Attempt: An Abridged Overview of Federal
Criminal Law
Charles Doyle
Senior Specialist in American Public Law
September 13, 2011
Congressional Research Service
7-5700
www.crs.gov
R42002
CRS Report for Congress
Pr
epared for Members and Committees of Congress
Attempt: An Abridged Overview of Federal Criminal Law
Summary
It is not a crime to attempt to commit most federal offenses. Unlike state law, federal law has no
generally applicable crime of contempt. 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 is an abridged version of CRS Report R42001, Attempt: An Overview of Federal Criminal
Law, by Charles Doyle, without the footnotes, attributions, citations to authority, or appendix
found in the longer report.
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Attempt: An Abridged Overview of Federal Criminal Law
Contents
Introduction...................................................................................................................................... 1
Background...................................................................................................................................... 1
Elements .......................................................................................................................................... 1
Defenses........................................................................................................................................... 3
Sentencing........................................................................................................................................ 4
Relation to Other Offenses .............................................................................................................. 4
Contacts
Author Contact Information............................................................................................................. 6
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Attempt: An Abridged Overview of Federal Criminal Law
Introduction
Attempt is a crime of general application in every state in the Union, and is largely defined by
statute in most. The same cannot be said of federal law. There is no general applicable federal
attempt statute. 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. 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. 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. Thus far, however, Congress has
preferred to expand the number of federal attempt offenses on a much more selective basis.
Background
Attempt was not recognized as a crime of general application until the 19th century. 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. At mid-20th century, the Model Penal Code suggested a basic framework that has greatly
influenced the development of both state and federal law.
The Model Penal Code grouped attempt with conspiracy and solicitation as “inchoate” crimes of
general application. 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. 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.
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.
In spite of efforts that persisted for more than a decade, Congress never enacted the National
Commission’s recommended revision of title 18. It did, however, continue 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.
Elements
Attempt may once have required little more than an evil heart. 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
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Attempt: An Abridged Overview of Federal Criminal Law
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.” 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.
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.” Rather that mention the type of conduct that might constitute a substantial step, the
Commission defined 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.”
Most of the states follow the same path and define attempt as intent coupled to an overt act or
some substantial step towards the completion of the substantive offense. Only rarely does a state
include examples of substantial step conduct.
Intent and a Substantial Step: 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.
The courts seem to have encountered little difficulty in identifying the requisite intent standard. In
fact, they rarely do more than note that the defendant must be shown to have intended to commit
the underlying offenses. What constitutes a substantial step is a little more difficult to discern. It is
said that a substantial step is more than mere preparation. A substantial step is action strongly or
unequivocally corroborative of the individual’s intent to commit the underlying offense. It is
action which if uninterrupted will result in the commission of that offense, although it need not be
the penultimate act necessary for completion of the underlying offense. 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.
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. The line between preparation and attempt is farthest from the
predicate offense where the harm and the opprobrium associated with that 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, 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 recently 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.
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Defenses
Impossibility: Defendants charged with attempt have often offered one of two defenses—
impossibility and abandonment. Rarely have they 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 competed offense would not be a crime, neither is a
prosecution for attempt permitted.”
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.” Since
the completed offense would be a crime if circumstances were as the defendant believed them to
be, prosecution for attempt is traditionally permitted.
Unfortunately, as the courts have observed, “the distinction between legal impossibility and
factual impossibility [is] elusive.” Moreover, “the distinction ... is largely a matter of semantics,
for every case of legal impossibility can reasonably be characterized as a factual impossibility.”
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.
The Model Penal Code avoided the problem by defining 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.”
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.” Several states have also specifically refused
to recognize an impossibility defense of any kind.
The federal courts have been a bit more cautious. They have sometimes conceded the possible
vitality of legal impossibility as a defense, but generally have judged the cases before them to
involve no more than unavailing factual impossibility. 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.
Abandonment: The Model Penal Code recognized an abandonment or renunciation defense. 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. The revised
federal criminal code recommended by the National Commission contained similar provisions.
Some states recognize an abandonment or renunciation defense; 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
abandonment defense in the case of conspiracy, the other principal inchoate offense, they have
declined to recognize a comparable defense to a charge of attempt.
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Sentencing
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. However, both set the penalties
for 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. 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; others set the penalty at the same
level as the crime attempted, again with exceptions for particular offenses in some states.
Most federal attempt crimes carry the same penalties as the substantive offense. The Sentencing
Guidelines, which greatly influence federal sentencing beneath the maximum penalties set by
statute, reflect the equivalent sentencing prospective. 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.
Relation to Other Offenses
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?
Relation to the Predicate Offense: A defendant need not commit the predicate offense to be guilty
of attempt. 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.
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.”
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. Punishment for both a principal and a lesser included offense constitutes such dual
punishment, and attempt ordinarily constitutes a lesser included offense of the substantive crime.
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.” Within chapter 63 are sections that make it a crime to
attempt to commit bank fraud, health care fraud, and securities fraud. There may be some dispute
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Attempt: An Abridged Overview of Federal Criminal Law
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.
Relation to Other General Provisions
Conspiracy: 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. A few states have comparable provisions.
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. 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. Moreover, attempts that take the form of
counseling, commanding, inducing, or procuring another to commit a crime is already a separate
basis for criminal liability.
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 conspiracies: conspiracy to violate a federal
criminal statute and conspiracy to defraud the United States. Conspiracy to defraud the United
States is a separate crime, one that need not otherwise involve the violation of a federal criminal
statute. 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. The offense occurs though no tainted official act has been performed or foregone. It is
enough that the official has sought or been offered a bribe with the intent of corrupting the
performance of his duties. Bribery conspiracy charges appear generally to have been prosecuted,
along with bribery, as conspiracy to defraud rather than conspiracy to violate the bribery statute.
Aiding and Abetting: 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. Aiding and abetting requires proof of intentional assistance in the
commission of a crime by another. Federal courts have found convictions for both attempting to
aid and abet and for aiding and abetting an attempt permissible under appropriate circumstances.
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Author Contact Information
Charles Doyle
Senior Specialist in American Public Law
cdoyle@crs.loc.gov, 7-6968
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