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Chapter 3
Anticipatory Offenses and Parties to Crimes
Possible that individuals may engage in behaviors dangerous to society that may imply an inclination to commit a crimeInchoate crimesCrimesthat areanticipatory, imperfect, incipient,or uncompletedImportant because they are threatening and create fear in the targeted victimsMay also lead to other crimes
Inchoate Crimes
The asking, inciting, ordering, urgently requesting, or enticing of another person to commit a crimeTarget crime need not be committedElementsAn actCommanding, encouraging, or demanding that another person engage in conduct that constitutes a crimeAn intentHave purpose of promoting or facilitating that person to commit a crimeIncitement may be directed at a group or crowd as well
Solicitation
Some statutes require solicited crime to be a serious one whereas others include any crimeIn some jurisdictions, communication of criminal solicitation may qualifyEven if not accomplishedSome jurisdictions categorize uncommunicated solicitation as an attempt crime
Solicitation
Penalties vary by statute and jurisdictionIt is not sufficient to joke to another about committing a crimeEven if person commits suggested crimeCommunication must be made with intentSome statutes permit the defense of renunciationOthers require for defense to be acceptable, solicitor of crime must persuadesoliciteenot to commit crime, or must in some way prevent crime from happening
Solicitation
Statutes held by most jurisdictionsSome refer to any crimeOthers limit to serious felony or any one of an enumerated list of serious crimesActinvolving two basicelementsSpecificintent to commit thatcrimePurposefullyExcludes crimes that result of a general intent, negligence, or recklessnessCan hold someproblems
Attempt
Steptoward commission of a crime (act)Defendant moved beyond preparation towards perpetration of crimeDifference between two is of critical legal significanceOne does not have to be active participant to constitute perpetrationCan aid or abetSee Focus 3.3Offender’s act does not have to be the last act in chain of causation to constitute an attempt
Attempt
AbandonmentMust be evidence it is voluntary and completeMost courts do not recognize this defense when it is the result of getting caughtIf allowed, is interpreted strictlyImpossibilityFactual impossibilityCircumstances unknown to actor that prevented commission of attempt
Attempt: Two Defenses
Legal impossibilityNo crime would have been committed even if intentions had been fully performed or set in motionMost courts hold defendant may be charged with attempt when physical or factual impossibility existsNot when legal impossibilityexists
Attempt: Two Defenses
Agreeing with another to join together for the purpose of committing an unlawful act or agreeing to use unlawful means to commit an act that would otherwise be lawfulUnlawful act does not have to be committedCrime involves the agreementPermits criminal prosecution for behavior of others as well as one’s own acts
Conspiracy
In most jurisdictions, defendant can be convicted of conspiracy and of crime that was its objectSome do not permit two convictionsAgreement may be sufficient to constitute act requirement
Conspiracy
Not recognized crime in early common lawDefined narrowly when it emergedExpanded over yearsRex v. Jones(1832) definitionEnglish caseUsed termunlawfulUnlawful has been interpreted more broadly thancriminalState v. Burnham(N.H, 1844)
Conspiracy: Problem of Definition
Some jurisdictions retain common law definition even if codified into lawSome statutes specify it must be to commit a crimeOthers specify specific types of crimesIn general statutes are broadMany courts have upheld themMusser v. Utah(1948)Some statutes divide it into degrees
Conspiracy:Problem of Definition
Can be the agreementEssence of conspiracyDoes not have to be writtenCan be inferred from facts and circumstances of caseProving existence of agreement may be difficultObjective standard methodSubjective testUnited States v. Brown(2d Cir. 1985)Careful analysis of alleged agreement is important
Conspiracy: Two Elements:1. Criminal Act
Problem of Multiple AgreementsAnother issue is whether more than one agreement was in effectCan lead to acquittal if more than one existed and evidence exist of them, but only one can be proven by prosecutorNumber of agreements may also be important in imposition of punishment
Conspiracy: Two Elements:1. Criminal Act
The Requirement of an Act Plus an AgreementIf required, there must be an overt actNormally requirement is not as stringent as that required for an attemptOften intended to give any of the actors a chance to abandon participation and avoid prosecutionSome states specify requirement only for some conspiracy crimesNot always necessary for all co-conspirators engage in overt actUnited States v. Robinson (7thCir. 1974)
Conspiracy: Two Elements:1. Criminal Act
In prosecuting conspiracy, must be proved they intended to accomplish unlawful objective, which was object of conspiracyElements of objective must be metProblem exists in what to do with alleged conspirators who merely provide goods or services used by others for unlawful purposesRequires intent, not just knowledge
Conspiracy: Two Elements:2. Criminal Intent
In some jurisdictions, parties must have had a corrupt motivePeople v. Powell(1875)Not all courts agreeSome take position that if conspiracy is to commit act not generally agreed to be a crime but has been defined as such, corrupt motive doctrine appliesBased on assumption person should be aware there are laws against more serious acts, but not that lesser acts are crimes
Conspiracy: Two Elements:2. Criminal Intent
Named after Francis WhartonSpecifies when individuals engage in crimes that by definition require more than one person, they may not be prosecuted for conspiracyThird party must be involved for conspiracy to existSome jurisdictions have rejected this rule
Conspiracy: Limitations on Parties:1. Wharton Rule
Under common law were one personCould not conspire to commit a crimePosition accepted in United States in earlier daysBased primarily on assumption husband “owned” wifeLaws have changed todayWife may legally act independently of husband
Conspiracy: Limitations on Parties:2. Husband-and-WifeRule
For conspiracy to exist, two or more persons must be involvedSome courts have taken position if one is acquitted, the other cannot be convictedOther courts look to reason they were not convictedPossible second one can beconvictedSimilar issues arise when person charged with conspiracy allegedly conspired with another who had no intention of carrying out actModern cases have held this situation does not preclude conviction against party with intent
Conspiracy: Limitations on Parties:3. Two-or-MoreRule
Corporations may commit conspiracy with other corporations or with natural personThere are problems with two-or-more ruleProblem arises when corporation and one of its officers are chargedVery early cases established this does not constitute conspiracyUnion Pacific Coal Co. v. United States(8thCir. 1909)Requirement also arises when two or more agents of same corporation are involvedCourts have differed on this situation
Conspiracy: Limitations on Parties:4. Corporation Rule
Most courts hold impossibility is not a defense to conspiracySome jurisdictions hold legal but not factual impossibility is a defenseSome jurisdictions permit withdrawal or renunciation as defenseMight be difficult to proveJurisdictions differ on statutory requirements to prove and courts vary on interpretations of statutes
Conspiracy: Defenses
Important issue that arises is extent to which actor is responsible for crimes of his or her co-conspiratorsPinkerton v. United States(1946)Pinkerton rule criticized as one that could result in gross distortionsSome courts dodge problem by limiting criminal culpability for crimes of co-conspirators to reasonably foreseeable acts
Conspiracy: Other Issues
Another issue concerns duration of conspiracyCulpability for crimes of co-conspirators lasts only as long as conspiracyCulpability continues until agreement is abandoned or succeedsBoth duration and extent of culpability for crimes of co-conspirators are affected by whether defendant withdraws successfully or abandons conspiracy
Conspiracy: Other Issues
U.S. Supreme Court considered issue of whether conspiracy ends when law enforcement intervenesConspiracy cases may be (and usually are) extremelycomplicatedFrequently, conspiracy charges are combined with charges for substantive crimesMay be multiple defendantsNumerous substantive crimes may be allegedCases can take weeks, evenmonthsCan result in enormous expenses to government and defendants
Conspiracy: Other Issues
Law has long recognized criminal culpability for people other than those who commit criminal actsComplicityAssociation with a wrongful actAccomplicePerson who shares in the guilt, even though they did not engage in the crimeVarious terms are used to describe type and degree of accomplice involvement
Parties to Crimes
Under common lawPrincipalPerson who committed the crimeAccessoryPerson who assists in crime or encourages another to commit a crimeMost modern statutes do not make this distinctionBoth are treated as principlesAccessories may be convicted even if principal is notSome jurisdictions distinguish between types of principals and types of accessories
Parties to Crimes
Principal in the first degreeOne who perpetrates crime either through his or her own action or by use of inanimate objects or innocent peoplePrincipal in the second degreeOne who incites or abets the commission of a crime and is present actually or constructivelyConstructive presenceWhen without being present, he or she assists principal in first degree at moment crime is being committed
Parties to Crimes: Principals
Accessory before the factOne who incites or abets but is not present actually or constructively when crime is committedAccessory after the factOne who, knowing felony has been committed, receives, relieves, comforts, or assists perpetrator of criminal act for purpose of hindering apprehension and conviction of that person
Parties to Crimes: Accessories
Mostmodern statutes donot make distinctionAccessories may be convicted even if principal has not been convictedSome exceptions applyMany current statutes simply specify accomplice is accountable legally for conduct of anotherDo not use categories used historically
Parties to Crimes
Whether it is necessary to find principal guilty before convicting accompliceThe actThe mentalstateOften fine line is drawn between doing and not doing enough to constitute act required for accomplice liabilityEach case must be decided on its unique facts
Parties to Crimes: Three Elements of Accomplice Liability
Jurisdictions differ regarding intent requirement of complicityGenerally, alleged accomplices required to have intent required for offenses for which they are alleged to be accomplicesFew cases have been decided on this issueTwo leading ones disagreeBackunv. United States(4th Cir. 1940)United States v.Peoni(2d Cir. 1938)
Parties to Crimes: Three Elements of Accomplice Liability
Several ways to solve conflict between two positions have been suggestedAccomplice liability may be limited to instances in which there exists purpose of promoting or facilitating commission of an offenseSome courts have held it is sufficient that accomplices know their acts will assist in commission of crimesDo not necessarily desire that resultSome jurisdictions permit finding accomplices have requisite criminal intent if they act recklessly, knowing behavior will facilitate commission of a crime
Parties to Crimes: Three Elements of Accomplice Liability
Some jurisdictions have specified other conditions that must be consideredOne other approach to intent issue is to enact statute for criminal facilitationFacilitationTo make it easier for another person to engage in criminal actsPenalties for complicity may be assessed in terms of seriousness of target crime
Parties to Crimes: Three Elements of Accomplice Liability
Whether the Wharton rule appliesIn most cases of accomplice liability individual not held criminally culpable as accomplice when he or she assists principal to commit crime that by definition requires two peopleDefensesAbandonment generally recognizedDefendant must show complicity was abandoned in timely mannerThe scope of the accomplice liabilityTraditionally accomplice held criminally responsible for all crimes that might reasonably result in complicityEven though principals crimes go beyond those crimes contemplated by accomplice
Parties to Crimes: Other Issues
Crimes also prosecuted under federal Racketeer Influenced and Corrupt Organizations Act (RICO)Part of Organized Crime Control Act of 1970Designed primarily to prosecute organized crimeOperates on a pattern of offensesMost generally racketeeringAllows enhanced penalties
Parties to Crimes: Prosecuting Anticipatory Offenses and Parties to Crime
ForfeitureGovernment may order personal or real property acquired from money derived through RICO acts be forfeited to governmentDiffers from other statutes in that penalties may be cumulativePenalties for underlying crime as well as RICO violationHas been used to prosecute other crimes
Parties to Crimes: Prosecuting Anticipatory Offenses and Parties to Crime

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