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Attempt 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.
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 The U.S. 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 be 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.
Completion of the underlying offense is no defense to a charge of attempt, but a defendant may not be convicted of both attempt and the attempted underlying offense.
Introduction
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.21 The same cannot be said of federal law. There is no generally applicable federal attempt statute.32 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.43 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 bribeSolicitation of a bribe and possession of counterfeiting equipment are two examples of these attempt-like crimes.54 Occasionally, Congress has enjoinedproscribed attempts to commit these attempt-like substantive offenses, as in the case of attempted possession of a controlled substance with intent to distribute.6
5
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.7state law.6 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.9century.8 Before then, attempt had evolved as part of the common law development of a few substantive offenses.109 The vagaries of these individual threads frustrated early efforts to weave them into a cohesive body of law.1110 At mid-20th Centurycentury, the Model Penal Code suggested a basic framework that has greatly influenced the development of both state and federal law.1211 The Model Penal Code grouped attempt with conspiracy and solicitation as "inchoate" crimes of general application.1312 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.1413 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.1514 The National Commission recommended a revision of titleTitle 18 of the United StatesU.S. Code that included a series of "offenses of general applicability"—attempt, facilitation, solicitation, conspiracy, and regulatory offenses.16
15
Despite efforts that persisted for more than a decade, Congress never enacted the National Commission's recommended revision of titleTitle 18.16 And to this day, the "federal criminal code contains no standalone attempt statute."17 Congress has 18.17 It did, however, continuecontinued to outlaw a growing number of attempts to commit specific federal offenses. In doing so, it rarely did more than outlaw an attempt to commit a particular substantive crime and set its punishment. Beyond that, development of the federal law of attempt has been the work of the federal courts.
Attempt may once have required little more than an evil heart.18 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."19 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.20
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."21 Rather than mention the type of conduct that might constitute a substantial step, the Commission borrowed 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."22
Most of the states follow the same path and define attempt as intent coupled with an overt act or substantial step towardstoward the completion of the substantive offense.23 Only rarely does a state include examples of substantial step conduct.24
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.25
The courts seem to have encountered little difficulty in identifying the requisite intent standard. They rarely do more than note that the defendant must be shown to have intended to commit the underlying offense.26 What constitutes a substantial step is a little more difficult to discern.27 It is said that a substantial step is more than mere preparation.28 A substantial step is action strongly or unequivocally corroborative of the individual's intent to commit the underlying offense.29 It is action which, if uninterrupted, will result in the commission of that offense,30 although it need not be the penultimate act necessary for completion of the underlying offense.31 Furthermore, the point at which preliminary action becomes a substantial step is fact -specific;32 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.32
33
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.3334 The greater the harm of the completed offense, the farther from completion a substantial step will first be seen.
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,3435 materially assisting a terrorist offense,3536 enticing a child to engage in sexual activity,3637 and possession of controlled substances with intent to distribute.3738 Federal law also condemns attempts to commit some, but not all, of these second -degree substantive offenses.3839 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.3940 The penalties for attempting to commit them are the same as the penalty to commit them.40
41
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 chapterChapter 63 of titleTitle 18 of the United StatesU.S. Code "shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt."4142 Within chapter 63 are sections that make it a crime to attempt to commit bank fraud, health care fraud, or securities fraud.4243 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 under federal law have often offered one of three defenses—impossibility, abandonment, and entrapment. RarelyThey have theyrarely prevailed. The defense of impossibility is a defense of mistake, either a mistake of law or a mistake of fact. Legal impossibility exists when "the actions which the defendant performs or sets in motion, even if fully carried out as he desires, would not constitute a crime. The traditional view is that legal impossibility is a defense to the charge of attempt—that is, if the completed offense would not be a crime, neither is a prosecution for attempt permitted."44
45
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."4546 Since the completed offense would be a crime if circumstances were as the defendant believed them to be, prosecution for attempt is traditionally permitted.46
47
Yet, as the courts have observed, "the distinction between legal impossibility and factual impossibility [is] elusive."4748 Moreover, "the distinction ... is largely . . is essentially a matter of semantics, for every case of legal impossibility can reasonably be characterized as a factual impossibility."48
49
The Model Penal Code defined 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."4950 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."5051 Several states have also specifically refused to recognize an impossibility defense of any kind.51
52
The federal courts have been a bit more cautious. They have sometimes conceded the possible vitality of legal impossibility as a defense,5253 but generallyother times have judged the cases before them to involve no more than unavailing factual impossibility.5354 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.54
The Model Penal Code recognized an abandonment or renunciation defense.5556 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.5657 The revised federal criminal code recommended by the National Commission contained similar provisions.5758 Some states recognize an abandonment or renunciation defense;5859 the federal courts do not. 60
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,5961 they have declined to recognize a comparable defense to a charge of attempt.60
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.6163 Most states recognize the defense in one form or another either by statute or under common law.6264 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
65
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."6466 The defendant must offer evidence of government inducement,65 67 after which the government must prove predisposition of the defendant beyond a reasonable doubt.66
68
Government inducement for purposes of the entrapment defense consists of government overreaching involving "'intimidation, threats, dogged insistence,' or 'excessive pressure.'"69"67 Offering a defendant the opportunity to commit a crime, without more, does not qualify as government overreaching;6870 some courts have described the necessary degree of inducement as overpowering or overbearing.69
71
"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.'"7072 Whether the defendant was an "unwary innocent" or, instead, an "unwary criminal" turns on the facts in a particular case.7173 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
74
Successful claims are rare, but not unknown.73
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.7476 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.7577 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;7678 others set the penalty at the same level as the crime attempted, again with exceptions for particular offenses in some states.77
79
Most federal attempt crimes carry the same penalties as the substantive offense.7880 The Sentencing Guidelines, which greatly influence federal sentencing beneath the maximum penalties set by statute, reflect the equivalent sentencing prospective.7981 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.80
Federal
The federal law of attempt brushes shouldersis associated with several other areas of federal criminal law relating to conspiracy, aiding and abetting, and predicate offenses.
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.8183 Attempt is an endeavor to commit another crime.8284 Conspiracy requires two or more offenders;8385 attempt needs but one.8486 Intent to commit some target or predicate offense or misconduct satisfies the mens rea element in both cases.8587 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.8688 Conspiracy and its predicate offense, however, exist as separate crimes that may be punished separately,8789 while attempt constitutes only a lesser-included component of its predicate offense.8890 Neither attempt nor conspiracy requires the completion of a predicate offense before prosecution.8991 Conspiracy admits a narrow defense of withdrawal;9092 attempt does not.9193 Neither offers anything but the most remote prospect of an impossibility94 or entrapment defense.92 95 The courts have affirmed convictions for both conspiracy and attempt to commit the same underlying predicate offense.93
96
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.9497 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."9598 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."9699 As is the case of attempt, "[a]n individual cannot be guilty of both the solicitation of a crime and the substantive crime."97100 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.98101 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.100103 Anyone who aids, abets, counsels, commands, induces, or procures the commission of a federal crime is as guilty as if he committed it himself.101104 Aiding and abetting requires proof of intentional assistance in the commission of a crime.102105 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.104107 On the other hand, some 19th Centurycentury courts held that a defendant could not be convicted of attempt if the evidence indicated that he had in fact committed the predicate offense.105108 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
109
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,107110 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
111
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 towardstoward 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.109112 To convict a defendant of attempt, the government must establish an intent and substantial step towardstoward enticement, but need not establish that the defendant otherwise attempted to engage in sexual activity with a child.110
Ala. Code §§ 13A §§ 13a-4-2, 13A13aA-4-5 (2006);111114 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, 665 664 (2010); Colo. Rev. Stat. Ann. § 18-2-101 (2018); Conn. Gen. Stat. Ann. §§ 53a-49 to 53a-51 (2012); Del. Code Ann. tit.11 11, §§ 531, 532, 541 (2015); Fla. Stat. Ann. § 777.04 (2017); Ga. Code Ann. §§ 16-4-1 to 16-4-6 (2019); HawaiiHaw. Rev. Stat. §§ 705-500 to 705-502, 705-530 to 705-531 (2016); Idaho Code Ann. §§ 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, 152-a, 154 (2006); Md. Code Ann., Crim. Law § 1-201 (2012); Mass. Gen. Laws Ann. ch. 274, § 6 (2014); Mich. Comp. Laws Ann. §§ 750.91, 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; 18 Pa. Cons. Stat.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, 22-4-3 (2017); Tenn. Code Ann. §§ 39-12-101, 104 to 109107 (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 Ann. §§ 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
| 1. |
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. |
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| 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 | |||||||
United States v. Sineneng-Smith, 910 F.3d 461, 482 (9th Cir. 2018), vacated, 590 U.S. 371 (2020); United States v. Hite, 769 F.3d 1154, 1162 (D.C. Cir. 2014). | ||||||||
18 U.S.C. § 1113 | ||||||||
18 U.S.C. §§ | ||||||||
21 U.S.C. §§ 846, 881. | ||||||||
E.g., H.R. 1823 (112th Cong.); H.R. 1772 (111th Cong.); H.R. 4128 (110th Cong.); S. 735 (107th Cong.); S. 413 (106th Cong.); S. 171 (105th Cong.). | ||||||||
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Francis Bowes Sayre, Criminal Attempts, 41 Harv. L. Rev. 821, 821 (1928) ("But the present generalized doctrine that attempts to commit crimes are as such and in themselves criminal is of comparatively late origin. Nothing of such a doctrine is to be found in the treatises on criminal law prior to the nineteenth century, in spite of the fact that records of cases going back to early times show occasional convictions where the defendant failed to complete the crime attempted."). | ||||||||
The offenses that a defendant attempts to commit are referred to alternatively as substantive, underlying, or predicate offenses. | ||||||||
| 11. | The first federal criminal statutes included proscriptions against the attempted commission of a few specific offenses, such as attempted piracy. Crimes Act of 1790, 1 Stat. 115 § 9.
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| 12. | quoting Hicks v. Commonwealth, 9 S.E. 1024, 1025 (Va. 1889))).
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"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." Model Penal Code, | ||||||||
For a discussion of some of the diversity of state laws, see Michael T. Cahill, Attempt by Omission, 94 Iowa L. Rev. 1207 (2009). | ||||||||
| 15. |
| |||||||
Final Report of the National Commission on Reform of Federal Criminal Laws: A Proposed New Federal Criminal Code (Title 18, United States Code), Ch. 10 (1971) [hereinafter Final Report]. | ||||||||
Efforts to enact to the National Commission's recommendations effectively ended on April 27, 1982, when the closure motion on S. 1630 (97th Cong. 1981), which would have enacted an amended version of the Commission's recommendations, failed in the Senate. 128 Cong. Rec. 7777 (1982). | ||||||||
| 18. | United States v. States, 72 F.4th 778, 787 (7th Cir. 2023). | |||||||
| 19. |
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. | |||||||
| 20. | Id. § 5.01(2). | |||||||
| 21. | Final Report § 1001(1). | |||||||
| 22. |
Id. | |||||||
| 23. |
E.g., Ala. Code § 13A-4-2 (2006) ("(a) A person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act towards the commission of | |||||||
| . . ."). 24. |
E.g., Conn. Gen. Stat. | |||||||
| 25. |
United States v. Resendiz-Ponce, 549 U.S. 102, 107 (2007); see also United States v. | |||||||
| 26. |
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. Stahlman, 934 F.3d 1199, 1225 (11th Cir. 2019); Rang, 919 F.3d at 120; Garner, 915 F.3d at 170; United States v. Bryant, 913 F.3d 783, 787 (8th Cir. 2019); Conley, 875 F.3d at 398. |
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| 27. | The cases do little more than list the first entry from the boilerplate formula of the offense's elements, e.g., Fulks, 120 F.4th at 156 ("Attempt requires (1) an intent to commit the crime. . ."); United States v. Al Jaberi, 97 F.4th 1310, 1326 (11th Cir. 2024); United States v. Wilder, 87 F.4th 816, 820 (6th Cir. 2023). | |||||||
| 28. |
Faulkner, 950 F.3d at 676; Pugh, 945 F.3d at 20; Strubberg, 929 F.3d at 974; Clarke, 842 F.3d at 297; United States v. Howard, 766 F.3d 414, 419 (5th Cir. 2014); United States v. Muratovic, 719 F.3d 809, 815 (7th Cir. 2013). |
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| 29. | Flechs, 98 F.4th at 1244; Rider, 94 F.4th at 452; Wilder, 87 F.4th at 820; United States v. Robinson, 87 F.4th 658, 669 (5th Cir. 2023); United States v. Dennis, 81 F.4th 764, 768 (8th Cir. 2023). | |||||||
| 30. |
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| 31. |
| |||||||
| 32. | United States v. States, 72 F.4th 786, 789 n.7 (7th Cir.), reh'g denied, No. 22-1477, 2023 WL 5432933 (7th Cir. Aug. 23, 2023). | |||||||
| 33. | (first quoting United States v. Coplon, 185 F.2d 629, 633 (2d Cir.1950) (L. Hand, J.); and then quoting United States v. Ivic, 700 F.2d 51, 66 (2d Cir. 1983), abrogated by Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249 (1994)).
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18 U.S.C. § 474 ("Whoever makes | ||||||||
Id. § 2339A ("Whoever provides material | ||||||||
Id. § 2422(b) ("Whoever | ||||||||
| 37. | .
21 U.S.C. § 841(a)(1) ("[I]t shall be unlawful for any person knowingly | |||||||
E.g., 18 U.S.C. § | ||||||||
| 39. | . . .").
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18 U.S.C. § | ||||||||
Other examples include 18 U.S.C. § 1594 (human trafficking) and 21 U.S.C. § 846 (controlled substances). | ||||||||
18 U.S.C. § 1344 ("Whoever knowingly executes, or attempts to execute, a scheme or artifice— (1) to defraud a financial institution . | ||||||||
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 Ira Robbins, Double Inchoate Crimes, 26 Harv. J. | ||||||||
| 44. | United States v. Ballinger, 395 F.3d 1218, | |||||||
United States v. Rehak, 589 F.3d 965, 971 (8th Cir. 2009) | ||||||||
| 46. | (quoting United States v. | |||||||
Manzo, 636 F.3d at 67 | ||||||||
| 48. |
United States v. Tykarsky, 446 F.3d 458, 465-66 (3d Cir. 2006). |
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| 49. |
Model Penal Code § 5.01(1)(a). |
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| 50. |
Final Report § 1001(1). |
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| 51. | Tykarsky, 446 F.3d at 465–66 (quoting United States v. Hsu, 155 F.3d 189, 199 (3d Cir. 1998)). Model Penal Code § 5.01(1)(a). Final Report § 1001(1). | |||||||
United States v. Mehanna, 735 F.3d 32, 52 (1st Cir. 2013) ("[L]egal impossibility exists when a defendant sets out to achieve an objective which, even if achieved as envisioned, will not constitute a crime."); Manzo, 636 F.3d at 67 n.10 ("[L]egal impossibility can sometimes be a defense to a crime." (quoting United States v. Dixon, 449 F.3d 194, 202 n. 2 (1st Cir.2006))); United States v. Ballinger, 395 F.3d 1218, 1238 n.8 (11th Cir. 2005) (en banc) ("The traditional view is that legal impossibility is a defense to the charge of attempt."); United States v. Joiner, 418 F.3d 863, 869 (8th Cir. 2005) ("Even if we assume arguendo, legal impossibility is a defense."); but see United States v. Yang, 281 F.3d 534, 542 (6th Cir. 2002) ("The court [in | ||||||||
United States v. Carter, 15 F.4th 26, 37 (1st Cir. 2021) ("[T]he District Court explained that in its view, 'if the FDA, even if mistakenly, disavowed a legal right to regulate compounding pharmacies like NECC, and if the evidence at trial showed that the FDA abstained from regulating NECC as a result of its internal determination of its own jurisdiction, a legal impossibility defense would plainly be available.'") (quoting United States v. Conigliaro, 384 F. Supp. 3d 145, 153 (D. Mass. 2019)); United States v | ||||||||
Tykarsky, 446 F.3d at 466 ("We, however, find it unnecessary to resolve this thorny semantical [impossibility] question here . . . | ||||||||
Model Penal Code § 5.01(4) ("When | ||||||||
Id. ("[R]enunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, 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 make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is 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."). | ||||||||
Final Report § 1005(3)(a), (c). | ||||||||
E.g., Minn. Stat. | ||||||||
United States v. | ||||||||
| 60. |
| |||||||
| 61. |
United States v. Jimenez, 96 F4.th 317 325 (2d Cir. 2024) ("[W]ithdrawal from a conspiracy is an affirmative defense.") (alteration in original) (quoting United States v. Hamilton, 538 F.3d 162, 173 (2d Cir. 2008); United States v. Brumfield, 89 F.4th 506, 523 (5th Cir. 2023), cert. denied, 145 S. Ct. 244 (2024); United States v. Ravenell, 66 F.4th 472, 482 (4th Cir. 2023)), cert. denied, 144 S. Ct. 1344 (2024) (mem.); United States v. Mejia, 55 F.4th 1, 10 (1st Cir. 2022). Again: United States v. Alebbini, 979 F.3d 537, 545 (6th Cir. 2020); United States v. Temkin, 797 F.3d 682, 690 (9th Cir. 2015); United States v. Young, 613 F.3d 735, 745 (8th Cir. 2010). | |||||||
E.g., Alaska Stat. | ||||||||
United States v. | ||||||||
Mathews v. United States, 485 U.S. 58, 63 (1988); United States v. | ||||||||
| 65. | Sewell, 103 F.4th 1292, 1294 (7th Cir. 2024).
| |||||||
| 66. | United States v. Dixon, 901 F.3d 1322, 1346 (6th Cir. 2023).
| |||||||
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. | ||||||||
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 (7th Cir. 2014) ("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. |
| |||||||
Young, 916 F.3d at 376 (quoting Mathews, 485 U.S. at 63). | ||||||||
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))). | ||||||||
United States v. | ||||||||
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 . . . | ||||||||
| 74. | quoting Mayfield, 771 F.3d 417, 435)).
| |||||||
Final Report § 1001(3) ("Criminal attempt is an offense of the same class as the offense attempted, except that (a) | ||||||||
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 § 531 (2015) ("Attempt to commit a crime is an offense of the same grade and degree as the most serious offense which the accused is found guilty of attempting."); Ind. Code | ||||||||
E.g., 21 U.S.C. § 846 (attempted drug offenses); 18 U.S.C. §§ 32(a) (attempted destruction of aircraft or their facilities), id. § 1594(a) (attempts to commit certain human trafficking offenses). In many instances, attempt is interwoven with the elements of the underlying offense. E.g., id. § | ||||||||
U.S. | ||||||||
| ||||||||
Ocasio v. United States, | ||||||||
| 82. | Muñoz-Martinez, 79 F.4th 44, 53 (1st Cir. 2023); United States v. Fallon, 61 F.4th 95, 115–16 (3d Cir. 2023).
| |||||||
Rogers v. United States, 340 U.S. 367, 375 (1951) ("[A]t least two persons are required to constitute a conspiracy."); United States v. | ||||||||
| 84. |
| |||||||
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 | ||||||||
United States v. Resendiz-Ponce, 549 U.S. 102, 107 (2007) ("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, by a substantial step towards a completion of the underlying substantive offense.); Stahlman, 934 F.3d at 1225; United States v. Bryant, 913 F.3d 783, 786 (8th Cir. 2019). The general federal conspiracy statute contains an overt act requirement. 18 U.S.C. § 371 ("If two or more persons conspire | ||||||||
Callanan v. United States, 364 U.S. 587, 597 (1961); see also Salinas, 522 U.S. at 65; United States v. Martinez, 921 F.3d 452, 471 (5th Cir. 2019); United States v. George, 886 F.3d 31, 41 (1st Cir. 2018). | ||||||||
United States v. Rivera-Relle, 333 F.3d 914, 921-22 n.11 (9th Cir. 2013) ("Unlike conspiracy, the prosecution may not obtain convictions for both the completed offense and the attempt if the attempt has in fact been completed. The attempt is an offense included in the completed crime, and therefore, cannot support a separate conviction and sentence."). | ||||||||
Conspiracy: United States v. Jimenez Recio, 537 U.S. 270, 274 (2003); United States v. | ||||||||
| 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. |
| |||||||
| 92. | '" (quoting United States v. Bussey, 507 F.2d 1096, 1098 (9th Cir. 1974)).
| |||||||
United States v. | ||||||||
| 94. | United States v. House, 120 F.4th 1313, 1315 (7th Cir. 2024) (conspiracy to possess and attempted possession of marijuana); Fernandez v. United States, 114 F.4th 1170, 1172 (11th Cir. 2024) (conspiracy to violate and attempt to violate the Hobbs Act); United States v. Xu, 114 F.4th 829, 836 (6th Cir. 2024) (conspiracy to and attempt to steal trade secrets), reh'g denied, No. 22-4020 (6th Cir. Oct. 7, 2024). | |||||||
| 95. | ; e.g., United States v. Linehan, 56 F.4th 693, 698–99 (9th Cir. 2022), cert. denied, 144 S. Ct. 209 (2023) (mem.).
| |||||||
| 96. | ; United States v. Doggart, 947 F.3d 879, 883, 887 (6th Cir. 2020) (Section 373 does not cover solicitations to burn down a mosque in violation of the federal arson statute,18 U.S.C. § 844(i) (in the absence of support for § 844(i)'s jurisdictional element (interstate commerce)); but it does cover solicitations to burn down a mosque in violation of 18 U.S.C. § 247 (destroying religious property).
| |||||||
| 97. |
Korab, 893 F.3d at 213. |
|||||||
| 98. | '" (quoting United States v. White, 698 F.3d 1005, 1015 (7th Cir. 2012) (per curiam)).
Korab, 893 F.2d at 213. | |||||||
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."). | ||||||||
18 U.S.C. § 2; United States v. | ||||||||
| 101. |
18 U.S.C. § 2(a). |
|||||||
| 102. | Hill, 63 F.4th 335, 363 (5th Cir. 2023) ("Title 18 U.S.C. § 2 does not establish a separate crime of 'aiding and abetting,' United States v. Pearson, 667 F.2d 12, 13 (5th Cir. Unit B 1982); instead aiding and abetting 'is simply a different way of proving liability for the same activity criminalized elsewhere even if the aider and abettor did not himself commit all elements of the substantive offense,'" United States v. Rabhan, 540 F.3d 344, 348 n.15 (5th Cir. 2008); Young v. United States, 22 F.4th 1115, 1122 (9th Cir. 2022); United States v. Williams, 941 F.3d 234, 236-37 (6th Cir. 2019) (per curiam) ("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. Cottier, 908 F.3d 1141, 1147 (8th Cir. 2018).
18 U.S.C. § 2(a). | |||||||
| 103. |
| |||||||
| 104. |
| |||||||
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." (citing 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. 182 (1847). Contra | ||||||||
United States v. Malasanos, 472 F.2d 642, 643 (7th Cir. 1973) (per curium); 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 | ||||||||
| 109. | Manzo, 636 F.3d at 69 (quoting United States v. Manzo, 714 F. Supp. 2d 486, 497 (D.N.J. 2010), aff'd, 646 F.3d 56 (3d Cir. 2011)).
18 U.S.C. §§ 2423(a), 2422(b). | |||||||
| 110. | 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 | |||||||
| 111. | , cert. denied, 144 S. Ct. 514 (2023) (mem.); United States v. York, 48 F.4th 494, 500 (7th Cir. 2022); United States v. McCarron, 30 F.4th 1157, 1162 (9th Cir. 2022).
|