Chapter Eight

Inchoate Crimes: Attempt,
Conspiracy and Solicitation
Joel Samaha
Understand how inchoate offenses
punish people for crimes they’ve
started to commit but have not
finished committing.
Appreciate the dilemma inchoate
offenses present to free societies
and know the three different ways
inchoate offenses are resolved.
Understand how liability for
criminal attempt offenses is based
on two rationales: prevent
dangerous conduct and
neutralizing dangerous people.
The mens rea of inchoate crimes is
always the purpose or specific
intent to commit a specific crime.
The actus reus of attempt is an
action that is beyond mere
preparation but not enough to
complete the crime.
Understand the differences
between legal impossibility,
which is a defense to attempt
liability, and factual
impossibility, which is not.
Understand that voluntary and
complete abandonment of an
attempt in progress is a
defense to attempt liability in
about one-half the states.
Understand that punishing conspiracy and
solicitation to commit a crime is based on nipping
in the bud the special danger of group criminality.
 Know the different types of conspiracies.
 Understand the Racketeer Influenced and Corrupt
Organizations(RICO) Act and how it works against
organized crime.
 Understand that punishing solicitation is based on
the same idea as punishing conspiracy: to stop
such crimes from happening before they start,
anticipating the dangers of group criminality.
 Inchoate
= to begin
 Inchoate Crimes
• Attempt
• Conspiracy
• Solicitation
 Inchoate
crimes share
• Mens rea: specific intent to commit completed
• Actus reus: some steps toward accomplishing the
crime, but not enough steps
Look to general part of the criminal law to find
the provisions regarding inchoate crimes—
regardless of what the intended crime is.
 Dilemma
• No harm yet done
• person is determined to commit a crime
Resolving dilemma
• Require specific intent or purpose to commit the
crime or cause a harm
• Require some action to carry out the purpose
• Punish inchoate crimes less severely than completed
• By 1600’s common law
courts began to develop
doctrine of attempt law
• By 1700’s common law
courts had created law of
 Rex v. Scofield
 “intent may make an act,
innocent in itself, criminal; nor
is the completion of an act,
criminal in itself, necessary to
constitute criminality.”
• By 1800’s: All attempts
whatever to commit
indictable offenses,
whether felonies or
misdemeanors are
• Focus on dangerous acts
 Looks at how closely the
defendants came to
completing their crimes
 Aims to prevent harm from
dangerous conduct
• Focus on dangerous
 Looks at how fully defendants
have developed their criminal
 Aims at neutralizing persons
 Actus
• Intent or purpose to commit a specific crime
• Act or acts to carry out the intent
 Two
types of attempt statutes
• General attempt statute: person is guilty of attempt
to commit a crime if, with intent to commit the crime,
he does an overt act toward the offense
• Specific Attempt statutes: define attempt in terms of
specific crimes (attempted murder, attempted
 Attempt Mens Rea
• All attempt crimes require the purpose of engaging
in criminal conduct or causing a criminal result
 Facts: Kimball, the
defendant, was at the Alpine
Party Store and demanded money from the
women working at the cash register. The
defendant claimed it was a joke.
 Issue: Did Kimball intend to rob the store?
 Holding: Court examined facts to determine
whether it was clearly erroneous (standard of
review) for the trial court to find that there was
sufficient evidence to prove defendant had the
requisite intent to attempt to commit unarmed
 Continuum
of what is required to commit an
• One end of spectrum: last act necessary
• Other end of spectrum: any slight thing above
mere preparation (mere preparation is not an
attempt under any approach)
• Jurisdictions vary tremendously in what
constitutes the actus reus for attempt, check the
 Different “tests” aren’t mutually exclusive, rather they
are efforts to describe the acts that are enough to fall
within the spectrum
Dangerous Conduct -- Proximity tests
• Were acts close enough to intended crime to count them as a criminal act?
• Physical proximity–
 dangerous proximity to success test
 did actor come dangerously close to committing crime
 Focus on what actors still have to do to carry out their purpose
• Dangerous proximity
• Indispensible element test
 Has person gotten everything they need to complete the crime
Dangerous persons tests
• Unequivocality (res ipsa loquiter) test
 Act speaks for itself
 Would ordinary person who saw defendant’s acts without knowing her intent believe
the person intended to commit the crime?
 Stop the film test
• Probable desistance test
 Defendants have gone far enough toward completing the crime if it is unlikely they will
turn back
• Substantial steps test
 Actus
reus of attempt under MPC two
• Substantial steps toward completing the crime
• Steps that strongly corroborate the actor’s
criminal purpose.
 List of things that constitute substantial steps
 Preparation
isn’t criminal attempt
 Some states have created preparation
Jeff told Scott he plans to burn down the police station.
Jeff goes to the store and buys matches and several
newspapers. Is this an attempted arson?
Jeff told Scott he plans to burn down the police station.
Jeff goes to the store and buys matches and several
newspapers. Jeff then puts the newspapers next to
the front door of the police station. He attempts to
light a match but it’s too windy and it won’t light. Is
this an attempted arson?
 Facts: Mims, the
defendant, and 4 others had a
plan to rob a bank. When they arrived at the
bank, it was closed. They got the attention of an
employee. When she approached them, one of
the boys placed a gun to her head and told her
they were going to rob the bank. She stated it was
“too late” as the bank was closed. They then ran
 Issue: Did Mims attempt to rob the bank
 Holding: Preparation alone is not an attempt.
Must have some degree of accomplishment
 Facts: Rizzo, the
defendant, and 3 other were
driving around looking for someone to rob when
they were arrested. They were tried and
convicted of attempted robbery.
 Issue: Did their acts add up to attempt actus
 Holding: Only acts as tending to the commission
of the crime which are so near to its
accomplishment that in all reasonable probability
the crime itself would have been committed, but
for the timely interference.
 Facts: Peaslee, the
defendant, arranged
combustibles in a building he owned in a way that
if lighted, would have set fire to the building. His
accomplice refused to light the fire.
 Issue: Did Peaslee attempt to commit arson?
 Holding: “A mere collection and preparation of
materials in a room, for the purpose of setting fire
to them, unaccompanied by any present intent to
set the fire, would be too remote and not all but
the “last act” necessary to complete the crime.”
 Legal
impossibility (a valid defense)
• Actors intend to commit crimes, and do
everything they can to carry out their criminal
intent, but the crime law doesn’t ban what they
• Requires different law to complete the crime
 Factual
impossibility (not a valid defense)
• Actors intend to commit a crime and try to
commit the crime but some extraneous factor
interrupts them to prevent the completion of the
• Requires different facts to complete the crime
 Facts: Damms, the
defendant, held a gun to his
wife’s head and fired. The gun did not fire as it
was unloaded.
 Issue: Was Damm’s guilty of attempted murder?
 Holding: The gun being unloaded is not
extraneous factor since it was in the control of the
Affirmative defense to
attempt liability
Must be complete
Must be a result of a
change in the actors
purpose (stemming from
a change of heart), not
influenced by outside
Reappraisal of possible
sanctions can prompt the
change of heart, as long
as the fear of the law isn’t
related to the particular
threat of detection
(specific to this case)
• Those who renounce
criminal attempts in
progress aren’t the
dangerous people the law
wants to punish
• Renunciation prevents what
we most want to prevent,
harm to victim
• Encourages criminal to
give up their criminal
• Contra: encourages bad
people to take first steps
because they know they
can escape punishment
 Facts: Le
Barron, the defendant, forced Randen
into a shack, unzipped his pants and began to pull
up her skirt. She told him she was pregnant and
pleaded with him to stop. Le Barron verified she
was pregnant and stopped the attack.
 Issue: Did Le Barron voluntarily abandon his
attempt to rape?
 Holding: No. The pregnancy which caused Le
Barron to stop does not qualify as an “extraneous
factor”. Hos overt acts established that he
intended to rape the victim.
Agreeing with one or more people to commit a
 Liability can attach to conspiracy a lot sooner
than with attempt
• Conspiracy law is designed to nip criminal purpose in
the bud
• Conspiracy strikes at the danger of group criminal
Overt Act
• ½ states require an overt act in furtherance of the
• ½ states require only the agreement to constitute actus
• Overt acts “verify the firmness of the agreement”
Agreement to commit a
Overt act in furtherance of
the agreement
Agreement doesn’t have to
be in writing
There has to be a meeting
of the minds
Facts and circumstances
that point to an unspoken
understanding between
Not clear at common law,
still not clear
Divergent and inconsistent
• Specific intent to commit a
criminal act
• Specific intent to commit a
specific criminal objective
• Examples of why it matters
• Do all those in agreement
need to agree to each
other’s purpose?
 Facts:
Garcia, the defendant, and Humo were
charged and convicted of conspiracy to assault 3
rival gang members.
 Issue: Did Garcia agree to assault 3 Crips
members with a deadly weapon?
 Holding: A general agreement among gang
members to back each other is not sufficient
evidence of a conspiracy
Traditional approach
• Two or more must agree to complete a crime
• The parties need to have actual agreement
• Problem: undercover situation, failure to convict one
party should lead to failure to convict the others
Unilateral Approach
• No requirement that parties know all of their co-
• No requirement that state prove the intent of all the
parties….Sufficient that the state prove that X
intended to enter an agreement with Y to commit a
crime…Conspiracy exists even if Y doesn’t really
mean to go through with it (undercover officer
Wheel Conspiracies:
• One or more defendants
participate in every
transaction (the hubs)
• Others participate in only
one transaction (the
• Example:
 Ed conspires with Sam to
illegally sell his motor home.
 Ed conspires with Fred to
illegally sell his motor home.
 Ed is the hub and Sam/Fred
are spokes.
 Sam and Fred don’t need to
know of each other or come to
an agreement amongst
Chain Conspiracies:
• Participants at one end of the
conspiracy may know
nothing of those at the other
• Every participant handles
the same commodity at
different points
• U.S. v. Bruno example
 Narcotics smugglers,
purchasers, middlemen
Scope of criminal objective may vary from
narrow to broad
 Vague definition leads to prosecutorial discretion
 Prosecute conspiracy rather than the underlying crime?
 Media attention to conspiracy
Some states efforts to narrow conspiracy
 Model Penal Code—adopted the overt act
requirement plus requirement that the mens rea
include purposeful conduct to carry out the
objective of the agreement
Doug is a drug dealer who is about to import a large shipment of
heroin from south of the border. Doug has recently become friends
with Steve and he asks Steve if he would like to help him import and
distribute the heroin. Steve agrees to help Doug. What Doug does
not know is that Steve is a federal narcotics agent who has been
investigating Doug. Before Doug is able to pick up the shipment,
Steve has him arrested. Is this a conspiracy?
Doug and Steve are two drug dealers who agree to work together to
bring a shipment of heroin across the border. Doug and Steve drive
to the border and begin unloading the drugs from their supplier’s
truck into their own van. Ralph happens to be driving by and sees
what is going on and hops out of his car and begins helping them to
unload the drugs. Is Ralph a conspirator with Doug and Steve?
Grew out of need to deal with
organized crime
 Enhanced penalties for criminal
 Racketeering activity encompasses a
lot of different types of behaviors
 Used for mobs and the extended to
other white collar crimes, now used for
gang activity
Rico Trials
Government must prove enterprise
Must prove multiple crimes to
establish pattern
Mass trial with large number of
Review the article below to learn more
about how RICO was used in the nations
largest prosecution of gang members.
 Facts: Alexander, the
defendant, was convicted of
selling pornography and sentenced to 6 yrs. in
prison, fined $100,000; ordered to pay the cost of
prosecution, incarceration and supervised release
and ordered to forfeit his interest in 10 pieces of
commercial real estate and 31 current or former
 Issue: Was the forfeiture an excessive fine?
 Holding: Proportionality review not required for
any sentence less than life.
Trying to get someone else to commit a
Solicitation Actus Reus
• Statements made as
• Specific intent
• Purpose to commit a
inducement to commit
 Advises, commands, counsels,
encourages, entices, entreats,
importunes, incites, instigates,
procures, requests, solicits,
• Effort to get another to
commit a crime
Inducement that doesn’t
reach its object may
Solicitation Mens Rea
specific crime
Some states limit
solicitation to soliciting
felonies or violent
 Facts: Schleifer, the
defendant, was charged for
solicitation to commit crimes after he called for
violence against the railroad management and it’s
property during a speech.
 Issue: Did Schleifer solicit his audience to destroy
their employers’ homes and businesses?
 Holding: Schleifer was talking to every
individual and could be considered solicitation.

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