I. Culpability

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MPC 5.01(2) substantial step: This conduct does not necessarily have to by itself manifest criminality. This isn’t scientific, it is determined by a jury and can be inconsistent. It must be “strongly corroborative”: the actor’s conduct must add significantly to the other proof of his criminal intent, such as a confession or other incriminating statement. Also 5.01(2) list several circumstances that can be used to infer criminal purpose (lying in wait, searching for or following victim, etc.).

Problem is what if crime was impossible to commit? Impossibility is a failed attempt, but is different than an inchoate attempt (which is being caught at the beginning, incomplete) this is being caught in after a failed attempt.

This is not a defense because it is the actor’s intentions that matter (subjectivism). A person who is unaware of facts, is as dangerous as one who successfully commits the crime or doesn’t because of police intervention (attempting to picking an empty pocket is still a crime).
There is still a defense for pure legal impossibility; the result intended by the actor must constitute a crime.

Renunciation of Criminal Purpose MPC 5.01(4): Says that only a moral epiphany is considered a real abandonment (must be both complete and voluntary), this is a defense. Abandonment just because circumstances change and look harder (i.e. cops show up) doesn’t count. If one tries to actually prevent the crime, this is also a defense.

Last step doctrine: no attempt until the last step, because of this abandonment is only needed when criminal law seeks to intervene early. If the punishment was the same for attempt and committing then there would be no incentive for abandonment.

People v. Rizzo: inchoate, ’s drove around while armed searching for a bookkeeper to rob. They were apprehended before they found him. They were acquitted because they had not found or reached the presence of the person they were going to rob (this would have been the substantial step). We could redefine attempts to cover acts like this or get them for other crimes: stalking, loitering, etc. Could also redefine crime as prowling by auto or possession of a firearm with intent to commit a crime.

Commonwealth v. Peaslee: inchoate,  prepared for an arson for insurance fraud and solicited a young man to actually start the fire. Before the boy could do so the  changed his mind and stopped the boy. Was the ’s act near enough to the accomplishment of arson? The problem is that the law does not punish every act done toward the commission of a crime, but only those that are done in an attempt to commit. In general a preparation is not an attempt (although some preparations may amount to one).  got off.

Stalking: MPC 250.4, may be to easy to prove and could be unconstitutional (vagueness and 1^st Amendment).

If guilty of solicitation (e.g. trying to hire a hit man) can you be charged for attempt also? Yes, but if convicted on attempt, the lesser charge of solicitation drops out (but jury may only bring back solicitation if they choose).
3. Accomplice Liability: MPC 2.06, liability for conduct of another. You must take the ’s intent into account, can’t just be guilty for mere presence during the crime (this would be strict liability, which is not allowed).  must associate himself with the venture, he must have the purpose of promoting or facilitating it (work for a common design).  must only aid, does not have to have a stake in the crime.

It is not enough is the  simply made the crime easier (“but for” test), the  must encourage and aid.

People v. Luparello:  wanted to find his girlfriend and got several friends to help him get the information from victim. He said he wanted it at any cost and one of these friends killed the victim. This court’s theory is you don’t need purpose for the result;  can just be negligent with respect to the result of actions you set in motion.

This established the natural and problem consequence rule (this is hard to define, how likely? 20%, over 50%, over 90%?): the  can be responsible for facilitating actual crime the principle committed (not necessarily the crime the abettor or the principle intended) as long as it’s foreseeable.
This rule doesn’t work under the MPC because it puts on an accomplice the mens rea of another actor. This doesn’t work with the idea of punishment being proportional to ’s culpable mental state.
Under the MPC (the minority view) the accomplice is guilty only if his purpose is to encourage the actual crime the principle is held for. Intentions matter.
However, abettor doesn’t need mens rea for aiding and abetting an offense for which mens rea isn’t required (this is absolute liability).
The abettor must know the facts of the situation, but ignorance of law is not a defense.

If you are dealing with accomplice liability for a homicide you can always charge an additional count of direct crime (e.g. manslaughter).

Wilson v. People: Two friends decided to burglarize a drug store. Wilson boosted Pierce through the window and then called the police and then returned to receive the some bottles of whiskey. Pierce escaped, but Wilson led the police to him and identified him. He intended that Pierce get caught because Pierce had stolen his watch. He was not convicted because his motive was to get Pierce caught not to rob a drug store.

State v. Gladstone:  told an undercover cop where he could buy some marijuana. He got off. There must be a nexus between the  and the person he supposedly aided. The  must associate himself with the venture.

State v. McVay: Owner of ship old captain and engineer to run the boiler negligently and it exploded killing several.  maintains that a person can’t be held as aiding and abetting a crime of negligence. Aiding and abetting includes purposeful action, yet negligence is by accident. You can say someone purposefully did something that has unintended consequences.  was indicted.

People v. Abbott:  was in a drag race and the other member of the race drove on the wrong side of the road to pass , killing a person. ’s conduct made the race possible, he shared in the venture. He had the culpable mental state of criminal negligence that gave assistance to killer to engage in conduct dangerous to life.

State v. Hayes:  feigned acquiescence with burglary of a store to obtain the arrest of the burglar and advised the store owners of the plan. He got off because (1)  didn’t intend any crime, (2) for  to be liable for the burglar’s act, there must be a common purpose and there wasn’t one. There was no burglary, his entering of building wasn’t to commit a crime.  can’t be an accomplice to a crime that didn’t occur.

Vaden v. State: Vaden flew an undercover government agent around so the agent could shoot game illegally.  claimed that there was no crime because the government agent could ignore the law. Holding  guilty would violate due process because the agent could determine how many offenses the  aided.

MPC 2.06(a), (b); says that a person is not an accomplice in an offense by another either if he is a victim (a minor isn’t an accomplice to statutory rape) or if the offense is so defined that his conduct is inevitably incident to its commission (a john isn’t an accomplice to prostitution.

4. Money Laundering: this seems to expand the concept of accomplice liability. Here, it if you are not part of the solution you are part of the problem (seems like an exception to the idea that we can turn our backs on crimes we witness). It created an affirmative duty on certain people, such as banks. The use of “dirty” money is a crime to freeze drug dealers out of the legit. economy.

Money laundering isn’t a negligence standard, the person has to know that the money is criminally derived, but he can’t not ask question (that would be willful blindness).

Bank of new England: bank charged with violating Bank Secrecy Act. This crime is a willful failure to report (part of the drug war and an effort to deal with tax evasion). Does this make the bank an arm of the government? It’s almost like deputizing people in the aid of law enforcement: it makes corporate responsibility.

US v. Campbell: Price of a house was not actually reduced, just recorded as $122,500 and $60,000 was given to sellers under the table (equaling original price of $182,000). Pay less taxes and maybe less property taxes. The Court got it wrong saying it was real estate realtor’s purpose to evade the law, really the question is if she had knowledge that buyer was trying to do so (that he was a drug dealer).
5. Corporate Liability: can do more than merely create stigma, courts can order community service or even order a restructuring or monitoring of the company. Finally, a court could dissolve the corporation (corporate death sentence).

Critics say: you can’t really punish a corporation, really the courts are punishing the stockholders and employees (who may get laid off)
Critics also say that corporate liability may divert attention away from the guilty actors: the actual people, seems to mean less deterrence.
However, punishing shareholders could force better policing of the corporate officers
There is a possibility of over deterrence that would force inefficiency.

MPC 2.07(1)(c) is more restrictive than respondent superior from common-law, it’s difficult for the prosecutor to prove because it is corporately friendly. Anyone acting illegally isn’t acting on behalf of the corporation, the behavior must be authorized or recklessly tolerated (defense can say the act was not recklessly tolerated).

MPC 2.07(6) (a) and (b): this does help the prosecution get after the officers. Can’t say you’re acting under orders and escape liability.

NY Central & Hudson River Railroad Co. v. US: involves rebating for sugar shipments. Corporation held liable.

US v. Hilton Hotels Corp.: an employee of the corporation violated his instructions and acted illegally. Corporation held liable.

Both of these cases are respondent superior. They held that any employee’s illegal act makes a corporation liable. This rides roughshod over criminal law ideas of mens rea. This would mean even actions counter to the interests of the corporation can lead to liability (like tort law)
In criminal law there must be personal blameworthiness as in Regina v. Cunningham and Regina v. Faulkner (unless you are using strict liability). More correctly corporate officers are not held liable for subordinate acts (not strict liability/respondent superior), but rather for their failure to prevent acts or violations

US v. Park: CEO of a supermarket company held liable for rodents in the warehouses. The original trial court’s instruction could hold  liable even if he took steps to stop the rodents. The Supreme Court said due diligence isn’t enough, the  must be powerless to stop the illegal acts to avoid liability (strict liability). The Court said the law (FDCA) imposes an affirmative duty, once the  has notice of the violations; if he does not act this is an omission.
6. Conspiracy: this is an agreement to commit an unlawful act or series of such act. An express agreement need not be proved. An agreement can exist although not all of the parties to it have knowledge of every detail of the arrangement, as long as each party is aware of its essential nature. You can’t just help people do a conspiracy the others must know you intend to help (i.e. that you’re part of the agreement). This is a tremendously powerful tool in the hands of a prosecutor. There are two functions of conspiracy law:

provides an alternative for law of attempts; punishing inchoate episodes (offenses). With these cases, there is no substantial step required, if the government moves in early, the  can be charged with conspiracy before the attempt has even happened. Conspiracy is any step in furtherance of the agreement (really a mental crime).

Shouldn’t the law of attempts be enough for inchoate crimes? Conspiracy doesn’t require the substantial step, but courts have defined almost any act as an overt act which is a step (although this is actually less of a requirement). Conspiracy is not punishing people for what they did, it’s actually placing people under control for what they might do in the future (for flirting with committing a crime).

provides a way to increase sentencing: adds an additional charge on top of the first crime (do this because you can’t be convicted of attempt and the actual crime, but conspiracy is a separate crime). This is double charging not allowed under the MPC 1.07(1)(b).

Critics of conspiracy say:

too vague: it’s an agreement between criminals, but not really ever explicit (not written and rarely even oral, so how do you define it?)
basically a mental crime (punishing for bad thoughts)
aggregates the degree of crime above that of offense
criminalizes some acts that wouldn’t be a crime if committed by a single individual
incriminates people on the fringe margins of the offense, who wouldn’t be guilty under rules of accomplice liability (get runners in drug operations to get to the drug kingpin)
venue is shifty: can be brought to trial anywhere, not just where the crime occurs
joinder rules: allows all s to be brought in one trial so that a minor figure could be tried alongside the kingpins (guilt by association in jury’s mind, also cause s to point fingers at each other).
Hearsay exception: allow hearsay in when it wouldn’t normally be, even for before the crime (“Jacobs told me that Giestfeld was plotting to kill Chua”)
1. Bootstrapping problem: whenever a judge determines there is enough evidence to show a conspiracy then the hearsay testimony proving the conspiracy is allowed in. The case may be about proving a conspiracy, but the testimony is allowed in based on the exception that a conspiracy already exists.
Statute of limitations does not begin running until the conspiracy is done (not when the substantive crime is committed)

Pinkerton v. US: Two brothers were guilty of conspiracy to evade taxes on making liquor. One of the brothers was in jail when all of the illegal activities took place and did not participate directly at all. Nevertheless Daniel (the brother in jail) was held to be part of the conspiracy.

This case set up the Pinkerton rule (federal) that made a  who only was part of the original agreement but did not participate in any further activities liable for all crimes committed in furtherance of that agreement (even with out his direct participation).
This is an expansive doctrine of accomplice liability (it makes a conspirator more culpable than an accomplice). It says that each co- is responsible for all the substantive crimes committed in furtherance of the agreement by every other co-conspirator.
MPC doesn’t have this rule. MPC 2.06 is the only way you can be held liable for the crimes of another, but under MPC 2.06(3)(a)(ii) you still need to act with purpose.

State v. Bridges:  got in a fight and recruited two accomplices to help him when the fight. These accomplices got some guns and one of them killed one of the by-standers.  wasn’t guilty originally as an accomplice because he didn’t have (1) purpose to commit the crime, or (2) purpose to assist or aid. The Supreme Court of NJ made him guilty basically for mental negligence: guilty not only of every crime in furtherance of agreement but every substantive crime foreseeably possible (very expansive).

Interstate Circuit, Inc. v. US: movie theaters violating Sherman Anti-Trust Act. Each distributor got a letter and agreed with the theaters to over charge, but did not communicate with other distributors. The question here is whether conscious parallelism is sufficient for an agreement (conspiracy). This seems to water down the idea of conspiracy, there’s really no agreement needed at all with this.

People v. Lauria:  ran a phone answering that several prostitutes were using. He knew some where prostitutes but he did not make any extra money from them. He was not guilty because he did not have stake in the venture. This would be an expansion on the law, because  could be gotten for other lesser crimes, and this is after the fact (conspiracy is to prevent).

Garcia v. State: Can  be convicted of conspiracy to commit homicide when the only other person was an undercover cop feigning agreement? Bilateral conspiracy is part of common-law, but MPC has the idea of a unilateral agreement. It depends if you look at this as an attempt to conspire (can’t have an attempt at an attempt) or it could be that this conspiracy is the crime itself (the coming together in a cabal).

We look at conspiracy as a plan, it is very much linked to the objective of the conspiracy. Combining is not itself the crime.
Garcia could still be gotten for unilateral conspiracy under MPC 5.04.
Federal conspiracy law (historic common law) is the bilateral rule (most cases we looked at).

US v. Feola: ’s planning to steal money from who they thought were prospective drug buyers, drew guns on who were actually undercover federal agents. Charged with assaulting and conspiring to assault federal officers. They were convicted of assaulting federal officers (ignorance that the victims were federal officers wasn’t enough, they still intended to assault). How can it be ruled that they conspired (agreed) to assault a federal officer when they were ignorant of the facts (no mens rea)? Nevertheless the Court convicted them on conspiracy as well.

 (and Court agrees) the dispute is purely jurisdictional: it doesn’t matter if you knew it was a federal offense.
Is there a higher mens rea for conspiracy than for the substantive offense? Yes:

linguistic: conspire means intentionally with all full knowledge
doctrinal reason: if you don’t require proof of intent to act as a criminal officer this enlarges ’s agreement (makes it very murky)
policy: conspiracy is a dangerous doctrine that should be limited

Traffic light question: While one may, for instance, be guilty of running past a traffic light of whose existence on is ignorant, one cannot be guilty of conspiring to run past such a light, for one cannot agree to run past a light unless one supposes that there is a light to run past (Feola court mentioned this but still convicted).

Response: We fail to see how the agreement is any less blameworthy or constitutes less of a danger to society because the participants are unaware of which body of law they intend to violate (merely a jurisdictional question).

Ketteakos v. US: Brown acted as an illegal loan procurer for several different people. There were actually multiple conspiracies (each between Brown and the individual loan recipients,  was one of these recipients) but the prosecution tried them as one big conspiracy.  appeals for the prosecution as one big conspiracy.  got off.  feels this was an error, but a “harmless one”:

 says the faulty jury instruction helped  because it was actually much harder to find one big conspiracy than for many separate two person ones
 says instruction was prejudicial because you would include everyone’s hearsay and as a group it makes  look more guilty
 says the jury actually split them up though because only some ’s were convicted while some were acquitted and others weren’t even indicted.
 says they hall didn’t do the same crime (to steal cars in general, as opposed to the same offense: to steal the same care together)

Wheel conspiracy rationale: it’s like a wheel with Brown (the procurer) at the center and each  at the end of a spoke, only there is no rim (an awareness of the existence of each other and action in furtherance of some single, illegal enterprise) to tie them all together. Proof of multiple conspiracies under an indictment alleging a single conspiracy constituted a material variance requiring reversal. There is a right not to be tried en masse for the conglomeration of distinct and separate offenses committed by others. This protects against the “spill-over effect,” the transference of guilt from members of one conspiracy to members of another.

US c. Braverman: the Government indicted a group of s on seven counts, each charging a conspiracy to violate a separate provision of the internal revenue laws. The court ruled that one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of one statute several times. Each sale was a violation but of the same statute. Is it one agreement with seven parts, or seven agreements? There’s no way to know because conspiracy is an artificial construct with no real agreements.

MPC 5.03 (2): doesn’t go to guilt or innocence, goes to joinder: who you can be tried with (use this section to get all involved in).

MPC 5.03(3): sounds like Braverman case with multiple offenses, only one conspiracy

why isn’t a conspiracy to commit each crime a separate offense (it would be in attempts law)
could say this isn’t fair to someone who just does one crime after the agreement, but gets the entire conspiracy charge
response is that conspiracy isn’t just about planning a particular crime, but rather to punish people forming a criminal organization

MPC 5.03(4):

joinder (a)(i) refers to (2) meaning the s can be joinded together
(b)(i) limits where the trial can happen: general rule id that  can be tried in any place where a co-conspirator committed an act (could even be a trial with a co-conspirator who  didn’t actually even meet or agree with).
(b)(ii) refers to hearsay: hearsay about someone else can’t be used against you

Blumenthal v. US: owner of a wholesale liquor dealing agency conspired with some unconnected local business men. The owner of liquor agency would receive whiskey under a false name and sell it through the business people at an illegally high price. Each business person was unaware of the others actions. The business people also did not know of the where the whiskey originally came from. All were convicted of one conspiracy.  claimed there were two conspiracies (one between unknown original seller and the liquor agency and the second between agency and the business people), but the Court upheld the conviction saying the two agreements were merely steps in the formation of a larger and ultimately more general conspiracy.

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