Chapter 3
Anticipatory Offenses and Parties to Crimes
Supplement 3.1 Solicitation Statutes.
Some states divide solicitation into degrees, with the crime considered more serious as the crime solicited becomes more serious.Others consider the relative ages of the solicitor and the solicitee.New York, for example, defines solicitation in the first degree as follows:
A person is guilty of criminal solicitation in the first degree when, being over eighteen years of age, with intent that another person under sixteen years of age engage in conduct that would constitute a Class A felony, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct.[1]
Pennsylvania’s solicitation statute is illustrative of a comprehensive statute that does not break the crime down into degrees:
A person is guilty of solicitation to commit a crime if with the intent of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct which would constitute such crime or an attempt to commit such crime or which would establish his complicity in its commission or attempted commission.[2]
Supplement 3.2 UncommunicatedSolicitationDefined as an Attempt Crime.
Some jurisdictions classify uncommunicated solicitation as attempted solicitation, as illustrated by the following excerpt from State v. Lee, decided by the Oregon Court of Appeals in 1991.[3]Notice as you read this passage that the court refers to common law in its efforts to interpret the crime of solicitation.Notice also the mention of the MPC as providing a basis for the Oregon solicitation statute but differing in one key element from that code.Finally, this case demonstrates that even when a lower court is in error, a new trial may not be required.
State v. Lee
804 P.2d 1208 (Or. App. 1991), cases and citations omitted
“Defendant appeals his conviction for solicitation to commit robbery in the first degree.He argues that a letter that was not delivered can support, at most, a conviction for attempted solicitation.We agree.
In July, 1989, defendant, while in jail, wrote letters to an acquaintance who was in the Hillcrest Juvenile Center, outlining plans to rob a store and a residence.The letters were intercepted by Hillcrest personnel and never reached their intended recipient.The first intercepted letter stated:
I wrote about two weeks ago.I guess you didn’t get it.So, I'll tell you again.The job I got set up will get us some guns.On the other page is a picture of the place.And then I want to go to Washington.Okay.
The letter also described plans for robbing a store and burglarizing a residence.The other letter intercepted at Hillcrest also discussed plans for a “job.” Defendant admitted that he wrote the letters.
Defendant first argues that there was insufficient evidence to convict him of solicitation.He contends that the evidence was insufficient for the court to find that he had the requisite “intent of causing another to engage in specific conduct constituting a crime” [as required by statute]. . . .
Defendant next contends that, because the letters were never received by the addressee, he did not commit the crime of solicitation, but only attempted solicitation.Solicitation is defined in [the state statute as follows]:
A person commits the crime of solicitation if with the intent of causing another to engage in specific conduct constituting a crime punishable as a felony or as a Class A misdemeanor or an attempt to commit such felony or Class A misdemeanor the person commands or solicits such other person to engage in that conduct.
The statute contains two elements:mensrea and actusreus.Defendant was found by the trial court to have the specified state of mind.He argues, however, that the actusreus proved by the state was insufficient to support a conviction, because the intercepted letters do not constitute a completed solicitation.
The statute provides that a person is guilty of solicitation if that person “commands or solicits”another to engage in criminal conduct constituting a felony or a Class A misdemeanor.However, the terms “command” or “solicit” are not defined in the statute, and it is unclear whether they include circumstances where a communication is not received.Our function is to construe the statute to carry out the legislature’s intent. . . .
[The court then reviewed the legislative history of the statute, along with that of common law and the Model Penal Code.]
We conclude that a completed communication is required to prove the crime of solicitation.Accordingly, defendant’s conviction for solicitation was error.An attempt to solicit is necessarily included in the completed crime.Because the trial court found defendant guilty of acts constituting attempted solicitation, no new trial is required.”
______
Supplement 3.3 An Attempt Crime Requires a Criminal Act.
To constitute an act for an attempt crime, most courts require that thedefendant has gone beyond preparation and has moved toward perpetration of the crime.The difference between preparation and perpetration is of critical legal significance in that, unless perpetration has occurred, there is no criminal attempt.In the following excerpt from United States v. Cartlidge, the appellate court discusses various tests for making this determination.The defendant inCartlidge was a former law enforcement officer who argued that the evidence used to convict him of protection for a purported marijuana smuggling operation was not sufficient to support his conviction for attempting to aid and abet (assisting or facilitating the commission of a crime; discussed in the text) in the possession and distribution of marijuana.The court disagreed.
The court held that the defendant’s acts of “silence and providing warnings when needed, promising assistance, assurances of ability to provide protection against law enforcement interference, and supplying information about a convenient time for the operation, coupled with the acceptance of payment for these services,” went beyond preparation and supported an attempt to aid and abet a federal crime.The court’s discussion of the issue is enlightening.[4]
United States v. Cartlidge
808 F.2d 1064 (5th Cir. 1987), cases and citations omitted
“A recurrent problem in determining whether a defendant has committed an attempt is “pinpointing the time in the unfolding of a criminal plan at which the actor becomes liable for an attempt.” The execution of a crime, other than one committed impetuously, involves planning and preparation.Like the jurisprudence of most states, federal law defines the threshold of criminality as the time when the defendant has gone beyond those preliminary activities and committed the additional act that constitutes the proscribed attempt even though he has not yet committed the contemplated crime. . . .
Most states have adopted the subjective [in contrast to the objective] criminality approach. . . .[T]his approach emphasizes what the defendant has already done rather than what remains to be done, imposes liability only if some firmness of criminal purpose is shown, and permits the defendant’s conduct to be assessed in the light of the statements.It also recognizes that an attempt to aid in the commission of a crime is sufficient for criminal sanction, and several statutes explicitly condemn such conduct. . . .
Cartlidge contends that the evidence against him, even if wholly believed, was sufficient only to prove that he took a bribe, not that he attempted to aid and abet in the distribution of marijuana.Cartlidge’s acceptance of three payments was evidence of receipt of a bribe, but it was also a step in a plan to aid in the distribution of a controlled substance.Cartlidge also gave information about the propitiousness of the planned date, furnished information, albeit erroneous, that federal agents could not conduct an investigation without his knowledge, and promised to shield those whom he thought to be drug dealers.These activities are sufficient to show that he had moved beyond preparation.They were substantial steps strongly corroborative of criminal intent.”
______
In this case, the court refers to an “additional step” and a “substantial step” that are sufficient to indicate that preparation has occurred.
A 1996 case decided by the Tennessee Supreme Court draws a distinction between a substantial step and mere preparation.The case involved two 12-year-old girls who plotted to kill their teacher with rat poison.One of the girls took the poison in her purse to school that day.She showed it to another student on the bus, and after they arrived at school that student told the homeroom teacher, who told the principal.
The two defendants were leaning over the teacher’s desk near her coffee cup when the teacher walked into the room.They giggled and ran back to their seats.The teacher saw a purse lying next to her coffee cup.Shortly thereafter the student who owned the purse was called to the principal’s office, where the purse was searched and the rat poison found.Subsequently both girls gave written statements to the sheriff concerning their plans to poison their teacher.
The court noted that under the prior Tennessee statute and a previous court ruling in that state, in all probability there would have been no attempt crime unless the poison had already been placed in the cup.At that point, however, it might have been too late.The teacher might have consumed the drink with the poison and died.The court held that the facts were sufficient to conclude that the offender had taken a substantial step (as required by the new statute) toward committing second-degree murder.The court stated that
when an actor possesses materials to be used in the commission of a crime, at or near the scene of the crime, and where the possession of those materials can serve no lawful purpose of the actor under the circumstances, the jury is entitled, but not required, to find that the actor has taken a “substantial step” toward the commission of the crime if such action is strongly corroborative of the actor's overall criminal purpose.[5]
The requirement of a substantial step is particularly difficult in attempt cases involving sex crimes.Compare the following two cases: In the first, the defendant was convicted of attempted rape after he ordered a woman to take off her clothes.She was wearing jeans and could not get them off over her boots; so he ordered her to perform oral sex on him.He put her in the trunk of his car, drove around for several hours, and let her out.He was convicted of assault and battery with intent to kill, attempted rape, forcible sodomy, robbery with a firearm, and kidnapping.The appellate court upheld all but the conviction for attempted rape, which it reversed on the grounds that thedefendant did not take a substantial step toward committing rape.The court explained, “It must be such act or acts as will apparently result, in the usual and natural course of events, if not hindered by extraneous causes, in the commission of the crime itself.”[6]As subsequent discussions in the textnote, the forced act in this case may constitute rape today, but this was not the case at that time.
In the second case, the defendant stopped a 13-year-old girl who was riding her bicycle from her parents’ home, where she had been helping her mother with a garage sale, to another garage sale down the street.The defendant asked the girl to help him find his dog; she refused.He offered her money to do so; she refused.He offered more money; she refused.He said he would go to her home and ask her parents if she could help him and asked her to get into his truck so he could drive her home.She refused.
The defendant followed the girl to her home.The girl told her mother what had happened, and the police were called.The defendant denied that he had any improper intentions, but the evidence showed that he did not have a dog and that previously he had been convicted of raping a 13-year-old girl.Do you believe the facts constitute sufficient evidence to convict him of attempted kidnapping and attempted rape?The Oregon Court of Appeals upheld the conviction for attempted kidnapping in the second degree but reversed the conviction for attempted rape.The Oregon Supreme Court reversed, leaving both convictions standing.[7]
Supplement 3.4 The Problem of Multiple Agreements: United States v. Bruno.
It is not always easy to determine whether one or more conspiracies existed.Consider, for example, a complex series of transactions such as occurred in United States v. Bruno, a frequently cited case despite the fact that it was decided in 1939 and reversed on other grounds.Bruno can be analyzed by two methods of determining the nature and scope of a conspiracy and whether one or more conspiracies existed: the chain or the wheel (or circle).[8]
In Bruno, 88 defendants were indicted for conspiracy to import, possess, and sell narcotics over a long period.The evidence showed that smugglers in New York City imported the drugs and sold them to intermediaries, who distributed the drugs to two groups of retailers, one in Texas and Louisiana and the other in New York.These transactions are diagrammed here:
The Wheel and Chain Approach to the Agreement Requirement of a Criminal Conspiracy
Source: Diagrammed by the author from the facts of United States v. Bruno, 105 F.2d 291 (2d Cir. 1939), rev’d on other grounds, 308 U.S. 287 (1039).
The smugglers in Bruno committed the crime of importing.The intermediaries committed the crime of illegal distribution, and the two groups of retailers committed the crime of selling drugs illegally.The retailers argued that because there was no evidence that they had any contact with one another or with the smugglers, they were not involved in a conspiracy with them.
The U.S. Supreme Court held that only one conspiracy existed and that despite the lack of contact between the retailers and the smugglers, they each knew the other had to exist in order to complete the acts of smuggling, possessing, and distributing drugs.This chain of activities implies the existence of only one large conspiracy.Each retailer could be held criminally liable for every sale of narcotics made by other retailers, as well as for the crime of smuggling.
In the second method of determining the extent of a conspiracy or the number of conspiracies—the wheel or circle—the intermediaries (distributors) may be viewed as the central hub of the wheel, with the smugglers and each group of retailers constituting spokes on the wheel.Although in Bruno there was no communication between the New York retailers and the Texas and Louisiana retailers or between either of those groups of retailers and the smugglers, all communicated with the distributors.The U.S. Supreme Court held that such communication would be sufficient to establish an agreement to violate drug laws.
The retailers in Bruno argued unsuccessfully that there could not be only one conspiracy, as the government had charged, because neither group of retailers knew of the existence of the other and neither had communicated with the smugglers.The U.S. Supreme Court held that only one conspiracy existed.The Court ruled that, although it was of no concern to the smugglers who or how many retailers were involved, they knew there had to be retailers for the drugs to be sold.
The U.S. Supreme Court also held that each retailer knew he was a necessary part of “a scheme of distribution, and the others [the other retailers], whom he knew to be convenient to its execution, were as much parts of a single undertaking or enterprise as two salesmen in the same shop.”[9]
Supplement 3.5 Duration of a Conspiracy.
The following Pennsylvania statute is one example of the requirements for the duration of a conspiracy:
(g) DURATION OF CONSPIRACY . . .
(1)conspiracy is a continuing course of conduct which terminates when the crime or crimes which are its object are committed or the agreement that they be committed is abandoned by the defendant and by those with whom he conspired;
(2)such abandonment is presumed if neither the defendant nor any one with whom he conspired does any overt act in pursuance of the conspiracy during the applicable period of limitation; and
(3)if an individual abandons the agreement, the conspiracy is terminated as to him only if and when he advises those with whom he conspired of his abandonment or he informs the law enforcement authorities of the existence of the conspiracy and of his participation therein.[10]
Supplement 3.6 Intervention of Law Enforcement Officials.
The U.S. Supreme Court considered the issue of whether a conspiracy ends when law enforcement officials intervene.The facts and rationale of that 2003 case are given in the following summary of United States v. Recio.[11]
The case involved a drug transaction in which four men were charged and convicted for illegally transporting $12 million worth of cocaine and marijuana.Government officials seized the truck and arrested the two original drivers, who then cooperated with law enforcement and drove the truck to their original destination, at which point the truck was taken over by Jimenez Recio and Adrian Lopez-Meza, the other two alleged conspirators.Recio and Lopez-Meza were arrested, charged, and convicted of conspiracy to possess with intent to distribute a controlled substance.Recio was also convicted of possession with intent to distribute.