Criminal Law III Winter Start Week 2 Summer 2010 John C. Schick 209.235.2937 jschick@humphreys.edu jcschick@earthlink.net
People v. Thousand • Thousand communicates over the internet with a person he thinks is a young girl and suggests sexual intimacies.
• The “young girl” is in fact an adult male law enforcement officer.
• Thousand is prosecuted for attempted distribution of obscene materials to a minor.
Thousand, continued • Thousand argues that because there was no minor present, it was factually impossible for him to commit the target offense.
• This made it also impossible for him to commit an attempt of the target offense.
• But this hinges on the ability to raise the defense of impossibility.
Thousand, continued • Legal impossibility was recognized at common law and is a situation where an actor has criminal intent but the act is not prohibited by law.
• See the examples on pages 784 and 785. • This is a rare situation, and most situations are hybrid between legal/factual impossibility.
• This court notes it has NOT accepted impossibility as a defense in any form.
Thousand, concluded • But in looking at legislative intent, majority finds that all that is required for attempt is the intent to do the act and any act towards its commission.
• Dissent says that legal impossibility is in fact part of Michigan’s jurisprudence.
• Further the dissent says the actor must come close to the act attempted, not merely take some step towards it.
• The ends does not justify the means, dissent says.
Commonwealth v. McCloskey • • • • •
McCloskey is an inmate in prison. Evidence suggests he was going to escape from prison. But he apparently changed his mind. He is prosecuted for attempted escape. Court notes that since he had not left the walls of the prison, he was still in preparation.
McCloskey, concluded • Concurring opinion notes that not only was there insufficient evidence of escape or attempt, but there was strong proof of abandonment.
• Abandonment is a defense when the evidence suggests it was done voluntarily and not as a response to some outside force that interrupted the act.
What is the crime of assault? • Assault is defined as an attempt to inflict bodily injury upon another with unlawful force, accompanied by the apparent ability to effect the act if not prevented.
• Battery is defined as the unlawful and unconsented touching of another.
• Both are general intent crimes.
Two forms of assault • Civil law defined assault as putting another in apprehension of harm.
• This meant that if a person did not know he/she was being put in that condition, there could be no assault.
• Generally recognized view is that assault is an attempted battery and closeness to an actual battery makes the assault case stronger.
State v. Mann • How do we define the crime of solicitation? • Solicitation involves the asking, enticing, inducing, or counselling another to commit a crime.
• It could be looked upon as a form of attempted conspiracy. • Since solicitor comes up with idea of crime, this may be worse than merely agreeing to crime, as in a conspiracy.
State v. Cotton • Cotton is convicted of soliciting the offense of bribery or intimidating a witness.
• His stepdaughter told the police he had unlawful sexual contact with her.
• Cotton addresses letters to his wife, for the purpose of having her give them to the girl.
Cotton, continued • The letter is turned over to the authorities by another inmate and is never received by the wife.
• A second letter similarly is written by Cotton but never received by his wife.
• State says all you need is proof the letters were written and that he had the intent to violate the law.
Cotton, concluded • Court disagrees and reverses the conviction. • Court notes that New Mexico legislature did not incorporate MPC term that said all you need is conduct “designed to effect” actual communication to the solicitee.
• In the absence of such language, the evidence here falls short of what is needed.
Solicitation in California • Go to page 13 of Jury Instruction book • Note that the law requires that a perpetrator requested another to commit or join in the commission of the crime • This makes solicitation like an attempted conspiracy—there is no overt act required • We require that the person receive the solicitation • We also require some corroboration. (page 14)
People v. Carter • Conspiracy is a situation where two or more people become partners in crime.
• There must be two intents present. • The first intent is an intent to agree to a criminal enterprise. • The second intent is to do the deed that represents the target crime of the conspiracy.
Purpose of Conspiracy Law
• There is a greater danger in more than one person agreeing to do a crime than merely one person.
• The existence of laws making the pre-act agreement a crime allows the state to intervene and stop dangerous activity before it becomes a reality.
What is the relationship between these crimes? p. 812 • Solicitation is the earliest form of crime. • Next comes conspiracy, which involves an intent to agree and an intent to do the act which is the target of the conspiracy.
• Then comes attempt, which involves an intent to do the act and some substantial acts in that direction.
• Last is the completed substantive crime.
Pinkerton v. US • Issue on appeal is the argument by Daniel that he should not be held liable for acts done by his co-conspirator, at a time when Daniel was in prison and could not do the act which was a crime.
• Evidence suggested that this was an ongoing act, continuing to try to beat the tax codes.
Pinkerton, continued. • If there is no bona fide effort to withdraw from the conspiracy, then the liability is ongoing.
• Dissent says this is establishing a dangerous precedent,
since the liability for an ongoing criminal conspiracy will be greater than that for a civil conspiracy.
Pinkerton, concluded • This principle of conspiracy law is generally accepted in all jurisdictions
• Look at CAL CRIM instructions, page 11 in middle • California imposes liability based on the idea that acts done to further the conspiracy that are “natural and probable consequences” are the responsibility of ALL conspirators
Krulewitch v. US p. 817
• Following a conviction for inducing a woman to cross state lines for purpose of prostitution, defendant appeals
• Appeal based on improperly introduced evidence. • When a conspiracy is in progress, evidence otherwise deemed hearsay can be introduced.
Krulewitch, concluded. • Although the conspiracy had ended, the lower court agreed with government that there is still going to be discussions about concealing the crime even after the end of the conspiracy.
• Justice Jackson laments the fact that conspiracy law expands the reach of the law that strikes at fundamental fairness.
People v. Swain • Swain is convicted of conspiracy to commit murder. • But the jury fixed the target crime as second degree murder. • The theories of second degree murder do include that of express malice.
• But they also include felony murder and implied malice murder.
Swain, concluded • Because conspiracy requires a specific intent to do the target crime, and because implied malice murder is not based on actual intent, then...
• The use of implied malice murder as a theory requires a reversal of the conviction.
People v. Lauria • Lauria operates a phone answering business. • He notes that the service is operated solely for that purpose. • Apparently some of his customers are known to him as actual prostitutes.
• The state is investigating prostitution rings.
Lauria, continued • Is the mere knowledge that there is an illegal purpose being
made of legal services enough to make a person a participant in the conspiracy?
• Does knowledge mean that the person shares an intent to promote the illegal act being done?
• There must be more to show that the actor wants to promote the illegal enterprise
How do we prove the agreement? • The participation of the person in the target offense may be of help.
• But it is important to separate this act from the agreement element that is the first ingredient of conspiracy.
• Never forget that conspiracy punishes the agreement, not the act.
• Many times persons are charged with both conspiracy and the target crime.
Lauria, concluded • The court notes that Lauria’s involvment does not rise to the level of promoting the illegal act
• He did not have a disproportionate number of prostitutes on his list of customers
• He had no stake in the venture • He cooperated with law enforcement • Because the crime is only a misdemeanor, court feels that there must be strong proof that he is involved and that is lacking
Commonwealth v. Azim • Azim is convicted of being in a conspiracy to rob and assault another.
• He claims he was merely the driver, and thus there is not enough evidence to show an agreement to commit the offense.
• He is saying that he lacked knowledge of what was going to occur and there is insufficient evidence to infer an agreement based on what took place during the crime.
Azim, concluded • An agreement must usually be inferred from circumstantial evidence in the case.
• In this case that would include his presence at the offense, association with the perpetrators, and participation in the target offense.
• On the basis of the evidence, there is enough to show that there in fact was an agreement and that a finding of guilt is justified.
Azim definition of conspiracy • Page 830 • The essence of a criminal conspiracy is a common understanding, no matter how it came into being, that a particular criminal objective be accomplished.
Commonwealth v. Cook • Cook is convicted of conspiracy to commit rape. • His brother did the actual rape of the victim. • The circumstances under which the crime occurred suggested the encounter with the victim was chance and not planned.
Cook, continued. • When the victim fell to the ground, she was vulnerable to rape.
• But no evidence suggested she was pushed as part of an overall plan .
• The words of defendant may suggest he was an accomplice once the act began.
• But there is insufficient evidence to suggest he was part of a plan to rape.
Cook, concluded • Court emphasizes that it is important not to look merely at the fact that a person was a participant in a particular offense.
• Circumstances may be present that would make it unlikely that there was any plan
• The actus reus must come from proof that there was in fact an agreement preceding the act.
Cook definition of conspiracy • Page 832 • A combination of two or more persons who seek by some concerted action to accomplish a criminal act may be punished as a conspiracy. An agreement to do the act is an essential in order to gain a conviction.
• This agreement is the gravamen of the conspiracy.
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