UNIT TWENTY-TWO - Larceny (Possession/Custody; Larceny & Embezzlement; Trespassory Taking & Asportation; Intent to Deprive; Concurrence of Conduct & Culpable Mental State); Texas Theft

Skip a line, new topic for this unit. The new subject is property crimes (1 -investigation), (2 - 9,080,788 of 'em in 2006). Property is in our blood here in America. Our economy is a jungle where the law is eat or be eaten, a place where you have to move fast just to stand still, a place with an insatiable appetite for tomorrow and the pursuit of happiness, a place where the American dream is the dream of accumulating more material possessions than the guy next door, a place where we don't own things and they do own us. Greed seems to be the operative moral value. The unscrupulous Enron & World Com crowd capitalized on that human trait in the late 90's. In the first decade of the twenty-first century it was banks and investment houses that wrecked the American economy with a Wall Street crash heard round the world in late 2008 and early 2009. There were some real huckleberries involved - from so-called "Texans" Bush2 and Phil Gramm to New Yorker Bernie "Ponzi Scum" Madoff, who preyed off his own kind, the greedy rich. See Bullets IV for a list of the morlocks who caused the economic meltdown of 2008-09 and further explanation. Shrewd Wall Street money managers, investment bankers and financiers coupled with governmental mismanagers laid it to us common folk. [My fellow students who'll be looking for jobs in the next few years and superannuated oldsters who are too old to work will take this recession/depression in the keister.] American crooks have matured with the society. Now we are blitzed with fraud crimes like telemarketing fraud, money laundering, insurance fraud, computer crimes, elder fraud, identity theft, bank and credit card fraud, etc. Check out cybercrime. Sometimes I wonder if life in a small seaside village, e,g., Matagorda, Texas, wouldn't be preferable, even if the marsh mosquitos are the size of hummingbirds. Maybe I'll pack it in and move to a Gulf Coast beach shack or, better yet, a thatched hut on the cliffs above La Jolla Cove. Life ain't supposed to be fair, is it? If it was, Elvis would still be alive and all the impersonators would be dead.

The major emphasis in this unit is the C/L crime of larceny. (The FBI reports 5,971,647 cases of larceny/theft in 2006.), the legislatively enacted extensions (embezzlement and false pretenses) of property crimes in the C/L days, and the  modern day derivations of those property crimes from the C/L days, e.g., TPC Sec. 31.03 and MPC Article 223. From the historical standpoint, in the ages prior to the rise of the English C/L, advanced societies, such as the Romans and Greeks, apparently treated interference or infringement with most property rights (theft at night and stealing of livestock were two notable exceptions) as civil torts with civil damages as the remedy. The English judges changed the equation when they created larceny and made it a  capital offense with death as the only punishment. 

The professor gave us some short-answer questions re property crimes on one of the quizzes. If he gives you this quiz I'm probably ruining it for you by giving you the answers, but so what. Here's my take on them. The first question involves A borrowing B's car with permission and subsequently deciding to permanently keep the car. Is it C/L larceny? I say "No." In the original taking, there was no trespass to B's possession. The taking was done consensually and without any fraud and, thus, was done by legal right. Remember, larceny is the trespassory taking and carrying away of personal property of another with intent to steal. A trespassory taking means a wrongful taking or a taking without legal right. A taking may be trespassory even though it was done with innocent intent, e.g., the old bromides of mistakenly taking someone else's umbrella or briefcase. In the prof's hypo, the crime might be embezzlement - the unlawful conversion of another's property by one in lawful possession. The second  question about the fraudulent renting of the car is C/L larceny, in my opinion. It seems like it would be larceny by trick under the approach first recognized by the old English C/L Pears case; consensual possession does not pass. The C/L courts said that the possession that A got was trespassory. It's clearly not false pretenses because the car rental company did not intend to convey title to the crook.[Note: This exact question was on the 2008 final; half the class said it was false pretenses. One group always makes it possible for the others to be in the top half of the class.] On the third question about the building, I say there probably wouldn't be C/L larceny because the object is too heavy to be moved. Since asportation is an element of C/L larceny, it would be virtually impossible to prove that element. Asportation is the core concept of the "carrying away" requirement. Personal property needs to be movable. Also, one might even argue the the statue is real property in the sense that it is permanently affixed to the land. Even if you could budge it - you cannot exercise dominion and control over it. Real property, of course, could not be the subject of C/L larceny. (We saw that real property can be the subject of theft under TPC 31.03.) On the fourth question, about the car wash and tire rotation, I say that would not be C/L larceny. My reason is that UCL says that services were not considered to be subject to larceny at C/L. Personal property had to be tangible. Legal documents and choses-in-action such as contracts, deeds and legal causes in action, were not tangible property; they were merely evidence of property rights. Taking advantage of services (a taxi-ride or a wild night in a Motel Six) was not considered taking personal property under the C/L. Of course, theft of services is a crime under MPC Section 223.7 and TPC 31.04. The fifth and sixth questions, about larceny of animals, take us again into the issue of what is personal property. I had to look this one up in UCL5th Section 32.06[A] p. 563. My answer is "Yes" to the cow and "No" to the dog. Property is typically of two types - (1) Real and (2) Personal.  It seems that, normally, personal property is anything of value which is movable and capable of being carried away. At C/L, this would include animals, but not wild animals (those which belong to no one) or animals of a base nature. Base animals such as dogs and cats (household pets) and wild animals, such as foxes, fall into the non-personal property category. [I wonder what those C/L folks thought about a law that said the family dog was an animal of base nature. I'd be mighty upset at anyone who tried to steal Merle, my dog.] My answer to the seventh question about theft from a thief  is "Yes."  There is still a trespass to possession when a thief steals stolen property from another thief. [Note that the definition of owner under TPC Section 1.07(35)(A) includes a person in unlawful possession of property.] I noticed that stolen property and contraband (drugs) were also considered as personal property for purposes of larceny. The eighth question about the borrowing of the car without permission seems to be the trickiest. Unlike the first question, I think this is larceny. Under the C/L doctrine of "continuing trespass," borrowing the car without permission was a trespassory taking (unlawful interference with the right to possession) even though it wasn't larceny at the time the car was borrowed without permission. Under this continuing trespass doctrine, the trespass to the property (the car) was deemed to continue as long as the trespasser had the property without permission. Thus, when A subsequently decided to keep the car permanently, a required element of C/L larceny, his intent to permanently deprive, i.e., intent to steal, was deemed to be contemporaneous with the trespass. Voila, you have larceny! Remember that the C/L required the mens rea (intent to permanently deprive) to occur contemporaneously with the actus reus (the trespassory taking). The ninth question about finding the lost wallet was not C/L larceny in my opinion. My reason is that for the finder of lost property to be liable for C/L larceny, the finder, must have formed the intent to keep (and thus deprive the owner of) the lost property when he found it. [Remember that UCL tells us that in the case of lost, as opposed to mislaid, property there's got to be some indicia of ownership that would help the finder trace down the owner.] On the tenth question, I concluded that it was not C/L larceny because B intended to transfer title and possession to his money to A, rather just possession. So, A obtained title and possession to the money. At C/L, the victim of the crime of false pretenses must intend to pass title or both title and possession for false pretenses to exist. The professor told us that C/L courts held that there was no larceny when both title and possession or just title to the property was obtained by the con-man based on a material misrepresentation of a presently existing fact of monetary significance. Instead, this was deemed to be the statutory offense of obtaining property by false pretenses. However, if A had induced B to part with the property, e.g. $, for a specific purpose, e.g., to bribe another particular person (C), it might be held to be C/L (trespass to possession) larceny rather than false pretenses because title to the property was intended by B to pass only if the purported and conditional goal, e.g., the actual bribing of C, was actually achieved.

I noticed a couple of other things that might come up. As the  C/L  developed, if the value of the stolen property was less than 30 pence (the value of a sheep), no death penalty could be imposed for larceny. Otherwise, death was the punishment for larceny. Wow! On the question of the punishment level for the modern day offense of theft, in most states the actual or replacement value of the stolen property is used to determine the grade of punishment. If I am understanding the reading correctly, in Texas and under the C/L, it is not what the thief  thinks the value of the property is, but what its actual value is that counts. Under the MPC, it looks like mistake of fact can work to the benefit of the thief when the thief thinks he is getting something worth less than it actually is, because the thief is liable for the value of what he thinks he is taking.

The reading for this time centered on larceny. It looks to me like larceny at C/L focused on the concept of a trespassory taking of (tangible) personal property out of the possession of another with intent to permanently deprive the owner of the use or benefit (value or enjoyment) of the property. Notice that larceny happens very quickly! Even though larceny is designed to protect against permanent deprivation, as evidenced by the fact that intent to temporarily use property without intending to permanently deprive is not larceny, the law doesn't wait around to see if, in fact, the owner is permanently deprived of his property. Otherwise we might have to wait until the owner died or the property was used up. So larceny exists even though the goods are not permanently kept from the victim. Indeed, they may be restored to the owner very rapidly if the larcenist is apprehended shortly after the larceny.  Apparently, if the D has obtained lawful possession of V's property, D's later use or conversion of the property can't be a trespass to V's possession and, thus, cannot be C/L larceny. We'll talk more about the statutory crime of embezzlement, first created in England in 1799, in the next unit (23), but this statutory crime created back in the C/L days seems to involve the conversion to the defendant's use of another person's (the owner's) property, possession of which has been lawfully obtained by the defendant. There's also a distinction between C/L larceny by trick and a third statutory crime, false pretenses, which was also created by English statute back in 1757; false pretenses appears to be a property crime involving the obtaining of property by deceit. I got the impression that false pretenses differs from larceny by trick in that in cases of false pretenses the owner intends to give up title or title and possession; whereas, in cases of larceny by trick the owner intends to give up only possession of the property.

As to C/L larceny, the reading involved some fictions that C/L judges entered into  to stretch the concept of larceny. One of the doozies was the so-called "breaking bulk" doctrine which seems to a special rule employed against carriers (freight haulers akin to modern day truckers); the doctrine said that if the carrier broke into packages(containers) that had been delivered to the carrier for shipment, this breaking into the contents of the container would be considered as a trespass for purposes of larceny. Whereas, if the carrier took the whole unopened package and sold it unopened, it was not within this doctrine of breaking bulk. Another fictional concept had to do with servants (employees); servants were viewed as having only custody of property entrusted to them by the master (owner); "constructive possession" supposedly remained with the master (owner); so, a taking of the master's property by the servant was also viewed as a trespass to the master's possession. This is why larceny by servant was one of the ways C/L larceny could happen. [Note that when the servant received possession property from a third person and kept it for his own use, it was not considered larceny by the C/L judges; this was the reason why the Parliament passed the early 1799 embezzlement statute to plug the gap in larceny law; note that embezzlement was a misdemeanor in those days; so embezzlers didn't get the mandatory death sentence reserved for convicted felons.] The so-called larceny by trick was another of the ways one could commit C/L larceny. This offense, arising from Pears' Case in 1779, is where the larcenist uses trickery (fraud) in obtaining possession (only possession, not title) of the property; the trick (fraudulent  misrepresentation) is used to induce the owner to consent to the transfer of possession to the larcenist, but the consent is ineffective because it is based on fraud. Since, the initial taking based on trickery is based on ineffective consent, C/L viewed the taking as a trespass to possession for purposes of larceny.

There is some material in UCL that I must read about lost, mislaid and misdelivered property. If at the time of finding, the finder of lost property knew or could reasonably determine who the owner of the property was, i.e., there was a reasonable indicia of ownership, and intended at that time to take the property and permanently deprive the owner of it, the taking was considered as trespassory, and the finder did not get lawful possession. Basically, the C/L viewed the owner in this situation to still have constructive possession of the lost property. On the other hand, if there was no indicia of ownership of the found property, the finder/taker of the lost property was not guilty of larceny (finders keepers). Also, even if there was evidence as to the identity of the owner, there was no larceny if the finder took the found property, intending at the time of the finding/taking to restore the property to the owner. This was true, even if the finder later decided to keep the found property and deprive the owner of it. Apparently, mislaid (misplaced) property is treated a bit differently. Since by definition the owner will come back for mislaid or misplaced property when he recognizes it is missing, the only issue is the taker's state of mind. As to misdelivered or mistakenly delivered property, where the deliverer suffers from a unilateral error in delivering the property to the wrong person, e.g., the laundry delivers V's shirts to D, or delivering too much, e.g., V, the bank teller, misreads D's check and gives D too much money, D is guilty of a tresspassory taking if at the time of the misdelivery D recognizes the mistake and takes the property, e.g., the shirts or excess money, with intent to permanently deprive the owner of the property. See more below re misdelivery.

The concept taking in C/L larceny required so-called "asportation," which seems to simply mean some movement of the property. I also read about something known as "caption," which seems be part of this concept of taking at C/L and  means to exercise of control and dominion over property. [From what I can determine, the MPC does away with the requirement of asportation; it requires proof that D "exercise unlawful control" over the property. See Section 223.2(1) MPC. The TPC also seems to have eliminated the requirement of asportation; it substitutes the requirement that D "unlawfully appropriate" property. See Section 31.03(a)TPC.]

On the element of larceny that requires taking of "property of another," it looks like a person could actually be guilty of larceny of property that he owns if someone other than the owner has lawful possession of the property and the owner has no right to possession at the time. I must remember that larceny is a crime that involves trespass to possession. So, if the law gives a mechanic the right to possession of my car (mechanics lien) until I pay for the mechanical work that she has done on it and I sneak in after closing time and take (trespass to possession of the mechanic) the car (the one I own) without paying the repair bill, I may be guilty of larceny of my own car. Also, since larceny is a trespass to possession and not ownership, it is possible to be guilty of larceny even if the trespassory taking is from a thief, i.e., a person without title to the property who herself stole the property in question.

Here's one I thought up. Suppose there is a bailment where D comes into possession of property by fraudulently representing the use that he is going to make of the property, but D does not intend at the time to permanently deprive the owner of the property. I'm thinking of a situation where D goes next door and asks his elderly next door neighbor if she wants him to take her car and change the oil in it. Assume, at the time, that D really intends not to change the oil but to use the car for a trip to the lake and then to return it to the elderly neighbor. After taking the car based on the fraudulent promise, D decides to keep the car permanently and does not return it. I think this would be C/L larceny, even though D did not intend to permanently deprive the neighbor of the car at the time of the original taking. I think it would be larceny because of the "continuing trespass doctrine." D, the bailee, obtained the property by trespass, i.e., the fraudulent misrepresentation re the use he was going to make of the car. Thereafter, he formed the mens rea of intent to steal, i.e., permanently deprive the neighbor of her car. The "continuing trespass doctrine" seems to say that the original trespass continues until the intent to steal occurs, and, thus, you could have larceny, even though D at first intended to return the car.

Consider the misdelivery of property. Suppose, for example, a new-on-the-job bank teller, V, mistakenly gave D too much money when D cashed his check because the teller misread the date on D's check as the amount. This is not the same as finding lost or mislaid property but there are some things in common. The reading I've done indicates that at C/L if too much property or the wrong property is delivered by unilateral mistake, the recipient (D) can be guilty of larceny if, at the time of the misdelivery, D knew of the mistake as to the misdelivery, i.e, the property is being delivered to the wrong person (recipient) or too much of it is being delivered (amount too much). But the person was not guilty of C/L larceny if the person received the property without this knowledge, and hence without trespass, even if he later discovered the mistake and kept the property with intent to permanently deprive the owner.  Suppose the I go to the drive-in bank and send the teller a $100 check asking for 100 $1 bills. She sends me an envelope  indicating that the package contains the 100 $1 bills.  When I get home , I open the envelope and find that it contains 100 $100 bills. The teller mistakenly picked up a packet of $100 bills rather than $1 bills. If I keep the $10,000, am I guilty of C/L larceny? The mistake was the banks. I didn't know about it at the time the teller sent me the envelope. It looks like this wasn't C/L larceny.  If I had known about the mistake at the time, it looks like it would have been C/L larceny.  

There seems to be a different issue when the mistake relates to the deliverer being mistaken about how much he is supposed to deliver. Suppose I actually owe you $20 but I mistakenly think I owe you $25 and give (deliver) you $25. If I give you $25 instead of the $20 I actually owe, the C/L seems to say that you wouldn't be guilty of larceny if you took the $25, even though you knew I only owed you $20. Why? Because I actually intend to give you the $25, even though I'm mistaken as to the amount of the debt. There's no trespassory taking. On the other hand, if the deliverer is mistaken about what he is delivering, as where two $20's are stuck together,  the C/L said that it would be larceny if you take the two $20's knowing that you were only supposed to receive one. (If this is right, in real life it could be a close question as to whether a deliverer was mistaken about how much he was supposed to deliver or whether he was mistaken about what was being delivered. I need to check to see if the UCL hornbook. discusses this issue)

I like what the MPC says about how the finder of lost or mislaid property or property that has been delivered under a mistake as to the nature or amount of the property or the identity of the recipient (misdelivered). Section 223.5 MPC says the person who knowingly comes into control of such property and who with the purpose of depriving the owner of it fails to take reasonable measures to restore the property to the person entitled to have it is guilty of theft. So, under the MPC, D may be convicted of theft even when the original taking was honest in that D then intended to restore the property, if D later changes his mind and decides to keep the property. The TPC has no corresponding definitions.

We've got a couple of more units on property crimes. So, I'm sure there will be more to learn - more feathers to catch in the tornado.  For now though, I don't have anything more to say to myself. 86



If God is inside me, I hope s/he likes spaghetti with Italian sausage. Cause that's what s/he's getting when today's class is over. Romano's on West Gray is my foster home.

[UCL doesn't have anything to say about RICO. I looked at a bit of RICO material on the Internet, e.g.,  (1 - nutshell and 2 - FAQ re RICO), (3 - U.S. Atty's Manual re RICO), (4 - wiki), (5 - discussion), (6 - summarized), (7 - mail fraud and RICO), (8),  (9 - an anti-RICO article) I also looked at the stuff about RICO enforcement that the feds had to release under the FOIA.  This is briefly what I got out of it.]

This unit briefly considers the federal RICO statutes (18 USC Sections 1961-1968). I'm not absolutely sure why a RICO conspiracy is different from traditional conspiracy under the traditional federal conspiracy law, but it does seem like the only glue you need to link folks to the RICO conspiracy is participation in the activities of an "enterprise" (just about any group or organization, legitimate or illegitimate, whose members act together) through a so-called "pattern" (at least two acts of racketeering activity within ten (10) years of one another, excluding any period(s) of imprisonment) of "racketeering activity" (a list of crimes from a  list of 9 state crimes and about 30 federal crimes, including conspiracy to commit such crimes, occurring over a long period of time) which affect interstate or foreign commerce.  In other words, you are punishing so-called racketeers for what they do or conspire to do with their ill-gotten gains. As I look at the statute, it looks like some of the traditional requirements of a conspiracy like knowing of each other's existence and agreeing to commit a crime (or felony under the TPC) are not required for RICO conspiracy liability. It seems like the issues of wheel and chain conspiracies are not of much importance in RICO, since you can charge people who are involved in different criminal activities, so long as they are hooked up for the purpose of enrichment through a legitimate or illegitimate "enterprise," either in the form of using or investing racketeering income in the enterprise or acquiring or maintaining an interest in the enterprise through racketeering activity, or conducting the affairs of the enterprise through racketeering activity. The kicker is that it is also a RICO crime to agree (conspire) to do any of the above acts.

The RICO law and cases are relatively complex, including things like treble damages for civil RCO cases filed by private parties without having an antecedent criminal RICO conviction, criminal forfeiture of the interests in enterprises infused with the proceeds of the racketeering activity, as well as the RICO proceeds, injunctive relief to order divestiture of the violator's interest in the enterprise and/or dissolution of the enterprise. Any coverage in a first year crimes course will be superficial. The professor told us that the upper-crust layer of criminal defense lawyers and career justice department prosecutors spend years master the scope and nuances of this broad and ambiguous federal statute.

Title 18 USC Section 1962, (color- coded for educational purposes) sets forth the following four prohibited activities:

  • (a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such person has participated as a principal within the meaning of section 2, title 18, United States Code, to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. A purchase of securities on the open market for purposes of investment, and without the intention of controlling or participating in the control of the issuer, or of assisting another to do so, shall not be unlawful under this subsection if the securities of the issuer held by the purchaser, the members of his immediate family, and his or their accomplices in any pattern of racketeering activity or the collection of an unlawful debt after such purchase do not amount in the aggregate to one percent of the outstanding securities of any one class, and do not confer, either in law or in fact, the power to elect one or more directors of the issuer.

  • (b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.

  • (c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.

  • (d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.

Key RICO cases from the USSC include the following: United States v. Turkette, 452 U.S. 576 (1981) holding that the term "enterprise" applies to illegitimate as well as legitimate businesses; Boyle v. United States, 556 U.S. __, 129 S.Ct. 2237 (2009) broadly interpreting "enterprise"; American National Bank & Trust Company v. Haroco, 473 U.S. 606 (1985); Sedima S.P.R.L. v. Imrex Company, Inc. 473 U.S. 479 (1985) in which the USSC stated re predicate acts forming a pattern that "while two acts are necessary, they may not be sufficient. Indeed, in common parlance, two or anything do not generally form a 'pattern.' " ; Fort Wayne Books Inc. v. Indiana, 489 U.S. 46 (1989); H.J., Inc. v. Northwestern Bell Telephone Company, 492 U.S. 229 (1989); Tafflin v. Levitt, 493 U.S. 455 (1990); Yellow Freight Systems, Inc. v. Donnelly, 494 U.S. 820 (1990); Holmes v. Securities Investor Protection Corp., 503 U.S. 258 (1992); Reves v. Ernst & Young, 507 U.S. 170 (1993); Alexander v. United States, 509 U.S. 544 (1993); National Organization of Women v. Scheidler, 510 U.S. 249 (1994); United States v. Robertson, 514 U.S. 669 (1995); Klehr v. A.G. Smith Corp., 521 U.S. 179 (1997); Salinas v. United States, 522 U.S. 52 (1997); Kushner Promotions v. King, 531 U.S. 1050 (2001).

In addition to RICO there is a federal Criminal Street Gangs law (18 USC Section 521) that enhances punishment for members of gangs who commit certain offenses.


Note: I got the impression from the professor that the thing that might be of some importance to us on the exam is the Texas version of RICO that is found in Chapter 71 of the TPC under the title "Organized Crime."  Obviously, it's not in the casebook, but the prof seems to think it is important that we know it exists; I may be able to work it into the Texas discussion on the essay question. I'll keep an eye out for facts that might raise the possible applicability of the Texas Organized Criminal Activity (OCA) crime in situations that involve multiple parties. OCA requires a "combination," which is three or more persons who collaborate in carrying on criminal activities. Federal RICO (above) requires a pattern of racketeering activities. Organized criminal activity requires proof that the members of the combination collaborated in carrying on criminal activities (plural). It's clear from the face of the OCA definition of a "combination" in Sec. 71.01(a) TPC that the members of the combination don't have to know each other's identity, but inferentially the statute suggests to me that they may have to know of each other's existence. Membership in the combo may also change from time to time. There is a long list of target offenses (including conspiracy to commit any of them) that qualify  as organized criminal activity (OCA), so long as you've got the members of the combination committing one of them.  Sec. 71.02 says that it is a crime, with intent to establish, maintain, or  participate in a combination or in the profits of a combination or as a member of a "criminal street gang" for a person to commit  or conspire to commit one of the listed target crimes. The professor told us to look at the definition of "conspire" in  Sec. 71.01 (b) and notice that the legislature put in a goofy requirement that the D and one of the other members of the combo have to each commit an overt act (This would seem to include the two jointly committing  a single overt act.) in furtherance (pursuance) of the conspiratorial agreement.  That makes no sense! But the prof said it has been in the statute since its inception.

Under Sec. 71.02(b) TPC, the punishment for the offense of OCA  when the target crime is committed  seems generally to be one higher category than the target crime, except in the case of first degree felonies. The OCA punishment for conspiracy to commit the target offense, under Sec. 71.02 (c), is  the same as the most serious offense that is the target of the conspiracy. [I'm wondering, what if the OCA conspiracy is to commit capital murder? Would OCA then become a capital crime? If so, one could get death for conspiring to do something without doing it.] There's a mitigating factor in Sec. 71.02 (d) TPC for the OCA defendant who renunciates and makes an effort to withdraw from the the combination before the target offense is committed, if the D made a substantial  (thought unsuccessful) effort to prevent commission of the target offense. If the D proves this mitigating renunciation by a POE, the punishment level is the same as the target offense or one punishment level lower in the case of an OCA conspiracy. There's also a complete affirmative renunciation defense to OCA under Sec. 71.05 TPC  where a member of the combination voluntarily and completely withdraws from the combo before certain of the target offenses (but not all of them) occur and takes action that prevents the commission of that offense. Sec. 71.05 (c) and 71.02 (d) seem redundant. [Thank goodness the Texas Legislature hasn't been as clumsy in drafting other criminal statutes as they seem to have been in writing this one.] Here's a brief discussion of organized crime (1) from the law enforcement perspective.

Gotta go find a pillow and saw some wood.

UNIT TWENTY - Vicarious Liability for Acts of Another - Complicity - Aiding and Abetting - Accomplice Liability - Natural and Probable Consequences Rule - Liability for Acts of  Co-Conspirators - Pinkerton Rule - See Silver Bullets III

Okay, senores y senoras, as they say in the Philippine Islands, "Are you ready to pit your cocks?" This refers, of course, to putting your fighting game roosters in the ring to mix it up. This unit is about complicity theory.  This is a concept or theory, not a crime. There are no such crimes as "Complicity,"  "Accomplice," "Aider," or "Abettor." These are simply ways of describing a legal doctrine or set of rules that allow us to determine when someone other than the primary actor who commits the crime can be held criminally liable as a party (accessory, accomplice) to the crime committed by the primary actor, e.g., the triggerman, bomb thrower, robber, arsonist, rapist, etc. Think about  Messr. bin Laden sitting on his thumbs in a cave in Afghanistan while Mohamed, Waleed, Satam, Abdulaziz, Fayez, Ahmed, Hamza, Saeed, Ziad, Khalid, Hani, Nawaq, and the rest of their Saudi crew guided the hijacked airliners into the World Trade Center and Pentagon, killing almost 3000. If our country could ever capture the elusive Osama and put him on trial (a concept with a lot of procedural hurdles and, probably to the US military, not the preferred method), could we try him as a party to the substantive crime of murder, aside from the inchoate offense of conspiracy to commit murder and terroristic crimes? If so, we would be using complicity theory to make one person (Osama) liable for the conduct of others because he intentionally aided or encouraged the others (the suicide bombers) with the intent or purpose to assist commission of the murders.  If you don't like that hypo, could we think of it this way: Would Osama be like the guy who holds the ladder and is liable for the crime committed by the burglar. Probably not, because Osama appears to be more of a mastermind whose aid occurred before rather than during the actual commission of the 9/11 hijackings and murders - thus, making him more like a common law accessory before the fact. Of course, modern penal codes, like TPC Section 7.01(c) and MPC Section 2.06(7),  do away with the distinctions between principals and accessories before the fact (Texas uses the word "accomplices"). [Note: Instead of pursing bin Laden and his associates, ex-President Bush2 took us to war against Iraq, a county 1/10th our size that was not in any way involved in 9/11 and that presented no threat to our national safety; in the process, in the name of Bush2's so-called war against terror, for six years the US invasion and occupation visited death every week on Iraqis in numbers roughly equivalent to the number of casualties suffered in the 9/11 attack. See the casualty number in Bullets VII]

If you get a chance take another look at "Fargo" shortly after you read about how the Pinkerton Rule works. Ask yourself what crimes Jerry, the husband of the kidnap victim, would be liable for under Pinkerton. Note that Texas has a form of the Pinkerton Rule of coconspirator liability for felonies in Section 7.02(b) TPC; the MPC rejects the Pinkerton Rule; common law makes use of the natural and probable consequences rule of accomplice liability rather than Pinkerton. Notice how the Pinkerton Rule can make co-conspirators liable for collateral felonies committed by one of their number. Watching Fargo may help you visualize how complicity law, based either on accomplice liability or membership in a conspiracy, encompasses the theories for making people criminally liable for conduct of another person. They sometimes call this  "vicarious criminal responsibility for the conduct of another."  This is different from what we've been studying up to now, in that most of the cases thus far have involved defendants being accused and held responsible for their own conduct and not for someone else's. Spend a bit of time constructing your own hypos and try to solve them using Texas complicity law, which is found in TPC Chapter Seven, only half-a-page of material but important stuff; do the same with MPC complicity theory in Sec. 2.06, about a page of material. Read UCL's explanation of the important aspects of common law and MPC complicity law. 

Check out State v. Parker, 164 N.E. 2d 633 (Minn. 1969), a case where Larry the law student was rolled by Parker's companions. Parker claimed that he merely watch. Larry said Parker was a doer. It seems that the general rule of complicity theory is that mere presence at the scene of a crime, standing alone, is not enough to make one a party.  I assume that if Parker had by words encouraged his buddies to mug Larry by saying, "Kick his law-studying fanny " or if he had solicited them to roll Larry, Parker would be considered as a complicitor, accomplice, or aider and abettor (all meaning the same thing to me) to his buddies' conduct of rolling Larry.  Parker would also be an aider or accomplice if, with intent or purpose to assist his buddies in rolling Larry, Parker had engaged in conduct that was intended to help them, e.g., supplied them with a weapon to use in the robbery. The Parker case indicates that there may actually be situations where presence of the aider/accomplice at the crime scene is an act meant to encourage the doer. (Parker was such a case) In that case, presence may be a sufficient act for accomplice liability. Look at  UCL, Section 30.04 [3].

As I understand it, there are a several circumstances where you might want to make people vicariously liable under what I call regular complicity theory.  As I look at MPC 2.06, I see four situations that involve complicity. For example,  where D1 uses an innocent person, e.g., one with no mens rea or an irresponsible person (a child or insane person), as a non-accomplice/aider instrument  to commit the crime.  Someone came up with the idea of giving a six-year-old kid (innocent and non-responsible) a stick-up note and sending him into a bank with it. Also, complicity applies when D1 solicits a the doer to commit the offense, aids or attempts to aid another person in the planning or commission of  the offense. (Unlike the common law, this would include an ineffectual effort to aid the doer.)  Complicity also applies under the MPC where D1 has a legal duty to prevent the crime being committed by another person and D1 fails to do so, e.g., a cop who whittles while he watches a robbery transpire or a parent who, with intent or purpose to injure, watches without interfering as his child is abused. Another instance where you find complicity under MPC 2.06 is where a law explicitly establishes complicity liability; there may be statutes under which the definition of a crime makes D1 accountable for the acts of the doer crime, e.g. the MPC F/M rule (Section 210.2 (1) (b)) with its complicity feature, making all the accomplices to the felony liable for murder; another example could be where a statute criminalizes the act of aiding, e.g., aiding suicide statutes under the MPC and TPC. 

The MPC Sec. 2.06(3) accomplice law does not make an accomplice (C1) guilty of an offense committed by a doer (C2) in carrying out the plan, unless the accomplice (C1) had the "purpose of promoting or facilitating the commission of the offense." C1's mere knowledge of the collateral offense that  C2 was going to do would not be sufficient to make C1 liable for the collateral offense C2 did without additional proof of C1's purpose to promote or facilitate the offense committed by C2. What we are looking for is two things: (1) helping the doer to commit the offense by soliciting, aiding, agreeing to aid, or attempting to aid and (2) the intent or purpose to promote the target crime. Similarly, TPC Section 7.02(a) requires that the accomplice act with intent to promote or assist the commission of the offense. Obviously, informants and undercover agents who are trying to enforce the law don't act with intent to promote commission the offense. The TPC, Sec. 7.03 (2) indicates that it is no defense that the person for whose conduct the complicitor is responsible has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense, or is immune from prosecution. MPC Section 2.06 does the same. [Note: The MPC/TPC approach of not making a person a party liable simply because of knowing participation in a crime makes me think of the "Fargo" plot and the role that the mechanic, Shep Proudfoot, played in hooking the husband, Jerry (William Macy), up with the two hoodlums, Carl (Steve Buscemi) and Gaer (Peter Stormare), who committed the kidnapping of Jerry's wife. Was Shep an accomplice to kidnapping? Shep obviously helped connect the mastermind with the guys who would do the job. But the issue to me is whether Shep just incidentally provided the information to Jerry in an offhanded way or whether he did it with the purpose or intent of promoting or facilitating or assisting in the commission of the kidnapping. Could one argue that Shep didn't have a "stake in the action"? Is this a situation where someone knowingly helps another person commit a crime without any intent or purpose to promote the commission of the crime. Dressler talks in UCL about purpose v. knowledge and the policy arguments in favor and against liability in connection with both conspiracy and accomplice complicity. This reminds me of the gunshop owner who sells someone a gun knowing that person plans to use it in a robbery. Is the gunshop owner liable as a party to robbery if he had no purpose to promote the crime and simply sold the gun as he would to any customer? Of course, if Shep was a conspirator (like the husband Jerry) to the felony kidnapping for ransom plan, it would be necessary in a jurisdiction that has some form of the Pinkerton Rule, e.g., Section 7.02(b) TPC, to ask if Shep was liable for one or all of the collateral murders under the theory that they were foreseeable crimes committed in furtherance of the conspiratorial purpose.]  

Another thing about the MPC is that it seems to expand vicarious liability of an accomplice by making a person an accomplice under MPC Sec. 2.06(3)(a)(ii) if, acting with intent to promote or facilitate commission of the offense, he attempts to aid another person in planning or committing the offense. That means that there is liability not only for aiding but also for attempting to aid. So, even if D1 is totally unsuccessful in his attempt to aid D2 to commit robbery, if D2 goes forward and commits the robbery, D1 is liable for the robbery as an accomplice. Texas seems to have the same language of "attempts to aid" in Section 7.02 (a)(2). So, the MPC and TPC are the same on this.  Regarding ineffectual aid, the traditional C/L approach is that the aider/accomplice's actions must actually aid the doer in some way, even though it isn't necessary to the doer's success; see Dressler UCL, which also makes the point that, if there is actual aid, the quantity and quality of the actual aid is irrelevant; the actual aid  suffices as aid no matter how trivial it may be. [This could be a good one for an objective question.]

From what I can determine from the general law regarding complicity, it isn't required for complicity that the aider's efforts actually contribute to the commission of the crime in any causal "but for" way.  Also, the law doesn't seem to require that the doer even know about the aider's assistance for the aider to be liable. A lady in the class gave a good hypo about a customer in a bank that is being robbed who, on his own impulse and without the robber's knowledge, throws his coat over the bank video camera with the purpose of promoting the offense by preventing the robbers from being identified. Under this theory, the customer is liable for the robbery as an aider/accomplice even though the robbers never knew about the aid rendered.

What about withdrawal  by an accomplice/aider before the doer commits the offense? It's important to note that the concept of withdrawal or abandonment with regard to liability for the target crime is a completely different concept than the concept of renunciation of an inchoate offense,which is just an affirmative defense to the inchoate offense under the MPC and TPC and not at all under the C/L.  With regard to withdrawal by an accomplice as some sort of defense to being liable for the crime committed by another, it looks like the MPC Sec. 2.06 (6) (c) says that a person is not an accomplice in an offense if she terminates her complicity prior to the commission of the offense and either wholly deprives her complicity of effectiveness in the commission of the offense or gives timely warning to law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense. UCL5 says that many courts hold that a person who provides aid or assistance to another for the purpose of promoting or facilitating a crime, but who later abandons or withdraws from the criminal endeavor can avoid accountability for the subsequent criminal acts of the primary party.  It seems that the aider has to communicate his withdrawal to the principal and make a good faith effort to neutralize the effect of his prior assistance. The TPC says nothing about the effect of withdrawal on the complicitor's liability.

This unit will also consider whether you can have accomplice liability for crimes of recklessness or negligence. Obviously, the doer doesn't intend such an offense or commit it purposefully.  So, how can an accomplice intend the crime? The approach that seems to be recognized as the best is that there can be accomplice liability for negligent and reckless offenses, if: (1) the accomplice had the intent or purpose to aid the doer in the conduct that forms the basis of the offense and (2) the accomplice had at least the same level of mental culpability required for the offense, i.e., the accomplice was reckless or negligent, as the case may be, concerning the conduct or result. UCL 5th explains this concept nicely in Sec.30.05[B][3] stating that the majority rule is that accomplice liability is allowed as long as the accomplice has "(1) the intent to assist the primary party to engage in the conduct that forms the basis of the offense; and (2) the mental state - intent, recklessness, or negligence, as the case may be - required for commission of the substantive offense."  The MPC, Sec. 2.06(4), seems similar regarding accomplice liability for result-oriented crimes, i.e, the accomplice in the conduct causing the result is an accomplice in the commission of the offense if he acts with the kind of culpability, if any, with respect to that result  that is sufficient for the commission of the offense. (This mens rea could be recklessness or negligence.) Texas case law also seems to support the view that one can be an accomplice to crimes of recklessness and negligence. See Mendez v. State, 575 S.W.2d 36 (Tex. Crim. App. 1979) holding that one could be vicariously liable as an accomplice to reckless manslaughter.

What about liability of parties for collateral crimes of other parties? The typical approach to complicity is to make a person liable for the offense he aids with the purpose of promoting the offense. But the C/L recognizes something known as the "natural and probable consequences rule." UCL5th explains the NPC rule on p. 483. This rule makes an accomplice/aider liable not only for the target crime that he aided but for other collateral crimes that are the natural and probable consequences of the doer's effort to commit the target crime. This is a foreseeability based test. Remember that this C/L rule is based on accomplice liability and not on conspirator liability. Of course, if the doer is a "wild hare" and goes down paths that are not foreseeable, e.g., the bank robber who sexually assaults customers during the robbery, the aiders/accomplices shouldn't be responsible for rape, unless the rape was foreseeable.

The Texas version of the Pinkerton Rule:  [Note: This is important to understand, because I will need to be on the look-out for a Texas Pinkerton Rule scenario on the essay.] There is another way that many jurisdictions make people liable for what others have done. I think of it as co-conspirator complicity. It is based on one being a conspirator rather than an accomplice.  It is known as the Pinkerton Rule. UCL5th talks about the Pinkerton Rule in Section 3.08, p. 493-495. The traditional old C/L and the MPC don't follow the Pinkerton Rule, but Texas does. The rule casts an enormous net of liability for those who join a conspiracy. The Texas Pinkerton Rule is in Sec. 7.02(b) TPC, and it's important to know for the exam. The way I understand the Texas Pinkerton approach to complicity is that it is based on the existence of a conspiracy. Of course, we already know that conspiracy is an inchoate crime, but here it is also a basis for making each one of the conspirators liable for certain collateral crimes committed by other conspirators. This is in addition to the traditional complicity rules making one an accomplice in Sec. 7.02(a) TPC. Under the Texas version of the Pinkerton Rule, it looks like you can make D1, a party to a conspiracy to commit one felony,  liable for a collateral felony committed by fellow conspirator D2, even though conspirator D1 never did anything at all to encourage, aid, and/or abet, or assist co-conspirator D2 to commit the collateral felony. All that is necessary is that the collateral felony be done by D2 in furtherance of the original target felony and that the collateral felony be one that should have been anticipated by D1 as a consequence of carrying out the original target felony. So, what is different about Pinkerton complicity as compared with the normal aider, abettor, accomplice, etc., rule ?  For one thing, D1 can be liable based on the fact that he's a mere conspirator under Pinkerton for the collateral crime by D2 even though D1 did nothing to encourage, aid and abet, and/or assist or attempt to assist D2 to commit the collateral felony other than simply agree to commission of the original target crime. Even more important, D1 is liable for the collateral felony in furtherance of the conspiratorial purpose despite the fact that D1 has no mens rea other than negligence, i.e., he should have anticipated (foreseeability) that  the collateral felony might occur.  If you are trying to use regular complicity theory, you can certainly question whether merely agreeing to enter the conspiracy is sufficient to constitute encouragement; also, even if it is encouragement, under traditional complicity theory, e.g., TPC Sec. 7.02(a)(2), you would still have to also show that  D1 acted with "intent  to promote or assist the commission" of the collateral offense. That's not easy when the collateral felony was never even discussed as part of the conspiracy plan. Remember on the exam, if you are applying the Texas Pinkerton Rule, it only works if there is a conspiracy between D1 and D2 to commit one felony and the collateral crime committed by D2 is also a felony. [The problem I have personally with Pinkerton is whether it is good policy to allow conviction under this broad Pinkerton concept where you might have a collateral life-in-prison felony offense charged against a co-conspirator based on simple proof of his negligence in failing to foresee the collateral felony that was done by his coconspirator in furtherance of the original target of the conspiracy.  In a way, it's kind of like complicity in C/L F/M where there is strict liability for murder for all the felons. Before the terrorist attacks of 9/11, I would probably have unabashedly opposed it as over-criminalization. Now, the spineless, cowering part of me, fanned by people like ex-VP Dick Cheney, leans toward having an arsenal of vicarious responsibility laws to use against suspected blood-thirsty critters in any domestic investigations and trials that might be held in connection with terrorist activities. But hey, I went to Home Depot and bought 12 rolls of duct tape and 5 rolls of plastic sheeting after Tom Ridge, our former Bush2 director of a secure homeland, issued that advice to protect against terrorist gas attacks. Who knows, I may eventually need it if our "preemptive war" against to destroy the Iraqi Army's make-believe stock of "weapons of mass destruction" didn't get all of the secret supplies of imaginary nerve gas!]

At C/L they had defined four categories that described the role of parties participating in a felony crime, e.g., principal in the first degree, principal in the second degree, accessory before the fact, and accessory after the fact. UCL and the casebook lay out the old C/L division of parties. I'll look at one of those sources to sort that out. See Silver Bullets III. Apparently, the modern trend now is to have statutes like MPC 2.06, 18 USC Sec. 2(b), and TPC Sec. 7.01(c) that do away with the old distinctions between common law parties. In effect, folks who would have been principals in the first and second degree and accessories before the fact at common law are now all treated as principals (not "principles"). That means the punishment ranges are the same for all the parties. The punishing authority (judge in most jurisdictions, judge or jury in 8 or 9 jurisdictions like Texas) decides what the precise sentence should be for the particular offender. In some cases, the accomplice/aider and abettor, e.g., mastermind shark, may deserve more punishment than the mullet doer. When you treat all the parties as principals, you don't have to worry about order of trial or who gets charged under what label.  For example, you don't have to convict the "doer" in order to then prosecute the aiders and abettors/accomplices as you had to do under the C/L.  You don't have to worry whether you mischarged a guy as an accessory when the proof shows him to be a principal. With regard to the C/L accessory after the fact, the modern view is to treat them as less blameworthy than the other types of parties and charge them with a specific tailor-made crime such as harboring a fugitive or obstruction of justice or, as in Texas, hindering apprehension of a fugitive. See TPC Sec. 38.05

Notes to myself:
+ When D coerces (uses duress) X to force X to commit a crime, X is considered as an innocent instrumentality. So, on the exam, if  this happens, I've got to remember to talk about the defense of duress re X, but I also have to talk about the liability of D (He'd be a C/L principal in the first degree.) for the crime using X as an instrumentality. UCL talks about some problems this raises.
+ The aider/accomplice/complicitor can be vicariously liable under the C/L even though the doer would have committed the offense anyway, i.e., without the aider's assistance.
+ I need to check out this web site on the issue of helping a person to commit suicide. Should doctors be allowed to do it under controlled circumstances?   

This stuff is beginning to look like gobbledygook. I'm booking it to the local ice house, where I will ponder whether there is ever such a thing as a guilty bystander. If so, would it be unlike a gruntled postal worker?

UNIT NINETEEN - Inchoate Offenses - Solicitation - Elements of Conspiracy (Agreement, Procedural Aspects, Scope and Object)  See Silver Bullets III

Kid, I wouldn't last 5 minutes leadin' an outfit like that if I wasn't as rotten as hell.
Outlaw Ben Wade     3:10 to Yuma
There's strength in numbers.


Yo, gumby! Let's set the table. Part of this unit will focus on the world class movie "Fargo",  a wonderful tool for learning about the crimes of conspiracy and solicitation.  These two crimes are different from attempt, but they are like attempt in that they are also inchoate (incomplete) offenses that allow punishment for conduct before any harm results.  However, conspiracy and to a greater extent solicitation are more crimes of words than attempt. Take a look at the Blake case.

The crime of solicitation is one that can take place in what might be characterized as the early portions of the mere preparation phase. Of course, solicitation requires a second party who is the subject of the solicitation. [Note: If I'm smart, I will probably want to look at the essay exam question for a solicitation that starts the ball rolling. If things start with solicitation, and I start my essay answer off with conspiracy, I will have to double-back to talk about solicitation out of sync. I should try to keep my answer chronological  to avoid looking scatter-brained.] English common law made it a misdemeanor for a person to solicit, incite, request, encourage, recruit, induce, entice, command,  or counsel another to commit a felony or a misdemeanor of an aggravated nature. American C/L limits the target to felonies. Indeed, most statutes typically use solicitation to punish only a few specified serious felonies. Solicitation is a specific intent crime at C/L, just like the other inchoate crimes. Notice the the general solicitation statute in Texas, Sec. 15.03 TPC, only applies to solicitations to commit capital murder and first degree felonies. [I need to remember this for the exam.]

The crime of solicitation occurs even though the solicitation is not effective, e.g., the person who is solicited declines the solicitation.  Think about it, this verbal crime occurs even if no further action or effort toward the target takes place. No substantial step is necessary as in attempts, though it is not precluded. Sec. 5.02(1) MPC broadly defines the crime as solicitation to commit any crime (this expands the C/L); the solicitor has to act with the purpose of promoting or facilitating the commission of the crime. Sec. 5.02 (1) also seems to make it an offense to solicit another person to attempt to commit a crime (This would cover a  situation where the solicitor knew the substantive crime was impossible for the solicitee to commit as where the gun was incapable of firing.) So in this instance the MPC makes it possible to have a crime that would be viewed as solicitation to attempt a crime. UCL talks about this and gives the example of D1 soliciting D2 to pick what D1 knows is the empty pocket of V. If D2 does it, D2 is liable for MPC attempted theft (or attempted larceny at C/L), and D1 would be guilty of solicitation of attempted theft under the MPC (but not guilty of solicitation of larceny at C/L because D1 knew that the pocket was empty and did not intend that D2 commit larceny).  It's important to note that the TPC, Sec. 15.05, tracks the C/L's traditional policy of barring use of an inchoate offense as the object offense for another inchoate offense and says you can't have an inchoate crime to commit a inchoate crime, i.e., "Attempt or conspiracy to commit or solicitation of, a preparatory offense defined in this chapter is not an offense." Sec. 5.02 (2) MPC also seems to make a solicitation out of what  might otherwise seem to be an attempt to solicit in that it is immaterial that the solicitor fails to communicate with the person he solicits to commit a crime, if his conduct was designed to effect such communication. That would mean when D1 orally solicits X, who happens to be deaf and doesn't hear the solicitation, you could still have solicitation, even if X didn't hear it. Also, if D1 mailed a letter of solicitation and the letter was never delivered, you could still have a MPC solicitation.

I need to remember the "do-it-for-me-not-with-me" limitation of C/L solicitation.  This is not a limitation under the MPC and TPC. The latter two jurisdictions also provide a renunciation defense in Sec 5.02(3) MPC and Sec. 15.04(b) TPC. Query: Is there a criminal solicitation and/or attempt in this VIDEO clip from "Blazing Saddles"?

Because solicitation can be a crime of words, we have to be aware of the First Amendment implications of it. The USSC has indicated that free speech will normally protect statements that advocate violence, if the speech is unlikely to incite or threaten imminent lawless harm. This is probably enough info about solicitation.  Silver Bullets and UCL have more precise material about solicitation.

What about the crime of conspiracy? Even when a conspiracy requires an overt act in furtherance of the conspiracy, as it does in Texas, you are still looking at less conduct than is typically required for an attempt, e.g., you never have to have enough to equal what you would have to have for a substantial step or perpetration beyond mere preparation of an attempt. The MPC requires an overt act in furtherance of the  conspiracy, except when the target crime is a 1st degree or 2nd degree felony (the most serious felonies). The overt act can be a legal or illegal act; so long as it is in furtherance of the conspiratorial purpose, it will suffice.  You only need one overt act by any of the conspirators. [ What happens if a conspirator pulls out (withdraws) before any overt act is committed? In overt act jurisdictions, it seems like that person would not be considered as a conspirator, since he was out of the group before the conspiracy came into existence, even though he originally was a party to the agreement.] Of course, the C/L doesn't even require an overt act; the mere preparatory act of agreeing to commit a target crime is sufficient at C/L, wholly  aside from any question as to whether any of the parties commit any overt act. [ In light of the single terroristic act against our country on September 11, 2001, I think I can see why it' may be a good idea to have these preparatory crimes. Another reason to fear group activity is the rise of gangs, the modern day Mafia, except more vicious. See the 2006 documentary World's Most Dangerous Gang (VIDEO). These incomplete crimes would allow the authorities to step in early-on and arrest and convict a person before the harm was done. If some egg-sucking ferrets are planning to blow up a building, I want the cops to be able to step in and grab them, and I want that to be a crime (conspiracy to commit a terroristic act or to murder or to destroy property) we can take to a jury. And, if one corn-cobbing crotch cricket is taking a substantial step (attempt to murder) to poisoning a public water supply or blowing up a nuclear (or is it "newquelur"?), I want the law to be able to stop the drooling dirtbag before he gets near the water or the plant. I guess those Washington scare tactics since 911 have worked on me? I see a terrorist behind every tree. On the other hand, the conspiracy and solicitation crimes are basically crimes of words, and I've always believed in free speech.  Ben Franklin said those who "can give up essential liberty to obtain a little temporary safety deserve neither liberty or safety."  Maybe it's at least a good idea to have an overt act requirement requirement attached to any conspiracy crime as the TPC does with every conspiracy crime, or at least when the target crime is not very serious, a la the MPC approach. 

Conspiracy to commit a target crime involves an agreement between two or more persons to commit the  crime. In Texas, the target crime has to be a felony. Under the MPC, it just has to be a crime. At modern C/L, the conspiracy crime does not merge with the target crime. So, one can be convicted of and punished for both the target offense and the conspiracy to commit the target offense.  The general rule under the MPC seems to be that the conspiracy and the target merge, in that the D doesn't get double punishment for each; the one exception is when the prosecution proves that the conspiracy involved the commission of other offenses that are not yet attempted or committed. See Sec. 1.07(1)(b) MPC. [Note: I need to remember that any time a problem has two or more persons participating in a planned or perpetrated crime, I should think about solicitation and conspiracy, as well as the target offense. In those multi-party cases, I also need to think about vicarious liability (based on complicity theory) that one actor may have for the crime(s) committed by another, either as an accomplice (aider & abettor) or under the Pinkerton approach as a co-conspirator, but that is for the next Unit, Number Twenty.]

The C/L doesn't recognize renunciation as a defense to a conspiracy charge (or, for that matter, solicitation or attempt either).  Texas, in Sec. 15.04 TPC,  borrowed from the MPC versions of renunciation in Secs. 5.01(4) (attempt), 5.02(2) (solicitation), and 5.03(6) (conspiracy), and does recognize renunciation as an affirmative defense (BOP on the D by a POE) to conspiracy, attempt, and solicitation.  Of course, to have renunciation available as an affirmative defense the accused must make sure the target crime is not achieved. Remember, this sort of renunciation only applies to inchoate offenses.

There is also a concept known as withdrawal that focuses on what a conspirator has to do to be able to bail out of a conspiracy before the other conspirators hit the target and be able to claim the withdrawal as a defense to the subsequent commission of the target offense (not the inchoate offense) by his co-conspirators. The MPC Sec. 5.03(7)(c) indicates that one can either inform his fellow conspirators or notify authorities that he is bailing out, i.e., that he is no longer a member of the conspiracy. When this is done, the withdrawing conspirator is not responsible for the future acts of his co-conspirators, i.e., he won't be responsible for the target offense. The C/L rule seems to be that a conspirator can withdraw from a conspiracy and cut off liability for future criminal acts of his co-conspirators if he notifies his fellow conspirators that he is withdrawing and does so. Of course, the withdrawing conspirator is still liable for the conspiracy crime.

Notice that the law of conspiracy allows an agreement to occur either expressly or by implication (implicitly). So, I can look for an agreement based on what the parties to it do and/or say that is indicative of their intent to agree. Suppose a guy shows up to load a washing machine on a plane that is supposed to go to Columbia and bring back a load of marihuana. If that's all he does or says other than smiling at a DEA undercover agent and indicating that he would be at the off-loading site, is he part of a conspiracy to smuggle marihuana. The 5th Circuit said "yes" in a case called United States v. Alvarez, 625 F.2d 1196 (5th Cir. 1980) (1), a borderline case on how little by way of word or deed it takes to make one a conspirator. Take a look. Whatever the rule, it seems like it should require unambiguous evidence that the person intended to agree to the conspiratorial purpose before he is considered by law to be a conspirator.

Also, it is not required that all the parties to the conspiracy know each other or meet; it's good enough if they know each other exists. See MPC Sec. 5.03(2) which says you don't have to know their identity as long as you know that the person you have conspired with to commit the crime has conspired with other persons to commit the same crime. So, if D1 conspires with D2 to commit the crime and D1 knows that D2 has conspired with D3 to commit this crime, even though D1 does not know the identity of D3, D1 is viewed as having conspired with D3.

As to a D who tries to join an already existing conspiracy, can a late joiner become a member of the conspiracy? Yes. It appears that additional conspirators can jump on the train (join the conspiracy) after it has left the station, just as long as the object (target) of the conspiracy hasn't been completed when the late joiner comes aboard. One thing concerns me. Suppose D joins late. Is D responsible for earlier crimes committed: (1) by his fellow conspirators under the Pinkerton rule (Texas version of the Pinkerton Rule - TPC Sec. 7.02(b)) that makes each conspirator liable for collateral crimes (felony only under the TPC) that are committed in furtherance of the conspiracy and that are foreseeable (Texas says - that he should have anticipated as a result of the target felony being carried out) and/or (2) for crimes that are "natural and probable consequences" of the offense to which he is a complicitor ( an accomplice).  The prevailing (majority) rule is that the late joiner is liable for these other crimes that were committed before he joined the conspiracy or became an accomplice. [On this issue joining a conspiracy, it looks like you can be liable in one of three ways: (1) being part of the original conspiracy, (2) being a late joiner, and (3) being and aider and abettor of a conspiracy without being an actual conspirator.]

Texas in Sec. 15.01 (a) requires that the conspirator act with intent that a felony be committed. The MPC Sec. 5.03 (1) requires that the conspirator act with the purpose of promoting or facilitating the crime.  This seems to be the approach taken by most jurisdictions.  When intent or purpose is required by the law, knowledge alone would not seem to be sufficient to establish the mens rea of conspiracy. Remember the case of People v. Lauria, 59 Cal. Rptr. 628 (1967) (1) where Lauria ran the answering service utilized in part by call-girls, i.e., "whores" for the the roughshod among you or "women of mercenary virtue" for the effete. I think you can make a pretty good argument that the law should not make a person like Lauria liable as a co-conspirator for conspiracy (to commit prostitution) or as an accomplice (party) to a crime (of prostitution) just because he knows that some of his customers are putting his otherwise legitimate business services to an unlawful use. As long as he doesn't act with intent to promote or facilitate the crime the fact that he aids it shouldn't make him an accomplice. And as long as he doesn't agree implicitly or explicitly to the crime, he shouldn't be liable as a co-conspirator. But some of the reading I have done suggests that, when the crime is of such a serious nature as to be a very significant threat to society, mere knowledge of the intended use of the property is sufficient to taint the accused with guilt, as when a wholesale drug company is selling large amounts of a dangerous drug, e.g., morphine sulphate, to a country doctor over an extended period of time. See Direct Sales Co. v. United States, 319 U.S. 703 (1943).  The dividing line may be unclear as to when something more than knowledge is necessary. Lauria suggests it might be felony/misdemeanor; under such a scheme, the law might say that when the seller knows the buyer intends a felony, mere knowledge may be enough; whereas, if the seller knows the buyer intends a misdemeanor, intent to promote or facilitate the misdemeanor could be required to make the provider a party to the crime or liable for conspiracy. To me, it seems like it will be only in rare cases that we will hold that mere knowledge by a seller of the intended use of the product will be sufficient  to make the seller a party to the substantive offense, and even more rare when we would use that mere knowledge alone to make the seller a party to the conspiracy to commit the substantive case based on an implied agreement or an aiding and abetting a conspiracy theory. See United States v. Falcone, 311 U.S. 205 (1940) involving D who sold lots of sugar to moonshiners. Suppose D1 provides D2 with a pistol that D1 knows D2 will use to murder V. If D2 commits the murder, is D1 liable as a party to murder? It seems like D1 would be an aider and abettor of murder? But suppose D1 works in a gunshop and the sole purpose of the sale of the pistol to D2 was for profit and that D2 was legally qualified to buy a pistol and the gun was sold for exactly the same price that any other customer could buy it for. Is the gunshop employee, who knows that D2 is planning to use the gun to kill V1, liable as a party for murder committed by D2 with the pistol? This last one is tough, but it seems clear under MPC Sec. 2.06 that D1 (the gunshop guy) wouldn't be liable as an accomplice to murder unless he had the purpose of promoting or facilitating  the murder. D1 didn't. Therefore, he's not a party to the substantive murder V.]

On the question of the required mens rea of conspiracy, I got the impression from the famed United States v Feola case that if knowledge of the so-called attendant circumstances, e.g., a jurisdictional element, is not required to be proved in order to prove the target (substantive) offense of a conspiracy, such knowledge is not required as proof of the conspiracy to commit the target offense.

Also, there may be a question of participation in a conspiracy when one of the persons is within the legislatively protected class that the target offense is designed to protect. There may be certain situations in which a person cannot be a conspirator and thus does not qualify when you are counting heads to see if you have an agreement; one such is shown by the Gebardi v. United States case which says that when the target crime is designed to protect a certain class as victims, members of that class can't be counted as conspirators; this is the "legislatively protected party rule." One example might be the child who is a party to a statutory rape; if we assume that the child agreed to the intercourse, s/he is not a party to a conspiracy to commit statutory rape and, therefore, would not be counted as a conspirator. Why? Because the law considers her/him as a victim. 

As a general rule, defendants may be charged and convicted of both the conspiracy to commit a target crime and the target crime itself. One exception to this general rule is the so-called Wharton's Rule that says: When the target (substantive) crime of the conspiracy requires cooperative action of two people, e.g. incest, adultery, bigamy, receiving stolen goods, sale of contraband, bribery, you can't use the second person when counting heads to determine whether you have a conspiracy to commit that target (substantive) crime. In effect, if two are needed for the substantive crime, three are needed for the conspiracy. For example, if seller (D1) agrees to sell heroin to buyer (D2), the agreement between the two is a necessary element of the crime of sale of heroin because sale requires both a buyer and a seller; thus, the transaction does not qualify as a conspiracy to sell heroin under Wharton's Rule, assuming there are no other actors involved in the target offense.  If there are more than two involved in conspiracy, i.e., an additional party who is not necessary for the commission of the offense, Wharton's Rule does not apply to preclude a conspiracy conviction. In jurisdictions, such as the MPC,  that statutorily prohibit double punishment for the conspiracy to commit the target offense and the target offense,  the result may be somewhat similar to the outcome under Wharton's Rule.  The commentary to the MPC says that the MPC does not recognize Wharton's Rule. UCL says the same thing.

How many conspiracies do you have? One other issue that arises in conspiracy prosecutions is as to whether you have one or multiple conspiracies. This matters because you don't want to charge a person with a conspiracy that he's not a part of. Also, it's important to prosecutors who are trying to introduce the acts and statements (what would otherwise be hearsay and irrelevant if the speaker and/or the accused are not in the same conspiracy) of one conspirator, in furtherance of the conspiracy and prior to its completion, as evidence against all of them. It's important for purposes of venue (allowing the situs of the trial to take place anywhere the conspiratorial acts took place). In determining the number of conspiracies, the types of conspiracies we looked at in the cases were chains, e.g., a drug operation with growers, refiners, transporters, wholesalers and retailers,  wheels with a hub and spokes and no rim, e.g., a receiver of stolen property who buys stolen goods from many thieves operating separately from one another, and wheels with hubs, spokes, and rims , e.g., a terrorist mastermind who oversees five cells of five persons each with each cell working directly with the others and indirectly through the mastermind in sharing information in support of their common goal of murdering persons of a certain nationality. [I'm not sure it's so easy to decide if you have a chain or a wheel; in some cases, I can envision a wheel at the end of a chain or a wheel with a chain hanging down from one spoke or the rim . But I suppose this is one way of trying to determine whether you have a single or multiple conspiracies. (1)]

In deciding whether there is a conspiracy, one faces the contest between the unilateral and the bilateral approaches. When the legislature defines conspiracy, it is faced with deciding whether conspiracy should be looked at through the eyes of the accused conspirator (unilateral approach) or from a bird's-eye view (bilateral approach). The C/L looked at conspiracy as requiring a bilateral agreement; so, if only one party to the agreement really means to agree and all the others are only feigning agreement or lack criminal capacity, there is no agreement and, thus, no conspiracy.  Also, the fact that all of the other co-conspirators have been acquitted, may serve as evidence that there was no conspiracy.  Of course, the fact that there are supposed conspirators who haven't been tried won't  prevent conviction of the accused in a bilateral jurisdiction.  The MPC,  in Sec. 5.04(1), takes a unilateral approach to conspiracy. Under this approach,  if D is agreeing and he believes the other person(s) is agreeing, an agreement  occurs for purposes of the conspiracy crime, irrespective of whether the other person is agreeing. The TPC is unilateral in approach, except with regard to the conspiracy where all conspirators other than the accused have been acquitted. In that instance, acquittal of all the others is a defense to conviction of the last alleged conspirator. See Sec. 15.02(c)(2) TPC.

MPC Sec. 5.03(3) makes it clear that the a single conspiratorial agreement to commit several crimes is viewed as a single conspiracy. The same is true if the target crimes agreed to are part of a continuous conspiratorial relationship. The idea is that it is the conspiratorial agreement or relationship that is the crime and not the target offenses. [Note: I need to remember this for the exam if the actors start talking about doing several target crimes.]

It seems logical to me that factual impossibility shouldn't have any influence on liability for conspiracy. The danger from conspiracy is the D's willingness to agree in combination with others to commit some unlawful offense (TPC -felony; MPC- crime) not from the danger regarding the effort (attempt) to hit the target.  So, it seems logical that a conspiracy could be punished even though it may be factually impossible to hit the target. The MPC in Sec. 8.05(2) seems to make a dismissal possible when a conspiracy is inherently unlikely to result in the commission of the the crime, e.g., conspiring to kill a person simply by throwing a marshmallow at him is probably not worthy of punishment.

Merger - UCL sets out the merger rules re: attempt and the target offense; conspiracy and target offense; solicitation and conspiracy; solicitation and target offense; solicitation and attempt; conspiracy and attempt. One thing I noticed in the TPC is Sec. 15.05 which seems to say you can't have an inchoate offense where the target is another inchoate offense, e.g., you couldn't have an conspiracy to solicit to attempt murder. [Note: Here's our study group problem regarding merger: A and B agree to shoot and kill C. A obtains a pistol to do the job, and A and B break into C's house during the night, where they shoot and kill C. At common law, could A and B be convicted of conspiracy to commit murder, burglary, and murder? What about under the MPC? The issue seems to be: Which crimes, if any, would merge? ]

As I think about solicitation and conspiracy, I am coming to believe that these crimes will be important in the coming years as law enforcement is required to take a proactive approach to terrorism, trying to cut it off before the damage is actually done. I think about those guys who allegedly plotted against New York in the early 1990's to commit assorted assassinations and blow up the UN building, the Holland Tunnel, and the George Washington Bridge.  They were lead by the so-called "blind sheik," Omar Abdel Rahman, who along with the other five in their cell were convicted in 1995. Do you think the federal law enforcement folks are changing from a group whose emphasis is on gathering rock solid evidence to prosecute substantive crimes to a group who is trying to stop group criminality before targets are endangered? 

More currently, the feds charged Zacarias Moussaoui, a Frenchman of Moroccan descent, in December of 2001 on six conspiracy counts in connection with the Trade Center/Pentagon aircraft crashes. On 3/29/02,  the U.S. Atty. General decided to seek the death penalty on four of the six counts. I checked out the 30-page indictment and it charges him with conspiracy to: commit acts of terrorism, commit acts of air piracy, destroy aircraft, use weapons of mass destruction, commit murder, and destroy property. For results of Moussaoui's trial which ended in conviction, click here. For sample transcripts from the case, press here. This hombre had been in federal custody on immigration charges for a month before the 9/11 events. A valid conspiracy theory might allow the government to get in the acts and declarations (statements) of coconspirators in furtherance of the conspiracy and pending its completion at this guy's trial. Can they use those acts and declarations as evidence that the Frenchman was a co-conspirator in the 9/11 bombings? He couldn't very well do much from jail, but with conspiracy it's the agreement that counts. There's no real requirement that he participated or assisted in the crime. If there were strong evidence that he aided or assisted the others before the 9/11 attacks they would probably have charged him as a party to the substantive crimes that were the object of the conspiracy, e.g., murder, air piracy, destruction of an aircraft, use of weapons of mass destruction, etc. Instead, they went with the much easier to prove, much lower level of conduct charge of conspiracy.

On a more mundane level, the old TV actor Robert "Baretta" Blake was charged in California with solicitation and conspiracy to murder his wife. It was major news on TRUtv. Blake was acquitted in 2005. 

There is so much information on conspiracy, I could write for days. Most of it is interesting, but I'm reasonably confident the teacher doesn't expect us to master all of this minutiae.  Am I exhausted from trying to sort this out? Does Goldilocks eat porridge?

UNIT EIGHTEEN - INCHOATE OFFENSES Attempt - Renunciation - Impossibility (Factual & Legal)  - Solicitation - Conspiracy - Feigned Conspiracy  See Silver Bullets III

Get your secret decoder rings ready. I'm back with more random notes. The topic of this unit changes to the inchoate (incomplete) crimes, i.e., attempt, solicitation, and conspiracy. I think I will try to bunch the notes I make in this and the next unit in those three discrete categories rather than mixing them up. The MPC treats them all in Chapter 5 but in separate sections, i.e., Section.5.01 - attempt, Section 5.02 - solicitation, and Section 5.03 - conspiracy. Texas deals with these three inchoate offenses in Chapter 15 TPC but breaks them down into separate sections, i.e., 15.01 - criminal attempt, 15.02 criminal conspiracy, and 15.03 criminal solicitation. The TPC affirmative renunciation defense which applies to each is found in Section 15.04.

On the issue of attempt, let's construct a scenario in class of a terrorist who conceives the idea of delivering spores of anthrax bacteria to a target with intent to kill that target. Let's build conduct onto that scenario with the goal of trying to determine the amount of accompanying conduct that would have to occur in conjunction with that evil state of mind for an attempt to occur. Start with the C/L and Sec. 15.01(a) TPC definition of attempt that requires that a person with specific intent to commit an offense engage in an act (conduct) that amounts to more than (goes beyond) mere preparation. The consensus seems to be that there might be different legal definitions of when a potential wrongdoer passes from the legal threshold of mere preparation for a target crime to illegally attempting it. Do you agree that if a person actually delivered the lethal dose of anthrax and it fortuitously didn't cause any damage, there would be an attempt to murder. The prof calls this the "bungler" type of attempt, e.g., where D shoots at V with intent to kill and misses because of bad aim. Can we also agree that if D had mailed a letter containing the anthrax to V, it should be an attempt because D had done everything possible to cause the result, notwithstanding that he was depending on numerous postal employees to unwittingly transport the poisoned envelope to V. It becomes a little dicey when we consider whether cooking up the bacteria or making an effort to purchase or otherwise obtain some spores would be an attempt to murder. [In light of the current "war against terror" fears, most people may believe that there should be some substantive crime for the person who has unauthorized possession of anthrax or who is trying to obtain or cook up a clandestine stash of it. But the question is whether either of those efforts was enough conduct to give us the crime of attempt to murder rather than mere preparation for that crime.] Texas doesn't give any guidance in Sec. 15.01 as to what constitutes conduct going beyond mere preparation. I noticed that the MPC in Sec. 5.01 does have a laundry list in (2) of situations that would be sufficient as substantial steps if, under the circumstances, they are strongly corroborative of an actor's criminal purpose. This is in connection with the MPC definition in (1)(c) of the necessary conduct for attempt as a "substantial step in a course of conduct planned to culminate in his commission of the crime." It will be a good idea for me to review all of those circumstances in (2) (a)-(g) that will not be insufficient (be sufficient) as a matter of law to support a finding that the evildoer has taken a substantial step. provided they are strongly corroborative of the criminal purpose. The list includes things like lying in wait, enticing the victim to go to the place where the crime is to be committed, reconnoitering (casing) the place or situs of the crime, possession of materials to be employed in the commission which are either specially designed for the unlawful purpose or which serve no lawful purpose of the actor under the circumstances, etc.[ This last category looks like it would fit the hypothetical poisoner D if we caught him with the anthrax.] The MPC list is not exclusive; apparently, unlisted scenarios could also constitute "substantial steps." Also, under the MPC substantial step test, you have to determine if the evidence is strongly corroborative of intent to commit the target offense. [In light of the terrorist situation, I'll bet the Texas Legislature might be open to expanding the interpretation of the "beyond mere preparation" rule to expressly cover what the MPC views as a "substantial step." Of course, when we look at how much has been done (as the MPC "substantial step" test does) rather than how much remains to be done, we are probably making the capture net of potential attempt crimes broader.]

At C/L, if we suppose that D decides to murder V and buys a rifle and bullets and then goes home and loads the rifle and then tries to find out precisely where V is presently located, this was viewed as "mere preparation," even if D had written his plans down on paper and the cops had observed D do all of the above. At C/L, it was only when D started for the target that one could legitimately start asking "whether mere preparation had ended and perpetration had started." Even then, the existence of perpetration may depend on how close the target is.

As far as the mens rea of attempt is concerned, it looks like the C/L and TPC Sec. 15.01 reserve attempts only for crimes where the actor specifically intends to commit the offense. That eliminates attempted crimes of recklessness and criminal negligence. It also means that you wouldn't have attempted felony murder or attempted murder based on an intent to inflict serious bodily injury or depraved heart. Any one of those last three forms of mens rea would be sufficient to show malice aforethought at C/L for the substantive crime of murder. But, in the case of attempted murder, you have to have an actual specific intent to kill another person. Acting recklessly or with criminal negligence or any other mens rea other than specific intent to commit the offense would not be sufficient for an an attempt at C/L or the TPC. The MPC in Sec. 5.01 says that the actor has to act "with the kind of culpability otherwise required for the commission of the crime." But (1)(a),(b),and (c) each contain a requirement of acting "purposely."

Note: Since attempt (as well as solicitation and conspiracy) was a specific intent crime at C/L, the defense of mistake and intoxication will be influenced. For example, if D is attempting (a specific intent crime) rape, D's honest, good-faith but unreasonable mistake of fact about whether V is consenting will be a c/l defense to the attempted rape charge. If the rape (not a specific intent crime) was completed and D wants to claim mistake re the consent issue, his  mistake would have to be in good faith and reasonable. Similarly, voluntary intoxication could negate the specific intent of an attempted (a specific intent crime) murder, but could not negate the mens rea of the substantive offense of murder, because murder is not a specific intent crime.

To me, the big question surrounding attempts is: "How soon law enforcement can step in, arrest, and convict the wrongdoer before he metaphorically 'lights the fuse'?" I mean, how long do we have to wait before the crime is complete to jump in and collar the bloak? In other words, how soon can we grab the crook before he achieves the target and still be sure he's a crook? Clearly the policy behind attempt doesn't focus on actual harm, as most substantive crimes do. Attempt is based on the the creation of the risk or potential for harm.

Note: One thing I need to remember on the exam - There is no such crime as "ATTEMPT." The attempt is always linked to the target offense. I must remember to always link the attempt to the specific crime attempted, e.g., attempted murder, attempted robbery, attempted theft, attempted rape, etc.

On this renunciation issue as it relates to liability for criminal attempt, it seems like at C/L if the actor renunciated and lost his nerve or pulled out for any reason while he was still in the mere preparation stage for the target crime, there was no attempt crime. But once he crossed over the line into beyond mere preparation for the target crime, he was guilty of attempt no matter that he renunciated out of good conscience and kept the target from being hit. The bottom line: renunciation is no defense to attempt at C/L. But, if voluntary, it seems like it can be an affirmative defense under MPC Sec. 5.01(4) and TPC Sec. 15.04(a). However, this cannot occur if the target is hit. If it's too late to stop the target from being hit by merely desisting, the actor has to take whatever action is necessary to keep it from being hit. Renunciation as a potential defense in this sense only applies to liability for the attempt crime not the target (substantive) crime. Note: The professor promised us that inchoate offenses will be on the exam. I'm betting that he will have somebody on an essay question backing out of one of these crimes before a target is hit, so I need to know the effect of renunciation on the liability for the inchoate crime. Here's the sort of hypothetical question that might be asked about attempt and renunciation:

  • D decided to set fire to his hated neighbor V's house. In preparation D bought a box of matches. D accumulated some oily rags. D took the oily rags to V's house and placed them by the outside wall of the house. D then lit a match intending to set fire to V's house but blew it out on seeing that he was being watched by a passerby. What is D's criminal liability under the common law, Model Penal Code and Texas Penal Code? (A similar question could occur in a potential attempted homicide case with D who cocked and aimed his pistol at V with intent to kill but voluntarily desisted from his plan at the very last minute because of pangs of conscience and realization that killing was morally and legally wrong.)

What happens when one engages in conduct that can't possibly result in the completion of the target crime. Should a person be liable for attempting to commit a target crime that couldn't be committed because of an impossibility? Simplistic hypos would be: What happens when D shoots at a block of wood believing it is a person or puts his hand into an empty pocket intending to pick the pocket. How does this differ from shooting at a real person or picking a pocket that contains a cash-laden wallet? Is it relevant to attempt liability that no harm could occur in the scenario? On the effect of impossibility on an attempt prosecution, what would happen if a D wanted to kill people with a bomb but couldn't because the bomb was never capable of exploding or because all the people in the building had been evacuated from the building before he tossed the bomb? Suppose D, with intent to kill, sends V a letter loaded with what D believes is anthrax, but, unbeknownst to D, the "anthrax" is really talcum powder. In these situations, factual circumstances preclude the target crime from being achieved. These hypos would seemingly be considered as factual impossibility. At C/L, Texas law, and under the MPC, factual impossibility is not a defense to conviction for the attempt to achieve the targeted substantive crime. So, the pickpocket who picks the empty pocket will be liable for attempted theft (C/L larceny) from the person. Or, for example, when D, intending to kill V, shoots at the bed containing a form he thinks is V, but instead hits some pillows, D can't successfully claim factual impossibility as a defense to the attempted murder of V. The same should be true when V is already dead as in People of NY v. Dlugash. Or when D, a would be rapist, is unable to penetrate his victim because of impotence, D can't claim impossibility as a defense to attempted rape.

On the other hand, suppose D has forcible intercourse a woman who, unbeknownst to him, is his wife. At C/L a man was legally incapable of raping his own wife as a primary (principal in the first degree) actor. The impossibility here comes from the lack of legal capacity to be guilty of the offense. The same would be true at English C/L of a boy under 14 who had forcible sexual intercourse with a woman. The boy under 14 was legally incapable of the crime of rape. Thus, it was legally impossible for him or the ravaging husband to commit the target crime. Common law and Texas case law both recognize the defense of legal impossibility to the crime of attempt See Lawhorn v. State, 898 S.W.2d 886 (Tex. Crim App. 1995). The idea behind legal impossibility as a defense to attempt is that if one attempts to do something that is not legally defined as a crime or a crime that he is not legally capable of committing, one should not be liable for the attempt. Attempting to do something that is not defined as a crime is not a crime. In other words, there must be an object offense before there can be a criminal attempt - an actor's mistaken belief that his conduct is criminal when there is no such offense cannot constitute a criminal offense. Thus, attempting to commit a crime that one is legally incapable of committing is not a crime.

It isn't always easy to separate factual from legal impossibility. In the "turkey dope" situations, where D thinks he is selling heroin but the heroin is really cornstarch, is it factual or legal impossibility? Suppose D receives an item believing it to be stolen, but in fact there has been no larceny (theft) and the item is not stolen, or the item was stolen property that had been recovered by the cops and was no longer stolen at the time the receiver took possession of it, perhaps, in a police sting operation. It looks like the C/L view was that there could be no attempted receiving and concealing because the only element present was mistaken intent to receive a stolen object that wasn't stolen (1); therefore, under this view, there was nothing wrong in the transaction. I'm gonna read UCL to get a handle on what UCL5th labels as "hybrid legal impossibility." For a case duscussing the concept and citing UCL, see People v. Thousand , an Internet chatroom attempted distribution of porn to a minor case where 14-year-old Bekka was actually a male deputy sheriff. Texas (Sec. 31.03(b)(4)) and many states have a definition of theft that would allow a substantive theft conviction in circumstances where the police do such a sting on a receiver. The MPC seems to say that neither factual or legal impossibility could be a defense to attempt. But even the MPC will allow D to get off the hook if the target is inherently impossible, e.g., homicide attempted by voodoo or a UCL5th says destruction of a battleship with a popgun or when due to the principle of legality one cannot be liable for an offense that does not exist. See Secs. 5.01(1)(a) and 5.05(2) MPC. Under MPC 5.01 the accused must intend to do something that is a crime; if D tries to do something he thinks is a crime, but isn't, D can't be guilty of the attempt. See Bullets III for an explanation of attempt.    

It's late. As my old Escape From New York hero, Snake Plissken, says: "All right, you guys. Sit tight. Hold the fort. Keep the home fires burning. And if I'm not back by dawn, call the President." 

bushrod springwater's
moses- criminal law
Units 18-22

*Mr. Springwater is a skeptic, not a cynic.

copyright © 2000-2017 ray moses
all rights reserved
Mens Rea; Culpable Mental State; Intent; Knowledge; Wilful Blindness; Recklessness; Criminal Negligence; Mistake of Fact/Law; Intoxication; Actus Reus; Omission; Void for Vagueness; Principle of Legality; Murder; Felony Murder; Manslaughter; Negligent Homicide; Mental Illness; Incompetency; Infancy
Duress; Necessity; Defense of Self, Third Parties, Habitation & Property; Resisting Arrest; Citizen's Arrest; Entrapment; Outrageous Government Conduct
Embezzlement; Receiving & Concealing; Robbery; Burglary; Extortion; False Pretenses; Mail/Wire Fraud; Sex Offenses; Rape
SILVER BULLETS - Assignments 1-8
SILVER BULLETS II - Assignments 9 -14




Who's responsible for what in this video clip? Suppose that Bennie Blanco from the Bronx is working on his own in shooting Carlito Brigante.

The vagaries of organized crime in Cleveland are superbly captured in this film. (1 - more background)
Read about the use of killing Danny Greene as RICO predicate acts in United States v. Licavoli  725 F. 2d 1040 (6th Cir. 1984)