Inchoate Crimes Flashcards
INCHOATE CRIMES
The term “inchoate” literally means “unripened.” With an inchoate offense, the intended crime need not be committed for a defendant to be guilty. The inchoate offenses are solicitation, conspiracy, and attempt. Inchoate offenses are specific-intent crimes.
Merger
Traditionally, under the doctrine of merger, if a person’s conduct constitutes both a felony and a misdemeanor, then the misdemeanor merges into the felony, and the person can be convicted of the felony but not the misdemeanor. However, if the crimes are of the same degree, i.e., all felonies or all misdemeanors, then there is no merger of the crimes.
Modern law does not subscribe to the doctrine of merger based on the felony-misdemeanor distinction, but does apply this doctrine with respect to solicitation and attempt and the solicited or completed crime. A defendant may be tried, but not punished, for solicitation and the completed crime or for attempt and the completed crime. Solicitation and attempt are said to “merge” into the completed crime.
Contrast conspiracy: Unlike a solicitation and attempt conviction, a conviction for conspiracy does not merge into a conviction for the completed crime.
Under the MPC, a defendant may be concurrently prosecuted, but not punished, for more than one inchoate offense (i.e., solicitation, conspiracy, and attempt) based on conduct designed to culminate in the commission of the same crime. MPC 5.05(3). At common law, conspiracy and attempt do not merge.
Note: The Double Jeopardy Clause generally prohibits a defendant from being convicted of both a crime and a lesser-included offense (i.e., an offense all the elements of which are also elements of the more-significant crime), such as robbery and larceny. Many jurisdictions characterize this prohibition as a “merger” of the lesser-included offense into the greater. For further discussion of double jeopardy, please refer to the Themis Criminal Procedure outline.
Solicitation
Solicitation is the:
i) Enticing, encouraging, requesting, or commanding of another person;
ii) To commit a crime;
iii) With the intent that the other person commits the crime.
1. Encouragement
The encouragement may take the form of enticement, incitement, request, or command. The crime is completed upon the encouragement. The other person need not agree to commit the crime.
- Relationship to Other Crimes
If the other person does agree, then the solicitor and the person solicited may also become co-conspirators.
- Defenses to Solicitation
a. Renunciation
At common law, renunciation was no defense to solicitation. Under the Model Penal Code, voluntary renunciation may be a defense, provided the defendant thwarts the commission of the solicited crime. MPC § 5.02(3).
b. Factual impossibility Factual impossibility is not a defense to solicitation. If a solicitor is part of a group that was meant to be exempted by the statute, then the solicitor cannot be guilty of solicitation (e.g., a minor female soliciting sex cannot be guilty of statutory rape).
Conspiracy
Conspiracy is:
i) An agreement;
ii) Between two or more persons;
iii) To accomplish an unlawful purpose;
iv) With the intent to accomplish that purpose.
The majority rule and federal law, as well as the MPC, now require the commission of an overt act, which can be legal or illegal, in furtherance of the conspiracy to complete the formation of the conspiracy. At common law, no overt act was required for the conspiracy to be complete.
EXAM NOTE: Remember, unless the question specifically indicates that the majority rule is being tested, apply the rule of common-law conspiracy on the MBE. The common-law rule does not require the commission of an overt act in furtherance of the conspiracy for the crime to be complete.
Agreement
The agreement need not be a formal document, or even in writing; an oral agreement is sufficient. An agreement need not be specifically articulated but can be inferred from a concerted action by the defendants.
Number of Conspirators
At common law, there is no such thing as a unilateral conspiracy because two or more persons are required to form a conspiracy. This is often referred to as a “bilateral” approach to or theory of conspiracy.
However, the modern trend and the MPC is to allow a “unilateral” conspiracy. Under this approach, the focus of liability is on the individual defendant and his agreement to the object of the conspiracy. A unilateral conspiracy may be formed when only one party actually agrees, such as when another party merely feigns agreement, or if the alleged co-conspirators are ultimately acquitted.
a. Feigned agreement
When only one conspirator has the intent to agree, such as when the other conspirator is a governmental agent or pretends to go along with the crime to warn police, there is a conspiracy under the “unilateral” approach but there is no conspiracy at common law unless another participant is involved.
b. Protected by statute
When the purpose of a criminal statute is to protect a type of person (e.g., a statutory rape statute protects the underage participant), there is no conspiracy between the protected party and the targeted defendant.
c. Wharton Rule
Under the Wharton Rule, if a crime requires two or more participants (e.g., adultery) there is no conspiracy unless more parties than are necessary to complete the crime agree to commit the crime. Although there is no conspiracy, the participants may be found guilty of the underlying crime itself. Because the MPC does not require the participation of at least two conspirators, this rule does not apply to conspiracies under the MPC.
d. Corporation and its agents
A corporation can conspire with its own agents with some limitations. In some jurisdictions, there can be no conspiracy between a corporation and a single agent of that corporation. A conspiracy between the corporation and multiple agents of the same corporation may, in most jurisdictions, satisfy the plurality requirement. A corporation or its agents can enter into a conspiracy with another corporation or agents of that corporation.
e. Prosecution of other conspirators
A conspirator cannot be convicted of conspiracy if all other conspirators are acquitted at the same trial. In other circumstances, such as when co?conspirators are never tried or apprehended, a conspirator may be convicted of conspiracy if the prosecution proves the existence of a conspiracy.
f. Spouses as co-conspirators
Common law did not consider husband and wife as co-conspirators because the law viewed them as a single entity. However, they could, as an entity, conspire with a third person. Nearly every jurisdiction has abolished this common-law concept.
Unlawful Purpose
Under federal law and the modern trend, “unlawful purpose” is limited to criminal conduct. In some states, even the achievement of a lawful purpose through illegal means can be the subject of a conspiracy.
Specific Intent
Conspiracy is a specific-intent crime. A conspirator must have the intent to agree and the intent to commit the criminal objective. The intent to agree may be inferred from the conduct of the parties.
Example: Conspiracy to commit arson requires specific intent, even though the substantive offense of arson only requires malice. Similarly, a conspiracy to commit a strict-liability crime requires intent.
Because intent to agree and to commit the crime are elements of conspiracy, criminal liability for a conspiracy cannot be based solely on knowledge of the existence of the conspiracy. For example, a merchant who supplies goods to a conspirator knowing that the conspirator intends to use the goods in furtherance of the objective of the conspiracy is not a member of the conspiracy simply because the merchant possessed such knowledge. Instead, the merchant must take an additional step to show such intent, such as selling the goods at an exorbitant price, basing the price of the goods on a percentage of the conspiracy’s “take,” or ordering specially manufactured goods that the merchant does not normally sell.
Overt Act Requirement
An overt act was not required at common law, but it is now a required element of a conspiracy under federal law, the MPC, and in a majority of states. When an overt act is required, the conspiracy crime is not complete until the overt act is performed in furtherance of the conspiracy. The overt act can be performed by any co?conspirator, with or without the knowledge of all co-conspirators. The overt act can be lawful or unlawful. However, the MPC does not require an overt act if the conspiratorial crime is a felony in the first or second degree.
Contrast attempt: To constitute attempt, the defendant must have taken a substantial step toward commission of the crime. A mere preparatory act is insufficient for attempt.
Scope of Conspiracy
a. Crimes committed by co-conspirators
Under the Pinkerton Rule, a conspirator can be convicted of both the offense of conspiracy and all substantive crimes committed by any other co-conspirators acting in furtherance of the conspiracy. Under the MPC, the minority view, a member of the conspiracy is not criminally liable for such crimes unless that member aids and abets in the commission of the crimes.
b. Multiple crimes, single conspiracy
A single conspiracy may have numerous criminal objectives. Not all of the co?conspirators even need to know the identities of all of the other co?conspirators or all of the details of the criminal organization. It is only necessary that all co-conspirators agree to further the common scheme or plan. Multiple conspiracies arise when the objectives and/or crimes are not committed in furtherance of the same agreement, common scheme, and plan.
c. Unknown conspirators, single conspiracy 1) Chain relationship
Persons who do not know each other can be members of the same conspiracy if there is a community of interest in the achievement of the object of the conspiracy. A community of interest is usually found when the activities of each person resemble links of a chain, such as a scheme to acquire and distribute drugs. In such a conspiracy, all of the members of the community of interest are liable for the acts of the others in furtherance of the conspiracy.
2) Hub-spoke relationship
A scheme that resembles a hub with spokes, such as the processing of fraudulent loans by one person that were submitted by numerous other individuals, is less likely to have a community of interest. In such a case, the “hub” and each “spoke” are usually treated as having formed a separate conspiracy from all of the other hub-spoke combinations. Thus, the common hub will be liable for all of the conspiracies, but the spoke members are not liable for the acts of the other conspirators.
Impossibility
Factual impossibility (that it was factually impossible to complete the intended crime) is not a defense to conspiracy. Legal impossibility (that the intended act is not criminal in nature) may be a defense if the object of the agreement is not a crime.
Withdrawal
a. Effect on liability for conspiracy
At common law, withdrawal was not a defense to conspiracy because the conspiracy is complete as soon as the parties enter into the agreement. Under the federal rule, which is also the majority rule, a conspiracy does not come into existence until an overt act has been committed. Consequently, after there has been an agreement but before an overt act has been committed, a person may avoid criminal liability for conspiracy by communicating notice of his intent not to participate to the other potential co-conspirators or by informing the police about the agreement. Upon completion of the overt act, the conspiracy is formed, and withdrawal is no longer possible. Under the MPC and the minority view, subsequent withdrawal is possible only if the defendant acts voluntarily to “thwart the success” of the conspiracy.
b. Effect on liability for substantive crimes
A defendant may limit his liability as a co-conspirator for the substantive crimes that are the subject of the conspiracy by withdrawing from the conspiracy at any time after it is formed. For this purpose, he may withdraw by giving notice to his co?conspirators or timely advising legal authorities of the existence of the conspiracy even though such an action does not thwart the conspiracy.
While a defendant is not liable as a co-conspirator for crimes committed in furtherance of the conspiracy after an effective withdrawal from the conspiracy, the defendant may nevertheless be liable as an accomplice for subsequent crimes committed by his former co-conspirators for which he has given aid. (See I.D.2.c. “Withdrawal,” supra.)
Termination
It is important to determine when a conspiracy ends for the purposes of determining the statute of limitations and the admissibility of acts or declarations made by the conspirators in furtherance of the crime. Generally, the act of concealing the conspiracy is not treated as a part of the conspiracy.
Punishment
Jurisdictions vary widely with respect to penalty provisions for conspiracies. Some jurisdictions make conspiracy a misdemeanor regardless of the objective, while other jurisdictions provide maximum sentencing depending on the objective. Still others allow for a permissible maximum sentence, regardless of the objective. Nevertheless, sometimes the sentencing for conspiracy is more severe than the punishment for the crime itself.
Attempt
An attempt requires:
i) A substantial step toward the commission of a crime; coupled with
ii) The specific intent to commit the crime.
If the crime is successfully completed, the attempt is merged into the completed crime.
