Craigslist Crimes
(Solicitation)
(Solicitation)
Why punish a defendant for solicitation? (based off of the theories of punishment)
Retribution: D is morally blameworthy, maybe more so than a perpetrator, since D will lack direct involvement (Mann)
Utilitarian: Specific deterrence, rehabilitation
MPC and Common law differ on this important requirement on when a criminal conspiracy is formed
Overt acts
Common Law: requires no overt acts, the simple intent to agree and the agreement itself constitutes a crime
MPC: Over act REQUIRED (not necessarily substantial step)
While the MPC and Common law differ on some of the elements of attempt, they have this important element in common.
Intent to commit the underlying offense
In order to be an accomplice, the Common Law requires these dual intents
A) Intent to aid primary co-D; and
B) Intent to aid the result in the commission of a crime
The concurrence in this case paved the way for modern abandonment law, which now allows for Abandonments as a defense, even if the attempt has been made, as long as it is voluntarily stopped
(extra points if you can remember Traditional rule, and how it was applied in this case)
McCloskey
Traditional rule: abandonment is not a defense, because if D has progressed beyond mere preparation, then the crime of attempt is already complete, the D is simply abandoning the substantive crime they are attempting.
The Actus Reus for Solicitation under the MPC requires an "encouragement or request of another person to engage in specific conduct", what 3 types of conduct does the MPC criminalize? (can give hint if confusing)
Conduct must be 1 of 3 things:
1. which would constitute such crime
2. which would constitute an attempt to commit crime
3. which would establish his complicity in its commission or attempted commission [i.e. you are an accomplice–next week]
Pinkerton Liability allows for partners in a conspiracy to all be held liable for all crimes clearly in furtherance of conspiracy, with these 3 limitations...
(not a trick question, think about specifically when Pinkerton liability is required)
Not liable if actions of the co-conspirator are….
1) Not in furtherance,
2) Not within scope, or
3) Not reasonably foreseeable
While attempt under the MPC focuses on what actions the defendant has done towards comission of the crime, the common law tends to look at this to determine when an attempt has been comitted.
How much the defendant has LEFT to do to actually commit the crime
People v. Rizzo
People v. Peaslee
When the underlying offense is not an intent offense, the MPC and Common Law allow proving Mens Rea by showing this...
Common Law "For a reckless/negligent crime, to be guilty as an accomplice must be: A) intentional as to the conduct of the principle; and B) Reckless/Negligent to the result
MPC "…acts with the kind of culpability…with respect to that result that is sufficient for the offense…"
Trolley car on track, brakes fail and will strike 5 workers. Driver can change tracks, strike 1 person, save the 5
Common law and MPC would differ in how they treat this scenario because of this important reason
Common law holds necessity never an excuse to killing another person, and shift in natural outcome creates guilt.
MPC does allow if total benefit greater than harm
These three approaches to solicitation have key differences that separate how solicitation and attempt are related amount jurisdictions.
(Extra, Extra points if you can name 1 case per approach [difficultly level nearly impossible])
Approach #1: Treat the solicitation as a type of attempt, meaning the D guilty of attempt if the solicitation alone shows intent and substantial step
Approach #2a: Solicitation alone is never an attempt, but it can be if the solicitation is combined with any other overt acts
2b: Solicitation alone is never an attempt, but it can be if the solicitation is combined with other overt acts, so long as those are beyond mere preparation
Approach #3: Solicitation is never attempt
Lendof-Gonzalez: (829n6) Ask D to Kill: Not an attempt, per #2
Kimbrough: Letter asks others to kill: No attempt per #3
Peaslee: (785): Solicitation alone may be enough, probably using #1
Withdrawal can serve as a defense only these jurisdictions. In others, withdrawal is never a defense.
Jurisdictions that require overt acts to create conspiracy. In jurisdictions that don't require an overt act, the conspiracy is completed upon agreement, and withdrawal only protects from future Pinkerton liability.
When MPC uses the phrase "substantial step", they are describing this
Any actions that are strongly corroborative of the criminal purpose
A Defendant can be liable as an accomplice for actions they did not intend that are committed by their co-Defendant in these circumstances. Many states have abolished this doctrine for this reason.
(Two part question)
The “reasonably foreseeable consequences doctrine” of accomplice liability allows guilt for any reasonably foreseeable consequence
Many states have abolished the natural and probable standard, because it allows guilt for a lower Mens Rea than actually required in the statute. (MPC requires same Mens Rea as the principle, same as this)
This case about a man shooting 3 black teens on a subway, explains that if a statute requires a "reasonable" belief that force is necessary, a defendant may take into account these factors (among others)...
D's knowledge of the physical attributes of all persons, D's prior experience (if it is reasonable), physical movements of all persons.
D wants to kill his personal trainer because his trainer makes D run way too much and D hates running. D sends a text to a man who he knew was a hitman, asking for the hitman to kill his trainer.
1) D sends a text 2 hours later before the hitman has made any preparation and calls off the hit
2) D sends a text 2 days later after hitman has already purchased guns, but hasn't taken any other acts
When can D be charged with solicitation, and when can he be charged with attempt, if ever?
Apply the 4 different ways courts treat solicitation/attempt
D was driving R to gas station upon R's request. D parks in front of gas station and waits while R goes inside. Posters on gas station windows block view from parking lot. R robs store and runs back to car where D is waiting with car running. D drives off. Can a jury find enough facts to show D part of a conspiracy?
Case, Rule, and Outcome?
Commonwealth v Azim
“By its very nature, the crime of conspiracy is frequently not susceptible of proof except by circumstantial evidence.”
Cannot rely just on conjecture or suspicion, can inferentially show
Outcome? Hard to say, unlike Azim the posters block view, but D did leave car running so maybe
A group plans to kidnap a wealthy executive after work. They know the executive parks in Garage C and usually leaves around 6:00 p.m. The defendants hide in the garage with zip ties, masks, and a van. After waiting forty minutes, they realize they may be in the wrong garage. Before locating the executive, police arrest them.
Case, Rule, and outcome
People v. Rizzo
Rule: Acts amount to attempt when it is so near to result that danger of success is great: “Dangerous proximity”
Outcome? Slightly different than Rizzo because Rizzo were driving around looking for target, while these defendants are lying in wait for target to get off work, different outcome?
D (a security guard at the Bank) observes X robbing a bank, D thinks to himself “Good for them! Those jerks turned down my home loan application last week!” D decides that D will help X if X needs assistance, but X completes the robbery without any assistance
Mens Rea- D has intent to aid, and intent to help crime
Actus Reus- Typically, presence alone and omissions are not enough, but here, D failed to perform a legal duty, which is sufficient for guilt.
The MPC only allows deadly force to defend property in these circumstances:
I) The person against whom the force is used is attempting to dispossess him of his dwelling otherwise than under claim of right to its possession; or
II) The person against whom the force is used is attempting to commit or consummate arson, burglary or robbery or other felonious theft or property destruction and either:
(1) Has employed or threatened deadly force against him or in the presence of the actor; or
(2) The use of force other than deadly force to prevent the commission…of the crime would expose the actor…to substantial danger of serious bodily harm
BTW: No use of deadly force for defense of personal property
D wants to kill his personal trainer because his trainer makes D run way too much and D hates running. D sends a text to a man who he knew was a hitman, asking for the hitman to kill his trainer.
1) D sends a text 2 days later after Hitman is already at the personal trainer's house, with a gun, waiting for the trainer to get home
2) D's text never gets sent because D had no service at the time he sent it, but D did not realize this
When can D be charged with solicitation, and when can he be charged with attempt, if ever?
Apply the 4 merger situations again
Xavier and Duke are out on the town one night, for their annual “tour-de-bar” of downtown drinking establishments. After a heavy night of drinking, they decide to walk back toward Duke’s house five blocks away. Halfway home, Xavier decides he needs a moment to steady himself, so he places his hand on the side of a new Porsche parked on the street. As they talk, Xavier notices a new iPad lying on the passenger seat. He states “lets get that iPad –I have always wanted one.” Duke thinks it is a good idea, so walks over to a l landscaped area and retrieves a rock. Xavier takes the rock in his hand and smashes out the window. Duke grabs the iPad and they run off into the night. When the police observe the video of the incident from a security camera across the street, they go to question Duke. Duke confesses. At their joint trial for conspiracy, Xavier testifies that he “blacked out” due to the alcohol he drank that night. The jury sees his testimony and believes him. The prosecutor charges Xavier & Duke with conspiracy to commit theft.
Guilty? (extra points for bilateral vs. unilateral theory)
Bilateral: Not guilty for both! Voluntary intoxication can be a defense for SI crimes, and if Xavier was intoxicated, then Duke could not have conspired with another
Unilateral: Duke is guilty because he still independently possessed Mens Rea
Two defendants intend to burn a warehouse for insurance money. They enter at night and distribute accelerants throughout the building. They attach homemade timing devices to several ignition points but leave the batteries disconnected so the fire will not begin until the next evening. The next day, they return to a nearby alley carrying the batteries needed to activate the devices. Before reentering the warehouse, police arrest them.
Case, Rule, Outcome
Commonwealth v. Peaslee
Rule: If the preparation comes very near to the completion of the act; “the degree of proximity held sufficient will vary among the circumstances, including, among other things, the apprehension which the particular crime is calculated to excite”
-Collection of the materials, unaccompanied by present intent to light them with ability to do so = too remote
Outcome? Likely guilty, unlike Peaslee, these defendant's collected the materials, and were approaching the warehouse with means to burn it down, might show a present intent to light & ability to do so.
D gives $$$ to undercover agent of police, so agent can get cocaine and D can sell it. Charged with Attempt to possess cocaine w/ intent to deliver. Guilty?
Case, rule, outcome
People v. Genoa
To be an accomplice, DA must show crime/attempt committed by someone. Accomplice liability is derivative of the principal.
Not guilty!
While Common Law recognizes 3 types of impossibility defenses, the MPC does not. Defined in the MPC's attempt elements, legal impossibility effectively prevents a prosecutor from proving the elements of attempt, but the MPC also has this unique take on impossibility as a way to have your charge lessened or dismissed.
MPC 5.05(2): Mitigation: “If the criminal conduct charged to constitute an attempt...is so inherently unlikely to result or culminate in the commission of a crime that neither such conduct nor the actor presents a public danger warranting the grading of the offense…the court may enter judgment [to a lesser offense or dismiss]