This page shows textual changes in the document between the two versions indicated in the dates above. Textual matter removed in the later version is indicated with red strikethrough and textual matter added in the later version is indicated with blue.
It is not a crime to attempt to commit most federal offenses. Unlike state law, federal law has no generally applicable crime of attempt. Congress, however, has outlawed the attempt to commit a substantial number of federal crimes on an individual basis. In doing so, it has proscribed the attempt, set its punishment, and left to the federal courts the task of further developing the law in the area.
The courts have identified two elements in the crime of attempt: an intent to commit the underlying substantive offense and some substantial step towards that end. The point at which a step may be substantial is not easily discerned; but it seems that the more serious and reprehensible the substantive offense, the less substantial the step need be. Ordinarily, the federal courts accept neither impossibility nor abandonment as an effective defense to a charge of attempt. Attempt and the substantive offense carry the same penalties in most instances.
A defendant may not be convicted of both the substantive offense and the attempt to commit it. Commission of the substantive offense, however, is neither a prerequisite for, nor a defense against, an attempt conviction.
Whether a defendant may be guilty of an attempt to attempt to commit a federal offense is often a matter of statutory construction. Attempts to conspire and attempts to aid and abet generally present less perplexing questions.
This report is available in an abridged version as CRS Report R42002, Attempt: An Abridged Overview of Federal Criminal Law, by [author name scrubbed], without the footnotes, attributions, citations to authority, or appendix found here.
Attempt is a crime of general application in every state in the Union, and is largely defined by statute in most.1 The same cannot be said of federal law. There is no generally applicable federal attempt statute.2 In fact, it is not a federal crime to attempt to commit most federal offenses. Here and there, Congress has made a separate crime of conduct that might otherwise have been considered attempt. Possession of counterfeiting equipment and solicitation of a bribe are two examples that come to mind.3 More often, Congress has outlawed the attempt to commit a particular crime, such as attempted murder, or the attempt to commit one of a particular block of crimes, such as the attempt to violate the controlled substance laws.4 In those instances, the statute simply outlaws attempt, sets the penalties, and implicitly delegates to the courts the task of developing the federal law of attempt on a case by case basis. Over the years, proposals have surfaced that would establish attempt as a federal crime of general application and in some instances would codify federal common law of attempt.5 Thus far, however, Congress has preferred to expand the number of federal attempt offenses on a much more selective basis.6
Attempt was not recognized as a crime of general application until the 19th century.7 Before then, attempt had evolved as part of the common law development of a few other specific offenses. The vagaries of these individual threads frustrated early efforts to weave them into a cohesive body of law.8 At mid-20th century, the Model Penal Code suggested a basic framework that has greatly influenced the development of both state and federal law.9
The Model Penal Code grouped attempt with conspiracy and solicitation as "inchoate" crimes of general application.10 It addressed a number of questions that had until then divided commentators, courts, and legislators.
A majority of the states use the Model Penal Code approach as a guide, but deviate with some regularity.11 The same might be said of the approach of the National Commission established to recommend revision of federal criminal law shortly after the Model Penal Code was approved.12 The National Commission recommended a revision of title 18 of the United States Code that included a series of "offenses of general applicability"—attempt, facilitation, solicitation, conspiracy, and regulatory offenses.13
Attempt consists of two elements. One is the intent to commit the underlying offense. The other is taking some substantial step, beyond mere preparation, collaborative of the intent to commit the underlying offense. The line between mere preparation and a substantial step can be hard to identify. Some suggest that the more egregious the underlying offense, the sooner preparation will become a substantial step. Defenses are few and rarely recognized. Impossibility to complete an attempted offense offers no real obstacle to conviction. Abandonment of the effort once the substantial-step line has been crossed is no defense. Entrapment may be a valid defense when the government has induced commission of the crime and the defendant lacks predisposition to engage in the criminal conduct. The penalties for attempt and for the underlying offense are almost always the same. The United States Sentencing Guidelines may operate to mitigate the sentences imposed for attempts to commit the most severely punished underlying offenses. Attempt to commit a particular crime overlaps with several other grounds for criminal liability. The offense of conspiracy, for example, is the agreement of two or more to commit an underlying offense at some time in the future. Attempt does not require commission of the underlying offense; nor does conspiracy. Attempt requires a substantial step; conspiracy may, but does not always, require an overt act in furtherance of the conspiracy. A defendant may be convicted of both an underlying offense and conspiracy to commit that offense. A defendant may be convicted of either an attempt to commit an underlying offense or the underlying offense, but not both. A defendant may be convicted of both attempt and conspiracy to commit the same underlying crime. Aiding and abetting is not a separate crime. Aiders and abettors (accomplices before the fact) are treated as if they committed the underlying offense themselves. Aiding and abetting requires a completed underlying offense; attempt does not. The punishment for aiding and abetting is the same as for hands-on commission of the offense; the punishment for attempt is often the same as for the underlying offense. A defendant may convicted of attempting to aid and abet or of aiding and abetting an attempted offense. Attempt and its underlying offense are distinct crimes. A defendant may not be convicted of both attempt and its underlying offense. Completion of the underlying offense is no defense to a charge of attempt. Attempt is an offense of misconduct incomplete, frustrated, or prevented.1 It is an offense of general application in every state in the Union, and is largely defined by statute in most.2 The same cannot be said of federal law. There is no generally applicable federal attempt statute.3 The absence of a general prohibition, however, can be deceptive. Federal prosecution is the likely result for anyone who attempts to commit any of the most common federal crimes. Congress has elected to proscribe attempt on a case-by-case basis, outlawing attempt to commit a particular crime or group of crimes, such as attempted murder and attempted drug trafficking.4 In those instances, the statute outlaws attempt, sets the penalty, and implicitly delegates to the courts the task of developing the federal law of attempt on a case-by-case basis. Here and there, Congress has made a separate crime out of conduct that might otherwise have been considered attempt. Possession of counterfeiting equipment and solicitation of a bribe are two examples of these attempt-like crimes.5 Occasionally, Congress has enjoined attempts to commit these attempt-like substantive offenses, as in the case of attempted possession of a controlled substance with intent to distribute.6 Over the years, proposals have surfaced that would establish attempt as a federal crime of general application, codify federal common law of attempt, and perhaps adopt some of the adjustments recommended by the Model Penal Code and found in the states.7 Thus far, however, Congress has preferred to maintain the federal law of attempt in its current state and to expand the number of federal attempt offenses on a selective basis.8 Attempt was not recognized as a crime of general application until the 19th Century.9 Before then, attempt had evolved as part of the common law development of a few substantive offenses.10 The vagaries of these individual threads frustrated early efforts to weave them into a cohesive body of law.11 At mid-20th Century, the Model Penal Code suggested a basic framework that has greatly influenced the development of both state and federal law.12 The Model Penal Code grouped attempt with conspiracy and solicitation as "inchoate" crimes of general application.13 It addressed a number of questions that had until then divided commentators, courts, and legislators. A majority of the states use the Model Penal Code approach as a guide, but deviate with some regularity.14 The same might be said of the approach of the National Commission established to recommend revision of federal criminal law shortly after the Model Penal Code was approved.15 The National Commission recommended a revision of title 18 of the United States Code that included a series of "offenses of general applicability"—attempt, facilitation, solicitation, conspiracy, and regulatory offenses.16 In spite of efforts that persisted for more than a decade, Congress never enacted the National Commission's recommended revision of title 18.14Attempt is the incomplete form of some other underlying offense. Unlike state law, federal law does not feature a general attempt statute. Instead, federal law outlaws the attempt to commit a number of federal underlying offenses on an individual basis. Occasionally, federal law treats attempt-like conduct as an underlying offense; outlawing possession of drugs with intent to traffic, for instance. One way or another, it is a federal crime to attempt to commit nearly all of the most frequently occurring federal offenses.
Introduction
Attempt may once have required little more than an evil heart.1518 That time is long gone. The Model Penal Code defined attempt as the intent required of the predicate offense coupled with a "substantial step": "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 ... 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."1619 The Model Penal Code then provided several examples of what might constitute a "substantial step"—lying in wait, luring the victim, gathering the necessary implements to commit the offense, and the like.17
The National Commission recommended a similar definition: "A person is guilty of criminal attempt if, acting with the kind of culpability otherwise required for commission of a crime, he intentionally engages in conduct which, in fact, constitutes a substantial step toward commission of the crime."1821 Rather than mention the type of conduct that might constitute a substantial step, the Commission definedborrowed the Model Penal Code language to define it: "A substantial step is any conduct which is strongly corroborative of the firmness of the actor's intent to complete the commission of the crime."19
Most of the states follow the same path and define attempt as intent coupled towith an overt act or some substantial step towards the completion of the substantive offense.2023 Only rarely does a state include examples of substantial step conduct.2124
The federal courts are in accord and have said,: "As was true at common law, the mere intent to violate a federal criminal statute is not punishable as an attempt unless it is also accompanied by significant conduct," that is, unless accompanied by "an overt act qualifying as a substantial step toward completion" of the underlying offense.2225
The courts seem to have encountered little difficulty in identifying the requisite intent standard. In fact, theyThey rarely do more than note that the defendant must be shown to have intended to commit the underlying offenses.23offense.26 What constitutes a substantial step is a little more difficult to discern.2427 It is said that a substantial step is more than mere preparation.2528 A substantial step is action strongly or unequivocally corroborative of the individual's intent to commit the underlying offense.2629 It is action which, if uninterrupted, will result in the commission of that offense,2730 although it need not be the penultimate act necessary for completion of the underlying offense.2831 Furthermore, the point at which preliminary action becomes a substantial step is fact specific; action that constitutes a substantial step under some circumstances and with respect to some underlying offenses may not qualify under other circumstances and with respect to other offenses.2932
It is difficult to read the cases and not find that the views of Oliver Wendell Holmes continue to hold sway: the line between mere preparation and attempt is drawn where the shadow of the substantive offense begins.30 The line between preparation and attempt is closest to preparation where the harm and the opprobrium associated with the predicate offense are greatest.
Since conviction for attempt does not require commission of the predicate offense, conviction for attempt does not necessitate proof of every element of the predicate offense,31 or any element of the predicate offense for that matter. Recall that the only elements of the crime of attempt are intent to commit the predicate offense and a substantial step in that direction. Nevertheless, a court will sometimes demand proof of one or more of the elements of a predicate offense in order to avoid sweeping application of an attempt provision. For instance, the Third Circuit has held that "acting 'under color of official right' is a required element of an extortion Hobbs Act offense, inchoate or substantive," apparently for that very reason.32
Federal criminal law prohibits several attempt-like, second degree substantive offenses. These involve steps along the way to commission of a first degree substantive offense, e.g., burglary (first degree substantive offense); possession of burglary tools (second degree substantive offense). They include crimes such as making counterfeiting plates,34 materially assisting a terrorist offense,35 enticing a child to engage in sexual activity,36 and possession of controlled substances with intent to distribute.37 Federal law also condemns attempts to commit some, but not all, of these second degree substantive offenses.38 The same rules apply to attempts to commit second degree substantive offenses as to first degree substantive offenses. They have two elements: intent and a substantial step.39 The penalties for attempting to commit them are the same as the penalty to commit them.40 Instances where federal law condemns an attempt-to-attempt offense present an intriguing question of interpretation. Occasionally, a federal statute will call for equivalent punishment for attempt to commit any of a series of offenses proscribed in other statutes, even though one or more of the other statutes already outlaw attempt. For example, 18 U.S.C. § 1349 declares that any attempt to violate any of the provisions of chapter 63 of title 18 of the United States Code "shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt."41 Within chapter 63 are sections that make it a crime to attempt to commit bank fraud, health care fraud, or securities fraud.42 There may be some dispute over whether provisions like those of Section 1349 are intended to outlaw attempts to commit an attempt or to reiterate a determination to punish equally the substantive offenses and attempts to commit them.43 Defendants charged with attempt have often offered one of two defenses—impossibility and abandonment33 The greater the harm of the completed offense, the farther from completion a substantial step will first be seen.
competedcompleted offense would not be a crime, neither is a prosecution for attempt permitted."33
Factual impossibility exists when "the objective of the defendant is proscribed by criminal law but a circumstance unknown to the actor prevents him from bringing about that objective."3445 Since the completed offense would be a crime if circumstances were as the defendant believed them to be, prosecution for attempt is traditionally permitted.3546
UnfortunatelyYet, as the courts have observed, "the distinction between legal impossibility and factual impossibility [is] elusive."3647 Moreover, "the distinction ... is largely a matter of semantics, for every case of legal impossibility can reasonably be characterized as a factual impossibility."37 Thus, shooting a stuffed deer when intending to shoot a deer out of season is offered as an example of legal impossibility. Yet, shooting into the pillows of an empty bed when intending to kill its presumed occupant is considered an example of factual impossibility.38
The Model Penal Code avoided the problem by definingdefined attempt to include instances when the defendant acted with the intent to commit the predicate offense and "engage[d] in conduct that would constitute the crime if the attendant circumstances were as he believe[d] them to be."3949 Under the National Commission's Final Report, "[f]actual or legal impossibility of committing the crime is not a defense if the crime could have been committed had the attendant circumstances been as the actor believed them to be."4050 Several states have also specifically refused to recognize an impossibility defense of any kind.4151
The federal courts have been a bit more cautious. They have sometimes conceded the possible vitality of legal impossibility as a defense,4252 but generally have judged the cases before them to involve no more than unavailing factual impossibility.4353 In a few instances, they have found it unnecessary to enter the quagmire, and concluded instead that Congress intended to eliminate legal impossibility with respect to attempts to commit a particular crime.4454
The Model Penal Code recognized an abandonment or renunciation defense.4555 A defendant, however, could not claim the defense if his withdrawal was merely a postponement or was occasioned by the appearance of circumstances that made success less likely.4656 The revised federal criminal code recommended by the National Commission contained similar provisions.4757 Some states recognize an abandonment or renunciation defense;4858 the federal courts do not.
Admittedly, a defendant cannot be charged with attempt if he has abandoned his pursuit of the substantive offense at the mere preparation stage. Yet, this is for want of an element of the offense of attempt—a substantial step—rather than because of the availability of an affirmative abandonment defense. Although the federal courts have recognized an affirmative voluntary withdrawal defense in the case of conspiracy, the other principal inchoate offense, The law affords defendants a limited entrapment defense when the government or its agents have had a hand in the commission of the offense. The Model Penal Code and the National Commission both endorsed a general entrapment defense.61 Most states recognize the defense in one form or another either by statute or under common law.62 The federal courts recognize two forms of entrapment, but rarely find them applicable. One speaks to the level of government intervention and the other primarily to the defendant's susceptibility to temptation. The first, "'[e]ntrapment by estoppel, arises when a government official tells a defendant that certain conduct is legal, and the defendant commits what otherwise would be a crime in reasonable reliance in the official representation.'"63 The second entrapment defense "has two related elements: government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct."64 The defendant must offer evidence of government inducement,65 after which the government must prove predisposition of the defendant beyond a reasonable doubt.66 Government inducement for purposes of the entrapment defense consists of government overreaching involving "intimidation, threats, dogged insistence, or excessive pressure."67 Offering a defendant the opportunity to commit a crime, without more, does not qualify as government overreaching;68 some courts have described the necessary degree of inducement as overpowering or overbearing.69 "Predisposition 'focuses upon whether the defendant was an unwary innocent or, instead, an unwary criminal who readily availed himself of the opportunity to perpetrate the crime.'"70 Whether the defendant was an "unwary innocent" or, instead, an "unwary criminal" turns on the facts in a particular case.71 The factors that a jury might appropriately consider include: (1) the defendant's character or reputation; (2) whether the government initially suggested the criminal activity; (3) whether the defendant engaged in the criminal activity for profit; (4) whether the defendant evidenced a reluctance to commit the offense that was overcome by government persuasion; and (5) the nature of the inducement or persuasion by the government.72 Successful claims are rare, but not unknown.734959 they have declined to recognize a comparable defense to a charge of attempt.5060
Entrapment
The Model Penal Code and the National Commission's Final Report both imposed the same sanctions for attempt as for the predicate offense as a general rule.74 However, both set the penalties for the attempts to commit the most serious offenses at a class below that of the predicate offense, and both permitted the sentencing court to impose a reduced sentence in cases when the attempt failed to come dangerously close to the attempted predicate offense.5175 The states set the penalties for attempt in one of two ways. Some set sanctions at a fraction of, or a class below, that of the substantive offense, with exceptions for specific offenses in some instances;5276 others set the penalty at the same level as the crime attempted, again with exceptions for particular offenses in some states.5377
Most federal attempt crimes carry the same penalties as the substantive offense.5478 The Sentencing Guidelines, which greatly influence federal sentencing beneath the maximum penalties set by statute, reflect the equivalent sentencing prospective.5579 Except for certain terrorism, drug trafficking, assault, and tampering offenses, however, the Guidelines recommend slightly lower sentences for defendants who have yet to take all the steps required of them for commission of the predicate offense.56
The relation of attempt to the predicate offense is another of the interesting features of the law of attempt. It raises those questions which the Model Penal Code and the National Commission sought to address. May a defendant be charged with attempt even if he has not completed the underlying offense? May a defendant be charged with attempt even if he has also committed the underlying offense? May a defendant be convicted for both attempt and commission of the underlying offense? May a defendant be charged with attempting to attempt an offense? May a defendant be charged with conspiracy to attempt or attempt to conspire? May a defendant be charged with aiding and abetting an attempt or with attempting to aid and abet?
A defendant need not complete the predicate offense to be guilty of attempt.57 On the other hand, some 19th century courts held that a defendant could not be convicted of attempt if the evidence indicated that he had in fact committed the predicate offense.58 This is no longer the case in federal court—if it ever was. In federal law, "[n]either common sense nor precedent supports success as a defense to a charge of attempt."59
The Double Jeopardy Clause ordinarily precludes conviction for both the substantive offense and the attempt to commit it. The clause prohibits both dual prosecutions and dual punishment for the same offense.60 Punishment for both a principal and a lesser included offense constitutes such dual punishment,61 and attempt ordinarily constitutes a lesser included offense of the substantive crime.62
Instances where the federal law literally appears to create an attempt to attempt offense present an intriguing question of interpretation. Occasionally, a federal statute will call for equivalent punishment for attempt to commit any of a series of offenses proscribed in other statutes, even though the other statutes already proscribe attempt. For example, 18 U.S.C. 1349 declares that any attempt to violate any of the provisions of chapter 63 of title 18 of the United States Code "shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt."63 Within chapter 63 are sections that make it a crime to attempt to commit bank fraud, health care fraud, and securities fraud.64 There may be some dispute over whether provisions like those of Section 1349 are intended to outlaw attempts to commit an attempt or simply to reiterate a determination to punish equally the substantive offenses and attempts to commit them.65
The Model Penal Code and National Commission resolved attempt to attempt and conspiracy to attempt questions by banning dual application. Crimes of general application would not have applied to other crimes of general application.66 A few states have comparable provisions.67 The federal code does not. The attempting to conspire or conspiring to attempt questions do not offer as many issues of unsettled interpretation as the attempt to attempt questions, for several reasons. First, the courts have had more occasion to address them. For instance, it is already clearly established that a defendant may be simultaneously prosecuted for conspiracy to commit and for attempt to commit the same substantive offense.68 Second, as a particular matter, conspiracies to attempt a particular crime are relatively uncommon; most individuals conspire to accomplish, not to attempt.
Third, in a sense, attempting to conspire is already a separate crime, or alternatively, is a separate basis for criminal liability. Solicitation is essentially an invitation to conspire, and solicitation to commit a crime of violence is a separate federal offense.69 Moreover, an attempt that takes the form of counseling, commanding, inducing, procuring or aiding and abetting another to commit a federal crime is already a separate basis for criminal liability.70
Fourth, a component of the general conspiracy statute allows simultaneous prosecution of conspiracy and a substantive offense without having to addressing the conspire to attempt quandary. The conspiracy statute outlaws two kinds of conspiracies: conspiracy to violate a federal criminal statute and conspiracy to defraud the United States.71 Conspiracy to defraud the United States is a separate crime, one that need not otherwise involve the violation of a federal criminal statute.72 Consequently, when attempt or words of attempt appear as elements in a substantive criminal provision, conspiracy to attempt issues can be avoided by recourse to a conspiracy to defraud charge. For example, the principal federal bribery statute outlaws attempted public corruption.73 The offense occurs though no tainted official act has yet been performed or foregone.74 It is enough that the official has sought or been offered a bribe with the intent of corrupting the performance of his duties.75 Bribery conspiracy charges appear generally to have been prosecuted, along with bribery, as conspiracy to defraud rather than conspiracy to violate the bribery statute.76
Unlike attempt, aiding and abetting is not a separate offense; it is an alternative basis for liability for the substantive offense. Anyone who aids, abets, counsels, commands, induces, or procures the commission of a federal crime by another is as guilty as if he committed it himself.77 Aiding and abetting requires proof of intentional assistance in the commission of a crime by another.78 When attempt is a federal crime, the cases suggest that a defendant may be punished for aiding and abetting the attempt and that a defendant may be punished by attempting to aid and abet the substantive offense.79
Ala. Code §§13A-4-2, 13A-4-5; Alaska Stat. §§11.31.100, 11.31.140, 11.31.150; Ariz. Rev. Stat. Ann. §§13-1001, 13-1005; Ark. Code Ann. §§5-3-201 to 5-3-204; Cal. Penal Code §664; Colo. Rev. Stat. Ann. §18-2-101; Conn. Gen. Stat. Ann. §53a-49; Del. Code Ann. tit.11 §§531, 532, 541; Fla. Stat. Ann. §777.04; Ga. Code §§16-4-1 to 16-4-6; Hawaii Rev. Stat. §§705-500 to 705-502, 705-530 to 705-531; Idaho Code §§18-305 to 18-307; Ill. Comp. Stat. Ann. ch. 720 §§5/8-4, 5/8-5; Ind. Code Ann. §§35-41-5-1, 35-41-5-3; Kan. Stat. Ann. §21-5301; Ky. Rev. Stat. Ann. §§506.010, 506.020, 506.110; La. Rev. Stat. Ann. §14:27; Me. Rev. Stat. Ann. tit. 17-A §§152, 154; Md. Code Ann. Crim. Law §1-201; Mass. Gen. Laws Ann. ch. 274 §6; Mich. Comp. Laws Ann. §750.92; Minn. Stat. Ann. §609.17; Miss. Code Ann. §§97-1-7, 97-1-9; Mo. Ann. Stat. §564.011; Mont. Code Ann. §45-4-103; Neb. Rev. Stat. §28-201; Nev. Rev. Stat. §193.330; N.H. Rev. Stat. Ann. §629.1; N.J. Stat. Ann. §§2C:5-1, 2C:5-4; N.M. Code Ann. §30-28-1; N.Y. Penal Law §§110.00 to 110.10, 40.10; N.C. Gen. Stat. §14-2.5; N.D. Cent. Code §§12.1-06-01, 12.1-06-05; Ohio Rev. Code Ann. §2923.02; Okla. Stat. Ann. tit.21§§41 to 44; Ore. Rev. Stat. Ann. §§161.405 to 161.430; Pa. Stat. Ann. tit. 18, §§901, 905, 906; R.I. Gen. Laws Ann. §12-17-14; S.C. Code Ann. §16-1-80; S.D. Codified Laws §§22-4-1, 22-4-2; Tenn. Code Ann. §§39-12-101, 104 to 109; Tex. Penal Code Ann. §§15.01, 15.04, 15.05; Utah Code Ann. §§76-4-101, 76-4-102; Vt. Stat. Ann. tit. 13 §9; Va. Code §§18.2-25 to 18.2-28; Wash. Rev. Code Ann. §9A.28.020; W.Va. Code Ann. §61-11-8; Wis. Stat. Ann. §939.32; Wyo. Stat. Ann. §§6-1-301, 6-1-304.
Author Contact Information
| 1. | Attempt and conspiracy are inchoate offenses; crimes on their way to becoming other crimes unless stopped or abandoned. Conspiracy is a scheme to commit another crime.81 Attempt is an endeavor to commit another crime.82 Conspiracy requires two or more offenders;83 attempt needs but one.84 Intent to commit some target or predicate offense or misconduct satisfies the mens rea element in both cases.85 Attempt always, and conspiracy often, occurs only with the commission of some affirmative act—some overt act or substantive step—in furtherance of the criminal objective. Both attempt and conspiracy generally carry the same punishment as their predicate offenses.86 Conspiracy and its predicate offense, however, exist as separate crimes that may be punished separately,87 while attempt constitutes only a lesser-included component of its predicate offense.88 Neither attempt nor conspiracy requires the completion of a predicate offense before prosecution.89 Conspiracy admits a narrow defense of withdrawal;90 attempt does not.91 Neither offers anything but the most remote prospect of an impossibility or entrapment defense.92 The courts have affirmed convictions for both conspiracy and attempt to commit the same underlying predicate offense.93 Congress has made solicitation, essentially an attempt to conspire, a separate federal offense in 18 U.S.C. § 373. Section 373 prohibits efforts to induce another to commit a crime of violence "under circumstances strongly corroborative" of intent to see the crime committed.94 Section 373's crimes of violence are federal "felon[ies] that [have] as an element the use, attempted use, or threatened use of physical force against property or against the person of another."95 Examples of "strongly corroborative" circumstances include "the defendant offering or promising payment or another benefit in exchange for committing the offense; threatening harm or other detriment for refusing to commit the offense; repeatedly soliciting or discussing at length in soliciting the commission of the offense, or making explicit that the solicitation is serious; believing or knowing that the persons solicited had previously committed similar offenses; and acquiring weapons, tools, or information for use in committing the offense, or making other apparent preparations for its commission."96 As is the case of attempt, "[a]n individual cannot be guilty of both the solicitation of a crime and the substantive crime."97 Although the crime of solicitation is complete upon communication with the requisite intent, renunciation prior to commission of the substantive offense is a statutory defense.98 The offender's legal incapacity to commit the solicited offense himself, however, is not a defense.99 Unlike attempt, aiding and abetting (acting as an accomplice before the fact) is not a separate offense; it is an alternative basis for liability for a substantive offense.100 Anyone who aids, abets, counsels, commands, induces, or procures the commission of a federal crime is as guilty as if he committed it himself.101 Aiding and abetting requires proof of intentional assistance in the commission of a crime.102 When attempt is a federal crime, the cases suggest that a defendant may be punished for aiding and abetting the attempt to commit the substantive offense or for attempting to aid and abet the commission of the substantive offense.103 A defendant need not complete the substantive underlying offense to be guilty of attempt.104 On the other hand, some 19th Century courts held that a defendant could not be convicted of attempt if the evidence indicated that he had in fact committed the predicate offense.105 This is no longer the case in federal court—if it ever was. Under federal law, "[n]either common sense nor precedent supports success as a defense to a charge of attempt."106 Since conviction for attempt does not require commission of the predicate offense, conviction for attempt does not necessitate proof of every element of the predicate offense,107 or any element of the predicate offense for that matter, other than intent. Recall that the only elements of the crime of attempt are intent to commit the predicate offense and a substantial step in that direction. Nevertheless, a court will sometimes demand proof of completion of one or more of the elements of a predicate offense in order to narrow the attempt provision. For instance, the Third Circuit has held that "acting 'under color of official right' is a required element of an extortion Hobbs Act offense, inchoate [i,e., attempt] or substantive," apparently for that very reason.108 Conversely, when Congress has made a predicate offense's substantial step a separate crime (a second degree substantive offense), the government need only prove intent and a substantial step towards completion of the new crime. For instance, federal law separately prohibits engaging in sexual activity with a child, enticing a child to engage in sexual activity (a second degree crime), and attempting to induce a child to engage in sexual activity.109 To convict a defendant of attempt, the government must establish an intent and substantial step towards enticement, but need not establish that the defendant otherwise attempted to engage in sexual activity with a child.110 Ala. Code §§ 13A-4-2, 13A-4-5 (2006);111 Alaska Stat. §§ 11.31.100, 11.31.140, 11.31.150 (2018); Ariz. Rev. Stat. Ann. §§ 13-1001, 13-1005 (2010); Ark. Code Ann. §§ 5-3-201 to 5-3-204 (2013); Cal. Penal Code § 664 (2010); Colo. Rev. Stat. Ann. § 18-2-101 (2018); Conn. Gen. Stat. Ann. § 53a-49 (2012); Del. Code Ann. tit.11 §§ 531, 532, 541 (2015); Fla. Stat. Ann. § 777.04 (2017); Ga. Code §§ 16-4-1 to 16-4-6 (2019); Hawaii Rev. Stat. §§ 705-500 to 705-502, 705-530 to 705-531 (2016); Idaho Code §§ 18-305 to 18-307 (2016); Ill. Comp. Stat. Ann. ch. 720 §§ 5/8-4, 5/8-5 (2016); Ind. Code Ann. §§ 35-41-5-1, 35-41-5-3 (2009); Kan. Stat. Ann. § 21-5301(2007); Ky. Rev. Stat. Ann. §§ 506.010, 506.020, 506.110 (2014); La. Rev. Stat. Ann. § 14:27 (2016); Me. Rev. Stat. Ann. tit. 17-A §§ 152 to 154 (2006); Md. Code Ann. Crim. Law § 1-201 (2012); Mass. Gen. Laws Ann. ch. 274 § 6 (2014); Mich. Comp. Laws Ann. § 750.92 (2004); Minn. Stat. Ann. § 609.17 (2018); Miss. Code Ann. §§ 97-1-7, 97-1-9 (2015); Mo. Ann. Stat. § 562.012 (2012); Mont. Code Ann. § 45-4-103 (2017); Neb. Rev. Stat. § 28-201 (2008); Nev. Rev. Stat. § 193.330 (2012); N.H. Rev. Stat. Ann. § 629.1 (2016); N.J. Stat. Ann. §§ 2C:5-1, 2C:5-4 (2015); N.M. Code Ann. § 30-28-1 (2004); N.Y. Penal Law §§ 110.00 to 110.10, 40.10 (2009); N.C. Gen. Stat. § 14-2.5 (2017); N.D. Cent. Code §§ 12.1-06-01, 12.1-06-05 (2012); Ohio Rev. Code Ann. § 2923.02 (2014); Okla. Stat. Ann. tit. 21 §§ 41 to 44 (2018); Ore. Rev. Stat. Ann. §§ 161.405 to 161.430, 161.485; Pa. Stat. Ann. tit. 18, §§ 901, 905, 906 (2015); R.I. Gen. Laws Ann. § 12-17-14 (2002); S.C. Code Ann. § 16-1-80 (2015); S.D. Codified Laws §§ 22-4-1, 22-4-2 (2017); Tenn. Code Ann. §§ 39-12-101, 104 to 109 (2018); Tex. Penal Code Ann. §§ 15.01, 15.04, 15.05 (2019); Utah Code Ann. §§ 76-4-101, 76-4-102 (2017); Vt. Stat. Ann. tit. 13 §§ 9, 10 (2018); Va. Code §§ 18.2-25 to 18.2-28 (2014); Wash. Rev. Code Ann. § 9A.28.020 (2015); W.Va. Code Ann. § 61-11-8 (2014); Wis. Stat. Ann. § 939.32 (2005); Wyo. Stat. Ann. §§ 6-1-301, 6-1-304 (2019). Author Contact Information This report is available in an abridged version as CRS Report R42002, Attempt: An Abridged Overview of Federal Criminal Law, by Charles Doyle, without the footnotes, attributions, citations to authority, or appendix found here. | ||||||||||||||||||||||||||||||
| 2. | Here and throughout, the date that appears in the citation to a state code refers to the publication date of the volume of the state code in which the cited law appears; it does NOT refer to the date of the cited law's enactment or to its currency. |
||||||||||||||||||||||||||||||
|
18 U.S.C. |
|||||||||||||||||||||||||||||||
|
18 U.S.C. |
|||||||||||||||||||||||||||||||
|
E.g., H.R. 1823 ( |
|||||||||||||||||||||||||||||||
|
E.g., P.L. 115-164, § 3, 132 Stat. 1253 (2018); 18 U.S.C. § 2421A (attempting to promote prostitution); P.L. 112-127, § 3, 126 Stat. 371 (2012); 18 U.S.C. § 555(d) (attempting to use or construct a border tunnel).
| |||||||||||||||||||||||||||||||
| 7. |
|
||||||||||||||||||||||||||||||
|
|
11.
The offenses that a defendant attempts to commit are referred to alternatively as substantive, underlying, or predicate offenses. |
See, e.g., 1 Joel Prentiss |
|||||||||||||||||||||||||||||
|
The American Law Institute began drafting the Model Penal Code in 1952. Its final draft was approved a decade later in May |
|||||||||||||||||||||||||||||||
|
"Article 5 undertakes to deal systematically with attempt, solicitation and conspiracy. These offenses have in common the fact that they deal with conduct that is designed to culminate in the commission of a substantive offense, but has failed in the discrete case to do so or has not yet achieved its culmination because there is something that the actor or another still must do. The offense are inchoate in this sentence |
|||||||||||||||||||||||||||||||
|
For a discussion of some of the diversity of state |
|||||||||||||||||||||||||||||||
|
|
|||||||||||||||||||||||||||||||
|
Final Report of the National Commission on Reform of Federal Criminal Laws: |
|||||||||||||||||||||||||||||||
|
Efforts to enact to the National Commission's |
|||||||||||||||||||||||||||||||
|
"There must be in the case of robbery ... something feloniously taken, for alto anciently ... an attempt to rob was reputed felony, voluntas reputabatur pro facto [ | |||||||||||||||||||||||||||||||
|
Model Penal Code § 5.01(1)(c). The Model Penal Code's alternative definitions provided: "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." Id. |
|||||||||||||||||||||||||||||||
|
Id. |
|||||||||||||||||||||||||||||||
|
Final Report § 1001(1). |
|||||||||||||||||||||||||||||||
|
Id. |
|||||||||||||||||||||||||||||||
|
E.g., Ala. Code § |
|||||||||||||||||||||||||||||||
|
E.g., Conn. Gen. Stat. Ann. § 53a-49(b) (2012) ("Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor's criminal purpose, shall not be held insufficient as a matter of law: (1) Lying in wait, searching for or following the contemplated victim of the crime; (2) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (3) reconnoitering the place contemplated for the commission of the crime; (4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; (5) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; (6) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (7) soliciting an innocent agent to engage in conduct constituting an element of the crime."). The states more often include a corroboration definition or requirement comparable to that of the Commission's recommendation. See, e.g., N.D. Cent. Code Ann. § 12.1-06-01 [1] (2012); Tenn. Code Ann. § 39-12-101(b) (2018); Wyo. Stats. Ann. § 6-1-301(a)(i) (2019).
25 | |||||||||||||||||||||||||||||||
|
United States v. |
|||||||||||||||||||||||||||||||
|
E.g., Anderson, 932 F.3d at 350 ("'To be guilty of an attempt, the defendant (1) must have been acting with the … culpability otherwise required for the commission of the crime which he is charged with attempting ….'" (quoting United States v. Salazar, 958 F.2d 1285, 1293 (5th Cir. 1992))); |
|||||||||||||||||||||||||||||||
|
United States v. Dobbs, 629 F.3d 1199, 1208 ( |
|||||||||||||||||||||||||||||||
|
|
|||||||||||||||||||||||||||||||
|
|
|||||||||||||||||||||||||||||||
|
United States v. |
|||||||||||||||||||||||||||||||
|
|
|||||||||||||||||||||||||||||||
|
Soto-Barraza, 947 F.3d at 1120 ("Conduct that would appear to be mere preparation in one case might qualify as a substantial step in another,"); United States v. Larive, 794 F.3d 1016, 1019 (8th Cir. 2015); Muratovic, 719 F.3d at 815 |
|||||||||||||||||||||||||||||||
|
Oliver Wendell Holmes, The Common Law, 68 (1938 ed.) |
|||||||||||||||||||||||||||||||
| 31. |
United States v. Pires, 642 F.3d 1, 6 (1st Cir. 2011); United States v. Manzo, 636 F.3d 56, 66 (3d Cir. 2011). |
||||||||||||||||||||||||||||||
|
|
18 U.S.C. § 474 ("Whoever makes … any plate … in the likeness of any plate designated for the printing of such obligation or security [of the United States] …."). Counterfeiting is a separate offense. Id. at § 471. 35.
|
|
Id. § 2339A ("Whoever provides material … resources … intending that they are to be used in … a violation [of one of lists of designated federal terrorist offenses]…."). 36.
|
|
Id. § 2422(b) ("Whoever … within the special maritime and territorial jurisdiction of the United States knowingly ("Whoever … within the special maritime and territorial jurisdiction of the United States knowingly … entices … any individual [under 18 years of age] … any individual [under 18 years of age] … to engage in … sexual activity …."). It is a separate offense for an adult to engage in sexual activity with a child within the special maritime or territorial jurisdiction of the United States. Id. § 2241(c). 37.
|
|
21 U.S.C. § 841(a)(1) ("[I]t shall be unlawful for any person knowingly … to possess with intent to distribute … a controlled substance."). It is a separate offense to distribute a controlled substance. Id. 38.
|
|
E.g., 18 U.S.C. § 2339A ("Whoever provides material … resources … intending that they are to be used in … a violation [of one of lists of designated federal terrorist offenses]… or attempts … to do such act ...." (emphasis added)); id. § 2422(b) ("Whoever … within the special maritime and territorial jurisdiction of the United States knowingly … entices … any individual [under 18 years of age] … to engage in … sexual activity …or attempts to do so …." (emphasis added)); 21 U.S.C. § 846 ("Any person who attempts … to commit any offense defined in this subchapter [which includes § 841] …."). |
United States v. | |||||||||||||||||||||
| 40.
|
|
18 U.S.C. § 2339A ("Whoever provides material … resources … intending that they are to be used in … a violation [of one of lists of designated federal terrorist offenses]… or attempts … to do such act ... shall be imprisoned for any term of years or for life." (emphasis added)); id. § 2422(b) ("Whoever … within the special maritime and territorial jurisdiction of the United States knowingly … entices … any individual [under 18 years of age] … to engage in … sexual activity …or attempts to do so … shall be fined under title and imprisoned not less than 10 years or fore life." (emphasis added)); 21 U.S.C. § 846 ("Any person who attempts … to commit any offense defined in this subchapter [which includes § 841] shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt …."). 41.
|
|
Other examples include 18 U.S.C. § 1594 (human trafficking) and 21 U.S.C. § 846 (controlled substances). 42.
|
|
18 U.S.C. § 1344 ("Whoever knowingly executes, or attempts to execute, a scheme or artifice—(1) to defraud a financial institution ... shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both."); see also 18 U.S.C. § 1347 (health care fraud) and id. § 1348 (securities and commodities fraud). 43.
|
|
The issue is conceptually difficult and one of proximity to the substantive offense, such as defrauding a bank. A court might conclude, for example, that, without more, studying the auditing procedures of a bank would constitute no more than mere preparation for the substantive crime of defrauding the bank. On the other hand, it might conclude that such study would constitute a substantial step towards endeavoring (attempting) to attempt to defraud the bank. For a general discussion of judicial treatment of "attempt to attempt," "conspiracy to attempt," and "attempt to conspire" cases in both state and federal courts see Robbins, Double Inchoate Crimes, 26 Harv. J. Leg. 1 (1989). |
United States v. Ballinger, 395 F.3d 1218, 1239 n.8 ( |
||||||||||||||||||||||
|
United States v. Rehak, 589 F.3d 965, 971 ( |
|||||||||||||||||||||||||||||||
|
United States v. |
|||||||||||||||||||||||||||||||
|
|
|||||||||||||||||||||||||||||||
|
United States v. Tykarsky, 446 F.3d | |||||||||||||||||||||||||||||||
| 38. | Id. at 465. |
||||||||||||||||||||||||||||||
|
Model Penal Code § 5.01(1)(a). |
|||||||||||||||||||||||||||||||
|
Final Report § 1001(1). |
|||||||||||||||||||||||||||||||
|
E.g., Colo. Rev. Stat. Ann. § 18-2-101(1) (2018) ("Factual or legal impossibility of committing the offense is not a defense if the offense could have been committed had the attendant circumstances been as the actor believed them to be."); Ga. Code § 16-4-4 (2019); Ill. Comp. Stat. Ann. ch. 720 § 5/8-4(b) (2016) ("It is not a defense to a charge of attempt that because of a misapprehension of the circumstances it would have been impossible for the accused to commit the offense attempted."). |
|||||||||||||||||||||||||||||||
|
United States v. Mehanna, 735 F.3d 32, 52 ( |
|||||||||||||||||||||||||||||||
|
United States v. | |||||||||||||||||||||||||||||||
| 54.
|
|
|
|||||||||||||||||||||||||||||
|
Model Penal Code § 5.01(4) ("When an actor's conduct would otherwise constitute an attempt … it is an affirmative defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose."). |
|||||||||||||||||||||||||||||||
|
|
|||||||||||||||||||||||||||||||
|
Final Report § 1005(3)(a), (c). |
|||||||||||||||||||||||||||||||
|
E.g., Minn. Stat. Ann. § 609.17[subd.3] (2018) ("It is a defense to a charge of attempt that the crime was not committed because the accused desisted voluntarily and in good faith and abandoned the intention to commit the crime."); Mont. Code Ann. § 45-4-103(4) (2017) ("A person is not liable under this section if, under circumstances manifesting a voluntary and complete renunciation of criminal purpose, the person avoided the commission of the offense attempted by abandoning the person's criminal effort."); N.H. Rev. Stat. Ann. § 629.1[III] (2016) ("(a) It is an affirmative defense to prosecution under this section that the actor voluntarily renounces his criminal purpose by abandoning his effort to commit the crime or otherwise preventing its commission under circumstances manifesting a complete withdrawal of his criminal purpose. (b) A renunciation is not 'voluntary' if it is substantially motivated by circumstances the defendant was not aware of at the inception of his conduct which increase the probability of his detection or which make more difficult the commission of the crime. Renunciation is not complete if the purpose is to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim."). |
|||||||||||||||||||||||||||||||
|
United States v. |
|||||||||||||||||||||||||||||||
|
United States v. Temkin, 797 F.3d 682, 690 (9th Cir. 2015) ("Temkin's abandonment argument fails because abandonment is not a defense when as attempt, as here, 'has proceeded well beyond preparation.'" (quoting United States v. Fleming, 215 F.3d 930, 936 (9th Cir. 2000))); United States v. Young, 613 F.3d 735, 745 ( | |||||||||||||||||||||||||||||||
| 51. |
Final Report §1001(3)("Criminal attempt is an offense of the same class as the offense attempted, except that *(a) an attempt to commit a Class A felony shall be a Class B felony, and (b) whenever it is established by a preponderance of the evidence at sentencing that the conduct constituting the attempt did not come dangerously close to commission of the crime, an attempt to commit a Class B felony shall be a Class C Felony and attempt to commit a Class C felony shall be a Class A misdemeanor"); Model Penal Code §5.05. |
||||||||||||||||||||||||||||||
| 61.
|
|
Model Penal Code § 2.13(1) ("A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting that offense by either: (a) making knowingly false representations designed to induce the belief that such conduct is not prohibited; or (b) employing methods of persuasion or inducement that create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it."); Final Report § 702(2) ("Entrapment occurs when a law enforcement agent induces the commission of an offense, using persuasion or other means likely to cause a normally law-abiding persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment."). 62.
|
|
E.g., Alaska Stat. Ann. § 11.81.450 (2018); N.H. Rev. Stat. Ann. § 626:5 (2016); N.J. Stat. Ann. § 2C:2-12 (2015); Wash. Rev. Code Ann. § 9A.16.070 (2105); Commonwealth v. Denton, 75 N.E.3d 589, 592 (Mass. 2017); People v. Fromuth, 206 Cal. Rptr.3d 83, 98-99 (Cal. App. 2016); State v. Hayes, 752 A.2d 16, 19 (Vt. 2000); State v. Babers, 514 S.W.2d 79, 82-83 (Iowa 1994). 63.
|
|
United States v. Peithman, 917 F.3d 635, 649 (8th Cir. 2019) (quoting United States v. Parker, 267 F.3d 839, 843 (8th Cir. 2001)); United States v. Votrobek, 847 F.3d 1335, 1344-45 (11th Cir. 2017); United States v. Lechner, 806 F.3d 869, 875 (6th Cir. 2015). Some courts articulate a more specific standard, e.g., United States v. Cox, 906 F.3d 1170, 1191 (10th Cir. 2018)) ("To win an entrapment-by-estoppel claim, a defendant criminally prosecuted for an offense must prove (1) that a government agent actively misled him about the state of the law defining the offense; (2) that the government agent was 'responsible for interpreting, administering, or enforcing the law defining the offense;' (3) that the defendant actually relied on the agent's misleading pronouncement in committing the offense; and (4) that the defendant's reliance was reasonable in light to the identity of the agent, the point of law misrepresented, and the substance of the misrepresentation." (quoting United States v. Hardridge, 369 F.3d 1188, 1192 (10th Cir. 2004))); United States v. Lynch, 903 F.3d 1061, 1076 (9th Cir. 2018) ("To establish the defense of entrapment by estoppel, a defendant has the burden to show: '(1) an authorized government official, empowered to render the claimed erroneous advice, (2) who was aware of all the relevant historical facts, (3) affirmatively told [the defendant] the proscribed conduct was permissible, (4) that [the defendant] relied on the false information, and (5) that [the] reliance was reasonable.'" (quoting United States v. Schafer, 625 F.3d 629, 637 (9th Cir. 2010))). 64.
|
|
Mathews v. United States, 485 U.S. 58, 63 (1988); United States v. James, 928 F.3d 247, 256 (3d Cir. 2019); United States v. Clarett, 907 F.3d 1100, 1102 (8th Cir. 2018); United States v. Dixon, 901 F.3d 1322, 1346 (11th Cir. 2018); United States v. Perillo, 897 F.3d 878, 885 (7th Cir. 2018). 65.
|
|
United States v. Cascella, 943 F.3d 1, 6 (1st Cir. 2019) ("'Entrapment is an affirmative defense.' To present this affirmative defense, a defendant must first carry the burden of production .…"(quoting United States v. Vasco, 564 F.3d 12, 18 (1st Cir. 2009))); United States v. Baker, 928 F.3d 291, 296 (3d Cir. 2019) ("'Under our jurisprudence, to make an entrapment defense a defendant must come forward with some evidence as to both inducement and non-predisposition.'" (quoting United States v. El-Gawli, 837 F.2d 142, 145 (3d Cir. 1988))); United States v. Young, 916 F.3d 368, 375 (4th Cir. 2019); United States v. Williamson, 903 F.3d 124, 132 (D.C. Cir. 2018); Dixon, 901 F.3d at 1346. 66.
|
|
Young, 916 F.3d at 375-76; Williamson, 903 F.3d at 132; Dixon, 901 F.3d at 1346. 67.
|
|
Cascella, 943 F.3d at 6 (quoting United States v. Diaz-Maldonado, 727 F.3d 130, 137 (1st Cir. 2013)); see also Baker, 928 F.3d at 296 ("Inducement is not 'mere solicitation' or 'merely opening an opportunity for a crime.' Rather, 'the defendant must show that law enforcement engaged in conduct that takes the form of persuasion, fraudulent representation, threats, coercive tactics, harassment, promises of reward or pleas based on need, sympathy or friendship.'" (quoting United States v. Dennis, 826 F.3d 683, 690 (3d Cir. 2016))); Williamson, 903 F.3d at 132. 68.
|
|
Cascella, 943 F.3d at 6-7 (citing United States v. Gendron, 18 F.3d 955, 961 (1st Cir. 2013)); United States v. Mayfield, 771 F.3d 417, 435 ("Inducement means more than mere government solicitation of the crime; the fact that the government agents initiated contact with the defendant, suggested the crime, or furnished the ordinary opportunity to commit it is insufficient to show inducement."). 69.
|
|
James, 928 F.3d at 256 ("To be inducement, the government's action must overpower the defendant. Cf. Groll [United States v. Groll, 992 F.2d 755, 759 (7th Cir. 1993)] (noting that 'three phone calls urging a defendant to buy cocaine after an initial refusal were not sufficient inducement' but that an informant calling a defendant every day for a month raised a colorable claim)."); United States v. Williamson, 903 F.3d 124, 132 (D.C. Cir. 2018) ("'The government's behavior amounts to inducement when it was such that a law-abiding citizen's will to obey the law could have been overborne.' A range of government conduct could qualify as inducement under that standard, including 'persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship.'"(quoting, inter alia, United States v. Sanchez, 88 F.3d 1234, 1249 (D.C. Cir. 1996))). 70.
|
|
Young, 916 F.3d at 376 (quoting Mathews, 485 U.S. at 63). 71.
|
|
United States v. Wenxia Man, 891 F.3d 1253, 1279 (11th Cir. 2018); United States v. Dennis, 826 F.3d 683, 694 (3d Cir. 2016) ("'Because of the subjective, fact-intensive nature of the predisposition inquiry, it may well be that the facts of a given case indicate that an individual defendant is predisposed to commit some crimes, but not others.'" (quoting United States v. Isnadin, 742 F.3d 1278, 1302 (11th Cir. 2014))). 72.
|
|
United States v. Hillard, 851 F.3d 768, 785 (7th Cir. 2017); United States v. Temkin, 797 F.3d 682, 691 (9th Cir. 2015); United States v. Mohamund, 843 F.3d 420, 432 (1st Cir. 2016); see also United States v. Tee, 881 F.3d 1258, 1263 (10th Cir. 2018) ("Predisposition may be shown by 'evidence of similar prior illegal acts or it may be inferred from defendant's desire to profit, his eagerness to participate in the transaction, his ready response to the government's inducement offer, or his demonstrated knowledge or experience in the criminal activity." (quoting United States v. Duran, 133 F.3d 1324, 1335 (10th Cir. 1998))). 73.
|
|
E.g., United States v. Barta, 776 F.3d 931, 937 (7th Cir. 2015) ("The FBI frequently emailed and called Barta, with no response from Barta. There were 'repeated attempts at persuasion.' The FBI invented false deadlines for Barta to commit to the deal and invented false problems. …The FBI significantly sweetened what would have already been an attractive deal to Bart and his co-defendants. … And the FBI pressed Barta … to make a deal that it had reason to believe Barta would be making mainly to benefit his less fortunate friend. … The presence of all these plus factors shows that the government induced Barta to commit a crime, one that the government concedes he had no predisposition to commit. That is enough to establish entrapment as a matter of law." (citations omitted)). 74.
|
|
Final Report § 1001(3); Model Penal Code § 5.05. 75.
|
|
Final Report § 1001(3) ("Criminal attempt is an offense of the same class as the offense attempted, except that (a) an attempt to commit a Class A felony shall be a Class B felony, and (b) whenever it is established by a preponderance of the evidence at sentencing that the conduct constituting the attempt did not come dangerously close to commission of the crime, an attempt to commit a Class B felony shall be a Class C Felony and attempt to commit a Class C felony shall be a Class A misdemeanor"); Model Penal Code § 5.05. |
E.g., Ala. Code §13A-4-2(d) (2006) ("An attempt is a: (1) Class A felony if the offense attempted is murder. (2) |
|
E.g., Del. Code Ann. tit.11 § |
|||||||||||||||||||||||||||||||
|
E.g., 21 U.S.C. § 846 |
|||||||||||||||||||||||||||||||
|
U.S.S.G. § 2X1.1(a). When imposing sentence for a violation of federal law, a court must begin by calculating the sentencing range recommended by the Guidelines for a particular case |
|||||||||||||||||||||||||||||||
|
U.S.S.G. § 2X1.1(b) (" |
|||||||||||||||||||||||||||||||
|
| |||||||||||||||||||||||||||||||
| 58. |
Sayre, Criminal Attempts, 41 Harvard Law Review 821, 838 n. 66 (1928)("Thus, it has been held that there cannot be a conviction for an attempt where the proof shows that the crime attempted was carried through to successful completion. Graham v. People, 181 Ill. 477, 55 N.E. 179 (1899); People v. Stanton, 106 Cal. 139, 39 Pac. 525 (1895); Regina v. Nicholls, 2 Cox C.C. 1847). Contra: State v. Shepard, 7 Conn. 54 (1828)"). States have sometimes crafted explicit rejections in order to escape such precedents, e.g., Idaho Code §18-305 ("Any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was perpetrated by such person in pursuance of such attempt."); La. Rev. Stat. Ann. §14:27[C]; Mont. Code Ann. §45-4-103(5)("Proof of the completed offense does not bar conviction for the attempt"). |
||||||||||||||||||||||||||||||
| 82.
|
|
Attempt, Black's Law Dictionary (10th ed. 2014). 83.
|
|
Rogers v. United States, 340 U.S. 367, 375 (1951) ("[A]t least two persons are required to constitute a conspiracy."); United States v. Leal, 921 F.3d 951, 959 (10th Cir. 2019); United States v. Camara, 908 F.3d 41, 46 (4th Cir. 2018); United States v. Wenxia Man, 891 F.3d 1253, 1265 (11th Cir. 2018). 84.
|
|
See, e.g., 18 U.S.C. § 1349 ("Any person who attempts … to commit any offense under this chapter [relating to fraud] …." (emphasis added)); 21 U.S.C. § 846 ("Any person who attempts … to commit any offense under this subchapter [relating to controlled substances] .…" (emphasis added)); 18 U.S.C. § 1030(b) ("Whoever … attempts to commit an offense under this subsection (a)(1) of this section [relating to computer fraud and abuse] …." (emphasis added)). 85.
|
|
Attempt: United States v. Anderson, 932 F.3d 344, 350 (5th Cir. 2019) ("To be guilty of an attempt, the defendant (1) must have been acting with the … culpability otherwise required for the commission of the crime which he is charged with attempting." (quoting United States v. Salazar, 958 F.2d 1293 (5th Cir. 1992))); United States v. Stahlman, 934 F.3d 1199, 1225 (11th Cir. 2019); United States v. Rang, 919 F.3d 113, 120 (1st Cir. 2019). Conspiracy: Ocasio, 136 S. Ct. at 1429 ("A defendant must merely reach an agreement with the specific intent that the underlying crime be committed by some member of the conspiracy." (internal citation omitted)); Anderson, 932 F.3d at 350; United States v. Espinoza-Valdez, 889 F.3d 654, 657 (9th Cir. 2018); United States v. Gorski, 880 F.3d 27, 31-32 (1st Cir. 2018). |
United States v. | ||||||||||||||||||||||
| 87.
|
Callanan v. United States, 364 U.S. 587, 597 (1961); see also Salinas, 522 U.S. at 65; |
|
|||||||||||||||||||||||||||||
|
United States v. | |||||||||||||||||||||||||||||||
| 62. |
United States v. Pumpkin Seed, 575 F.3d 552, 562 (8th Cir. 2009); United States v. D'Amico, 496 F.3d 95, 99-100 (1st Cir. 2007); United States v. Mitchell, 484 F.3d 762, 773 (5th Cir. 2007). |
||||||||||||||||||||||||||||||
| 63. |
Other examples include 18 U.S.C. 1594 (human trafficking) and 21 U.S.C. 846 (controlled substances). |
||||||||||||||||||||||||||||||
| 64. |
18 U.S.C. 1344 ("Whoever knowingly executes, or attempts to execute, a scheme or artifice—(1) to defraud a financial institution ... shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both"); see also 18 U.S.C. 1347 (health care fraud) and 18 U.S.C. 1348 (securities and commodities fraud). |
||||||||||||||||||||||||||||||
| 65. |
The issue is conceptually difficult and one of proximity to the substantive offense, such as defrauding a bank. A court might conclude, for example, that, without more, simply studying the auditing procedures of a bank, would constitute no more than mere preparation for the substantive crime of defrauding the bank. On the other hand, it might conclude that such study would constitute a substantial step towards endeavoring (attempting) to attempt to defraud the bank. For a general discussion of judicial treatment of "attempt to attempt," "conspiracy to attempt," and "attempt to conspire" cases in both state and federal courts see, Robbins, Double Inchoate Crimes, 26 Harvard Journal on Legislation 1 (1989). |
||||||||||||||||||||||||||||||
| 66. |
Final Report, §1005(1)("An offense defined in sections 1001 to 1004 [(criminal attempt, facilitation, solicitation, and conspiracy)] shall not apply to another offense defined in sections 1001 to 1004"); Model Penal Code §5.04(3)("A person may not be convicted of more than one offense defined by this Article for conduct designed to commit or to culminate in the commission of the same crime"). |
||||||||||||||||||||||||||||||
| 67. |
E.g., Me. Rev. Stat. Ann. tit. 17-A §154[1]("It shall not be a crime to conspire to commit, or to attempt, or solicit, any crime set forth in this chapter [relating to the crimes of general application: attempt, conspiracy, and solicitation]"); N.D. Cent. Code §12.1-06-05; Ore. Rev. Stat. Ann. §161.485. |
||||||||||||||||||||||||||||||
| 89.
|
|
Conspiracy: United States v. Jimenez Recio, 537 U.S. 270, 274 (2003); United States v. DeKelaita, 875 F.3d 855, 859 (7th Cir. 2017); United States v. Salahuddin, 765 F.3d 329, 341 (3d Cir. 2014). Attempt: United States v. Nguyen, 829 F.3d 907, 917 (8th Cir. 2016); United States v. Iribe, 564 F.3d 1155, 1161 (9th Cir. 2009). 90.
|
|
Smith v. United States, 568 U.S. 106, 110-12 (2013); United States v. Leoner-Aguirre, 939 F.3 310, 318 (1st Cir. 2019) ("To withdraw, a conspirator must act affirmatively either to defeat or disavow the purpose of the conspiracy." (internal citations omitted)); United States. Lebedev, 932 F.3d 40, 51 (2d Cir. 2019). 91.
|
|
United States v. Patterson, 877 F.3d 419, 428 (1st Cir. 2017) ("[E]vidence of abandonment does not, in and of itself, suffice to negate evidence of attempt."); United States v. Temkin, 797 F.3d 682, 690 (9th Cir. 2015) ("[A]bandonment is not a defense when an attempt, as here, has proceeded beyond preparation."). 92.
|
|
Conspiracy: United States v. James, 928 F.3d 247, 256-57 (3d Cir. 2019) ("The defense of entrapment requires proof of two elements: [1] government inducement of the crime, and [2] a lack of predisposition on the part of the defendant to engage in the criminal conduct." (internal citations omitted)); United States v. Young, 916 F.3d 368, 376 (4th Cir. 2019); United States v. Wenxia Man, 891 F.3d 1253, 1266 (11th Cir. 2018) ("[S]heer impossibility is no defense." (internal citations omitted)); United States v. Banker, 876 F.3d 530, (4th Cir. 2017) ("[F]actual impossibility is not a defense." (internal citations omitted)). Attempt: United States v. Strubberg, 929 F.3d 969, 976 (8th Cir. 2019) ("A valid entrapment defense has two related elements: government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in criminal conduct." (internal citations omitted)); United States v. Rutgerson, 822 F.3d 1223, 1234 (11th Cir. 2016); United States v. Saldaña-Rivera, 914 F.3d 721, 725 (1st Cir. 2019) ("[W]e have rejected factual impossibility as a defense to an attempt crime .…" (internal citations omitted)); United States v. Suarez, 893 F.3d 1339, 1335 (11th Cir. 2018). |
United States v. |
||||||||||||||||||||||
|
18 U.S.C. | |||||||||||||||||||||||||||||||
| 70. |
18 U.S.C. 2 ("(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal"). |
||||||||||||||||||||||||||||||
| 71. |
18 U.S.C. 371. |
||||||||||||||||||||||||||||||
| 72. |
United States v. Rodman, 776 F.3d 638, 642 (9th Cir. 2015)("We have construed the language in 18 U.S.C. §371 to include obstructing the operation of any government agency by any deceit, craft or trickery, or at least by means that are dishonest. We have also clarified that a conspiracy need not deprive the government of property, involve any detrimental reliance by the government, or involve independently illegal goals or means. Instead, the elements of a conspiracy under 18 U.S.C. §371 are (1) defendant entered into an agreement (2) to obstruct a lawful function of the government (3) by deceitful or dishonest means and (4) at least one overt act in furtherance of the conspiracy"); United States v. Mendez, 528 F.3d 811, 815 (11th Cir. 2008); United States v. Douglas, 398 F.3d 407, 412 (6th Cir. 2005); United States v. Jackson, 33 F.3d 866, 871-72 (7th Cir. 1994). |
||||||||||||||||||||||||||||||
| 73. |
18 U.S.C. 201(b). |
||||||||||||||||||||||||||||||
| 95.
|
|
18 U.S.C. § 373(a); Gillis, 938 F.3d at 1196-1201 (holding that kidnapping under 18 U.S.C. §120(a) is not a crime of violence for purposes of § 373(a) because it proscribes both conduct which is violent and that which is not); United States v. Korab, 893 F.2d 212, 215 (9th Cir. 1989) ("Section 373(a) encompasses only solicitations of federal felonies"). 96.
|
|
United States v. Hale, 448 F.3d 971, 983 (7th Cir. 2006) (citing United States v. McNeil, 887 F.2d 448, 450 (3d Cir. 1989)); see also Dvorkin, 799 F.3d at 867 ("Evidence sufficient to strongly corroborate a defendant's intent includes, but is not limited to, evidence showing that the defendant: (1) offered or promised payment or some other benefit to the person solicited; (2) threatened to punish or harm the solicitee for failing to commit the offense; (3) repeatedly solicited the commission of the offense or expressly stated his seriousness; (4) knew or believed that the person solicited had previously committed a similar offense; or (5) acquire weapons, tools or information, or made other preparations, suited for use by the solicitee."). 97.
|
|
Korab, 893 F.3d at 213. 98.
|
|
18 U.S.C. § 373(b) ("It is an affirmative defense to a prosecution under this section that, under circumstances manifesting a voluntary and complete renunciation of his criminal intent, the defendant prevented the commission of the crime solicited. A renunciation is not 'voluntary and complete' if it is motivated in whole or in part by a decision to postpone the commission of the crime until another time or to substitute another victim or another but similar objective. If the defendant raises the affirmative defense at trial, the defendant has the burden of proving the defense by a preponderance of the evidence."); see also Dvorkin, 799 F.3d at 880. 99.
|
|
18 U.S.C. § 373(c) ("It is not a defense to a prosecution under this section that the person solicited could not be convicted of the crime because he lacked the state of mind required for its commission, because he was incompetent or irresponsible, or because he is immune from prosecution or is not subject to prosecution."). 100.
|
|
18 U.S.C. § 2; United States v. Williams, 941 F.3d 234, 236-37 (6th Cir. 2019) ("Section 2 'does not create a separate crime, but rather abolishes the common law distinction between the principals and accessories.'" (quoting United States v. Superior Growers Supply, Inc., 982 F.2d 173, 177-78 (6th Cir. 1992))); United States v. Diaz, 941 F.3d 729, 742 (5th Cir. 2019) ("'Aiding and abetting is not a separate offense, but it is an alternative charge in every indictment, whether explicit or implicit.'" (quoting United States v. Turner, 674 F.3d 420, 442 (5th Cir. 2012))); United States v. Cottier, 908 F.3d 1141, 1147 (8th Cir. 2018). 101.
|
|
18 U.S.C. § 2(a). 102.
|
Rosemond v. |
United States v. Peleti, 576 F.3d 377, 382-83 (7th Cir. 2009); United States v. Valle, 538 F.3d 341, 346-47 (5th Cir. 2008); United States v. Quinn, 359 F.3d 666, 673 (4th Cir. 2004). |
|||||||||||||||
| 75. |
18 U.S.C. 201(b)("Whoever—(1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official ... with intent—(A) to influence any official act; or ... (2) being a public official ... directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for: (A) being influenced in the performance of any official act ... shall be fined under this title ... or imprisoned for not more than fifteen years, or both"). |
||||||||||||||||||||||||||||||
| 76. |
See, e.g., United States v. Turner, 548 F.3d 1094, 1096 (D.C.Cir. 2008); United States v. Wantuck, 525 F.3d 505, 510-11 (7th Cir. 2008); United States v. Coker, 514 F.3d 562, 566 (6th Cir. 2008). |
||||||||||||||||||||||||||||||
| 77. |
18 U.S.C. 2(a). |
||||||||||||||||||||||||||||||
| 78. |
| ||||||||||||||||||||||||||||||
|
United States v. Villarreal, 707 F.3d 942, 959 ( Francis Bowes Sayre, Criminal Attempts, 41 Harv. L. Rev. 821, 838 n.66 (1928) ("Thus, it has been held that there cannot be a conviction for an attempt where the proof shows that the crime attempted was carried through to successful completion. Graham v. People, 181 Ill. 477, 55 N.E. 179 (1899); People v. Stanton, 106 Cal. 139, 39 Pac. 525 (1895); Regina v. Nicholls, 2 Cox C.C. (1847). Contra: State v. Shepard, 7 Conn. 54 (1828)."). States have sometimes crafted explicit rejections in order to escape such precedents. E.g., Idaho Code § 18-305 (2016) ("Any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was perpetrated by such person in pursuance of such attempt."); La. Rev. Stat. Ann. § 14:27[C] (2016); Mont. Code Ann. § 45-4-103(5) (2017) ("Proof of the completed offense does not bar conviction for the attempt."). United States v. Malasanos, 472 F.2d 642, 643 (7th Cir. 1973); United States v. York, 578 F.2d 1036, 1040 (5th Cir. 1978) ("Proof that a crime had been completed does not absolve the defendants of the attempt."). United States v. Pires, 642 F.3d 1, 6 (1st Cir. 2011); United States v. Manzo, 636 F.3d 56, 66 (3d Cir. 2011). Manzo, 636 F.3d at 58, 68-69 (Manzo, a candidate for elective office, had been charged with attempted extortion under color of official right based on official actions he would take or omit if elected. The court observed that, "[a] Hobbs Act inchoate offense prohibits a person acting 'under color of official right' from attempting ... to use his or her public office in exchange for payments. It does not prohibit a private person who is a candidate from attempting ... to use a future public office to extort money …. To sustain an 'under color of official right' Hobbs Act charge here would create a 'legal alchemy with the power to transform any gap in the facts into a cohesive extortion charge.'"). 18 U.S.C. §§ 2423(a), 2422(b). United States v. Isabella, 918 F.3d 816, 831 (10th Cir. 2019) ("In Faust, we explained that '[s]ection 2422(b) requires only that the defendant intended to entice a minor, not that the defendant intend to commit the underlying sexual act.'" (quoting United States v. Faust, 795 F.3d 1243, 1249 (10th Cir. 2015))). |