1. Attempt and Conspiracy
Class #7

2. Actus reus of criminal attempts
Last act test: a criminal attempt only occurred when the person performed all of the acts that she believed were necessary to commit the target offense.
Physical proximity test: While an actor’s conduct need not reach the last act, it must be « proximate » to the completed crime, in that « it must approach sufficiently near to it to stand either as the first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made. »

3. Examples
D, weapon in hand, has her victim in view and can immediately proceed to rob her, absent external factors, such as the intervention of the police.
Two men, intending to trick the victim out of his money, convince him to go to the bank and withdraw some cash, but the culprits are arrested before the victim withdraws the cash and before they can make overtures to secure the money for him.

4. Actus reus of criminal attempt
People v. Rizzo
Dangerous proximity test: A person is guilty of an attempt when her conduct is in « dangerous proximity to success » or when an act is « so near to the result that the danger of success is very great »
Three factors:
The nearness of the danger
The greatness of the harm
The degree of apprehension felt

5. Actus reus for criminal attempt
Indispensable element test: An actor who does not yet possess a necessary instrumentality for the crime has not yet crossed the line from preparation to perpetration.
« Probable desistence test »: A court will find an attempt when, in the ordinary course of events, without interruption from an external source, the actor reached a pont where it was unlikely that he would have voluntarily desisted from his efforts to commit the crime.
The jury tries to identify the « point of no return » of an ordinary person in the actor’s shoes

6. Example
A woman altered a prescription form for Tylenol 3 (containing codeine) so that she could obtain “11” refills rather than the “1” specified by the doctor, and who brought it to a pharmacy to fill the prescription for the first time
=> Not guilty of attempted fraudulent acquisition of a controlled substance

7. Actus reus for criminal attempt
Unequivocality test: An attempt occurs when a person’s conduct, standing alone, unambiguously manifests her criminal intent.
This test has been attacked as impractical

8. Impossibility as a defense
People v. Thousand
At common law, legal impossibility is a defense but factual impossibility is not.
Factual impossibility: situation where a person’s intended end constitutes a crime, but she fails to consummate the offense because of an attendant circumstance unknown to her or beyond her control.
Pure legal impossibility: when the law does not proscribe the goal that the defendant sought to achieve
Legal hybrid impossibility: the actor’s goal is illegal, but the commission of the offense is impossible due to a factual mistake regarding the legal status of some attendant circumstance that constitutes an element of the charged offense
Most States have abolished the defense of hybrid legal impossibility: in most jurisdictions, there is no need to distinguish between hybrid legal impossibility and factual impossibility anymore.

9. Abandonment as a defense
M, with the intention of raping V, grabbed V from a bus stop, took her at knifepoint to his home, pushed her onto a couch, and then began to fondle V. In an effort to prevent her rape, V begged M to let her go, explaining that she was trying to finish her education and that she was on her way to school to take two examinations. After V promised not to report him if he let her go, M apologized, took her to the bathroom so that she could fix her hair, and then walked her back to the bus stop.
Is M entitled to defend his actions on the ground that he abandoned rape before consummation?

10. Abandonment as a defense
Many courts today continue to decline to recognize the defense.
It applies only if the defendant voluntarily and completely renounces her criminal purpose
A person may not claim abandonment as a defense, even if the actor’s desistance is motivated by genuine remorse and is complete, once she has performed the last act necessary to commit the offense, or has already caused serious harm to the victim.

11. Attempt under the MPC Section 5.01, subsection 1:
A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:
(a) purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be; or
(b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or
(c) purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

12. Mens rea - MPC
A person is not guilty of a criminal attempt unless it was her purpose, i.e. her conscious objective, to engage in the conduct or to cause the result that would otherwise constitute the substantive offense.
Two exceptions:
Subsection 1(b) expressly and subsection 1(c) implicitly provide that a person is guilty of an attempt to cause a criminal result if she believes that the result will occur, even if it was not her conscious object to cause it
For attendant circumstances elements, it is sufficient that the actor possessed the degree of culpability required to commit the target offense.

13. Actus reus - MPC
In incomplete attempt cases, subsection (1)(c) provides that, to be guilty of an offense, an actor must have done or omitted to do something that constitutes a « substantial step in a course of conduct planned to culminate in his commission of the crime »

14. MPC defenses - Impossibility
Abrogation of the hybrid legal impossibility defense
Although the Code does not expressly so provides, the American Law Institute did not intend to abolish the defense of pure legal impossibility.
Example:
D1 receives unstolen property, believing that it was stolen, and is prosecuted for attempting to receive stolen property

15. MPC defenses - Abandonment
The Code recognizes an affirmative defense of “renunciation of criminal purpose” in incomplete attempts and completed attempts of result crimes if (1) she abandons her effort to commit the crime or prevents it from being committed and (2) her conduct manifests a complete and voluntary renunciation of her criminal purpose.
Renunciation is not complete if it is wholly or partially motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim.
Reunciation is not voluntary if it is partially or wholly motivated by « circumstances, not present or apparent at the inception of the actor’s course of conduct, that increase the probability of detection or apprehension or that makes more difficult the accomplisment of the criminal purpose. »

16. Conspiracy
A common law conspiracy is an agreement, express or implied, between two or more persons to commit a criminal act or series of criminal act, or to accomplish a legal act by unlawful means.
MPC, section 5.01, subsection 1:
A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:
(a) agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime, or
(b) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime

17. Punishing conspiracies: why and how?
Preventive law enforcement
Special dangers of group criminality
How much?
Common law: most States punish conspiracies to commit felonies as felonies and conspiracies to commit misdemeanors as misdemeanors
MPC: grades a conspiracy to commit any crime other than a felony of the first degree at the same level as the object of the fleony
Punishment when the target offense is committed:
At common law, the offense of conspiracy does not merge into the attempted offense that was the object of the conspiracy
Under the MPC, a person may not be convicted or punished for both the conspiracy and the object of the conspiracy or its attempt, unless the prosecution proves that the conspirational agreement involved the commission of additional offenses not yet committed or attempted
Pinkerton v. United States

18. Examples
D1 and D2 conspire to rob V. They later attempt to commit or successfully consummate the robbery.
Common law? They may be convicted for both the conspiracy and the attempt.
MPC? They may be convicted for either the conspiracy or the attempt, but not for both.
D1 and D2 conspire to rob Bank V1, V2 and V3. They are arrested after robbing Bank V1.
MPC? They may be convicted for either conspiracy or attempt to rob Bank V1, and for conspiracy to rob Banks V2 and V3.

19. Conspiracy: the agreement
The gist of conspiracy is the agreement to commit an unlawful act or series of such acts.
Can be express or implied.
Commonwealth v. Azim & Commonwealth v. Cook
Agreement ≠ a group that agrees
A common law conspiracy is complete upon formation of the unlawful agreement. No act in furtherance of the conspiracy need be proved.
Nonetheless, many statutes diverge from the common law and require an allegation in the indictment and proof at trial of the commission of an overt act in furtherance of the conspiracy.

20. Conspiracy: MPC
Four types of agreement fall within the MPC definition of conspiracy.
A person is guilty of conspiracy if she agrees to:
Commit an offense
Attempt to commit an offense
Solicit another to commit an offense
Aid another person in the planning or commission of the offense
Note that a person may not be convicted of conspiracy to commit misdemeanour or a felony in the third degree unless she or a fellow conspirator performed an overt act in furtherance of the conspiracy.
With felonies of the first and second degree, however, no overt act is required.

21. Conspiracy: Mens Rea
Common law conspiracy is a specific-intent offense
A criminal conspiracy does not occur unless two or more persons: (1) intend to agree and (2) intend that the object of their agreement be achieved

22. Examples O, an undercover police officer, agrees with D to murder V.
Can O be convicted of conspiracy to commit murder?
D1 and D2 agree to set fire to an occupied structure in order to claim the insurance proceeds. The resulting fire kills occupants.
Can D1 and D2 be convicted of conspiracy to commit murder? Can they be convicted of murder?

23. Mens rea – Common law
People v. Lauria: a person or business furnishes goods or services to another person or group knowing that the goods or services will be used for illegal purposes
Purpose or knowledge required?
D1 and D2, drug dealers, agreed to attack V, a federal officer disguised as a drug customer. Are they guilty of conspiracy to assault a federal officer in the performance of his official duties?
The mens rea required for conviction of conspiracy should be the same as that whihc is required for conviction of the substantive offense itself

24. Mens rea - MPC
A person is not guilty of conspiracy under the MPC unless the conspiratorial agreement was made « with the purpose of promoting or facilitating the commission of the substantive offense. »
This means that a person is not guilty of conspiracy unless the object of the agreement was to bring about the prohibited result or to cause the prohibited conduct to occur, even if such purpose is not an element of the target offense.

25. Plurality requirement
People v. Foster
A prosecution of a common law conspiracy fails in the absence of proof that at least two persons possessed the requisite mens rea of a conspiracy.
The MPC favors a unilateral approach to conspiracy liabiility
The Code focuses the inquiry on the culpabilitty of the actor whose liability is in issue, rather than on that of the group of which she is alleged to be a part.

26. Example O, an undercover police officer, agrees with D to murder V.
Can O be convicted of conspiracy to commit murder?

27. Objectives of a conspiracy
that D1 and D2 rob V1 on Day 1, rob V2 on Day 2, and rob and rape V3 on Day 3. Assuming that these crimes were committed as the result of a conspiratorial relationship between D1 and D2, a critical question remains: how many conspiracies were there?
Common law analysis: the issue is whether a single agreement or many distinct ones were formed.
MPC: A person with multiple criminal objectives is guilty of only one conspiracy if the multiple objectives are: (1) part of the same agreement or (2) part of a continuous conspiratorial relationship.

28. Defenses Impossibility
Neither factual impossibility nor legal impossibility is a defense to a criminal conspiracy.
The MPC does not recognize a defense of impossibility in conspiracy cases.
If D1 and D2 agree to rob a bank that they incorrectly believe is federally insured, they may be convicted of conspiracy to rob a federally insured bank, although commission of such offense is impossible
Because they would have been guilty of criminal attempt had they proceeded with the plan.

29. Defenses
Abandonment
Common law: the crime of conspiracy is complete the moment the agreement is formed (or once an overt act is committed in furtherance of the criminal objective) => abandonment of the criminal plan is not a defense
BUT if a person withdraws from a conspiracy, she may void liability for subsequent crimes committed in furtherance of the conspiracy by her former co-conspirators.

30. Defenses
Abandonment
MPC : if the conspirator renounces her criminal purpose and thwarts the success of the conspiracy under circumstances demonstrating a complete and voluntary renuniciation of her criminal intent, the MPC provides an affirmative defense to the crime of conspiracy.

31. Defenses Wharton’s rule
Common law: an agreement by two persons to commit an offense that by definition requires the voluntary concerted criminal participation of two persons cannot be prosecuted as a conspiracy
Ex: adultery and bigamy
Exceptions:
The « third party exception »: if more than the minimum number of persons necessary to commit an offense agree to commit the crime, the rule is not triggered
If the two persons involved in the conspiracy are not the two people necessarily involved in committing the substantive offense

32. Examples D1, D2 and D3 agree on the sale of illegal narcotics.
D1 and D2, two males, conspire for D2 to commit adultery with female X, a conviction of D1 and D2 for conspiracy to commit adultery is proper.

33. Defenses
The Wharton’s Rule is not recognized under the MPC