not recognize this defense when it is the result of getting caught
If allowed, is interpreted strictly
Impossibility
Factual impossibility
Circumstances unknown to actor that prevented commission of attempt

9. Attempt: Two Defenses Legal impossibility
No crime would have been committed even if intentions had been fully performed or set in motion
Most courts hold defendant may be charged with attempt when physical or factual impossibility exists
Not when legal impossibility exists

10. Conspiracy
Agreeing with another to join together for the purpose of committing an unlawful act or agreeing to use unlawful means to commit an act that would otherwise be lawful
Unlawful act does not have to be committed
Crime involves the agreement
Permits criminal prosecution for behavior of others as well as one’s own acts

11. Conspiracy
In most jurisdictions, defendant can be convicted of conspiracy and of crime that was its object
Some do not permit two convictions
Agreement may be sufficient to constitute act requirement

12. Conspiracy: Problem of Definition
Not recognized crime in early common law
Defined narrowly when it emerged
Expanded over years
Rex v. Jones (1832) definition
English case
Used term unlawful
Unlawful has been interpreted more broadly than criminal
State v. Burnham (N.H, 1844)

13. Conspiracy: Problem of Definition
Some jurisdictions retain common law definition even if codified into law
Some statutes specify it must be to commit a crime
Others specify specific types of crimes
In general statutes are broad
Many courts have upheld them
Musser v. Utah (1948)
Some statutes divide it into degrees

14. Conspiracy: Two Elements: 1. Criminal Act
Can be the agreement
Essence of conspiracy
Does not have to be written
Can be inferred from facts and circumstances of case
Proving existence of agreement may be difficult
Objective standard method
Subjective test
United States v. Brown (2d Cir. 1985)
Careful analysis of alleged agreement is important

15. Conspiracy: Two Elements: 1. Criminal Act
Problem of Multiple Agreements
Another issue is whether more than one agreement was in effect
Can lead to acquittal if more than one existed and evidence exist of them, but only one can be proven by prosecutor
Number of agreements may also be important in imposition of punishment

16. Conspiracy: Two Elements: 1. Criminal Act
The Requirement of an Act Plus an Agreement
If required, there must be an overt act
Normally requirement is not as stringent as that required for an attempt
Often intended to give any of the actors a chance to abandon participation and avoid prosecution
Some states specify requirement only for some conspiracy crimes
Not always necessary for all co-conspirators engage in overt act
United States v. Robinson (7th Cir. 1974)

17. Conspiracy: Two Elements: 2. Criminal Intent
In prosecuting conspiracy, must be proved they intended to accomplish unlawful objective, which was object of conspiracy
Elements of objective must be met
Problem exists in what to do with alleged conspirators who merely provide goods or services used by others for unlawful purposes
Requires intent, not just knowledge

18. Conspiracy: Two Elements: 2. Criminal Intent
In some jurisdictions, parties must have had a corrupt motive
People v. Powell (1875)
Not all courts agree
Some take position that if conspiracy is to commit act not generally agreed to be a crime but has been defined as such, corrupt motive doctrine applies
Based on assumption person should be aware there are laws against more serious acts, but not that lesser acts are crimes

19. Conspiracy: Limitations on Parties: 1. Wharton Rule
Named after Francis Wharton
Specifies when individuals engage in crimes that by definition require more than one person, they may not be prosecuted for conspiracy
Third party must be involved for conspiracy to exist
Some jurisdictions have rejected this rule

20. Conspiracy: Limitations on Parties: 2. Husband-and-Wife Rule
Under common law were one person
Could not conspire to commit a crime
Position accepted in United States in earlier days
Based primarily on assumption husband “owned” wife
Laws have changed today
Wife may legally act independently of husband

21. Conspiracy: Limitations on Parties: 3. Two-or-More Rule
For conspiracy to exist, two or more persons must be involved
Some courts have taken position if one is acquitted, the other cannot be convicted
Other courts look to reason they were not convicted
Possible second one can be convicted
Similar issues arise when person charged with conspiracy allegedly conspired with another who had no intention of carrying out act
Modern cases have held this situation does not preclude conviction against party with intent

22. Conspiracy: Limitations on Parties: 4. Corporation Rule
Corporations may commit conspiracy with other corporations or with natural person
There are problems with two-or-more rule
Problem arises when corporation and one of its officers are charged
Very early cases established this does not constitute conspiracy
Union Pacific Coal Co. v. United States (8th Cir. 1909)
Requirement also arises when two or more agents of same corporation are involved
Courts have differed on this situation

23. Conspiracy: Defenses
Most courts hold impossibility is not a defense to conspiracy
Some jurisdictions hold legal but not factual impossibility is a defense
Some jurisdictions permit withdrawal or renunciation as defense
Might be difficult to prove
Jurisdictions differ on statutory requirements to prove and courts vary on interpretations of statutes

24. Conspiracy: Other Issues
Important issue that arises is extent to which actor is responsible for crimes of his or her co-conspirators
Pinkerton v. United States (1946)
Pinkerton rule criticized as one that could result in gross distortions
Some courts dodge problem by limiting criminal culpability for crimes of co-conspirators to reasonably foreseeable acts

25. Conspiracy: Other Issues
Another issue concerns duration of conspiracy
Culpability for crimes of co-conspirators lasts only as long as conspiracy
Culpability continues until agreement is abandoned or succeeds
Both duration and extent of culpability for crimes of co-conspirators are affected by whether defendant withdraws successfully or abandons conspiracy

26. Conspiracy: Other Issues
U.S. Supreme Court considered issue of whether conspiracy ends when law enforcement intervenes
Conspiracy cases may be (and usually are) extremely complicated
Frequently, conspiracy charges are combined with charges for substantive crimes
May be multiple defendants
Numerous substantive crimes may be alleged
Cases can take weeks, even months
Can result in enormous expenses to government and defendants

27. Parties to Crimes
Law has long recognized criminal culpability for people other than those who commit criminal acts
Complicity
Association with a wrongful act
Accomplice
Person who shares in the guilt, even though they did not engage in the crime
Various terms are used to describe type and degree of accomplice involvement

28. Parties to Crimes Under common law
Principal
Person who committed the crime
Accessory
Person who assists in crime or encourages another to commit a crime
Most modern statutes do not make this distinction
Both are treated as principles
Accessories may be convicted even if principal is not
Some jurisdictions distinguish between types of principals and types of accessories

29. Parties to Crimes: Principals
Principal in the first degree
One who perpetrates crime either through his or her own action or by use of inanimate objects or innocent people
Principal in the second degree
One who incites or abets the commission of a crime and is present actually or constructively
Constructive presence
When without being present, he or she assists principal in first degree at moment crime is being committed

30. Parties to Crimes: Accessories
Accessory before the fact
One who incites or abets but is not present actually or constructively when crime is committed
Accessory after the fact
One who, knowing felony has been committed, receives, relieves, comforts, or assists perpetrator of criminal act for purpose of hindering apprehension and conviction of that person

31. Parties to Crimes
Most modern statutes do not make distinction
Accessories may be convicted even if principal has not been convicted
Some exceptions apply
Many current statutes simply specify accomplice is accountable legally for conduct of another
Do not use categories used historically

32. Parties to Crimes: Three Elements of Accomplice Liability
Whether it is necessary to find principal guilty before convicting accomplice
The act
The mental state
Often fine line is drawn between doing and not doing enough to constitute act required for accomplice liability
Each case must be decided on its unique facts

33. Parties to Crimes: Three Elements of Accomplice Liability
Jurisdictions differ regarding intent requirement of complicity
Generally, alleged accomplices required to have intent required for offenses for which they are alleged to be accomplices
Few cases have been decided on this issue
Two leading ones disagree
Backun v. United States (4th Cir. 1940)
United States v. Peoni (2d Cir. 1938)

34. Parties to Crimes: Three Elements of Accomplice Liability
Several ways to solve conflict between two positions have been suggested
Accomplice liability may be limited to instances in which there exists purpose of promoting or facilitating commission of an offense
Some courts have held it is sufficient that accomplices know their acts will assist in commission of crimes
Do not necessarily desire that result
Some jurisdictions permit finding accomplices have requisite criminal intent if they act recklessly, knowing behavior will facilitate commission of a crime

35. Parties to Crimes: Three Elements of Accomplice Liability
Some jurisdictions have specified other conditions that must be considered
One other approach to intent issue is to enact statute for criminal facilitation
Facilitation
To make it easier for another person to engage in criminal acts
Penalties for complicity may be assessed in terms of seriousness of target crime

36. Parties to Crimes: Other Issues
Whether the Wharton rule applies
In most cases of accomplice liability individual not held criminally culpable as accomplice when he or she assists principal to commit crime that by definition requires two people
Defenses
Abandonment generally recognized
Defendant must show complicity was abandoned in timely manner
The scope of the accomplice liability
Traditionally accomplice held criminally responsible for all crimes that might reasonably result in complicity
Even though principals crimes go beyond those crimes contemplated by accomplice

37. Parties to Crimes: Prosecuting Anticipatory Offenses and Parties to Crime
Crimes also prosecuted under federal Racketeer Influenced and Corrupt Organizations Act (RICO)
Part of Organized Crime Control Act of 1970
Designed primarily to prosecute organized crime
Operates on a pattern of offenses
Most generally racketeering
Allows enhanced penalties

38. Parties to Crimes: Prosecuting Anticipatory Offenses and Parties to Crime
Forfeiture
Government may order personal or real property acquired from money derived through RICO acts be forfeited to government
Differs from other statutes in that penalties may be cumulative
Penalties for underlying crime as well as RICO violation
Has been used to prosecute other crimes