Attempt, Impossibility, Accomplice liability, Conspiracy

1
TUTORIAL 4

• Attempt, Impossibility, Accomplice liability,
  Conspiracy

2
Attempt

• M.R. -- Purpose (MPC as believed)
• A.R.
• First step
• Last step
• Dangerous Proximity
• Unequivocality Test (res ipsa loquitor)
• MPC Substantial step strongly corroborative of
  intent

3
Impossiblity

• Is defendant guilty of attempt?
• M.R. Purpose
• A.R. Last step
• Is it factual or legal impossibility?
• MPC approach
• If the circumstances were as D believed them to
  be, would there be a crime?
• Should charge be mitigated or dismissed because D
  or Ds actions pose little risk of violating the
  law or danger to others?

4
QUESTION 1 Hypo 1

• Attempt?
• Factual or legal impossibility?
• MPC approach

5
QUESTION 1 - Hypo 2

• Attempt?
• M.R. ??
• Actus Reus?
• First step
• Last step
• Dangerous proximity
• Unequivocality
• Substantial step strongly corroborative of intent

6
QUESTION 1 Hypo 3

• Attempt
• Legal or factual impossibility
• MPC Approach

7
ACCOMPLICE LIABILITY

• A.R.
• Help
• M.R.
• Knowingly help
• Purpose for crime to succeed

8
NUANCES OF ACCOMPLICE LIABILITY

• Mens Rea
• Effect of help not enough mere presence
  generally not enough
• Must be purposely, not just knowingly
• Dont need to know things that principal does not
  need to know
• Negligence crimes only require negligence
• If different crime committed, need to determine
  if reasonably foreseeable or natural and
  probable result

9
Accomplice Liability

• Actus Reus
• Dont need much
• Encouragement sufficient
• Principal need not know person is aiding
• Presence is enough if prior agreement

10
Principal Need Not be Convicted

• Culpable, but unconvicted, principals
• Immunity
• Separate defenses
• Separate juries

11
CONSPIRACYAn agreement between two or more
persons to commit a crime.

• A.R.
• Agree
• M.R.
• Intend to agree
• Purpose for crime to succeed
• Overt Act

12
Actus Reus - Agree

• Need not be express agreement
• Tacit, implied agreements okay
• Shown by concerted action
• All co-cs need not agree at same time or know
  each other

13
Two or more persons

• Gebardi Rule
• Does not include persons protected as victims
  under statute
• Wharton Rule
• Do not charge conspiracy when crime necessarily
  requires two persons (But, Iannelli )
• Bilateral v. Unilateral approach
• Bilateral Fed / Cal.
• Unilateral MPC

14
Mens Rea

• Must have purpose
• Proving purpose through direct evidence
• Proving purpose through inferences (knowledge )
• Stake in the venture
• No legitimate use
• Grossly disproportionate volume

15
OVERT ACT

• Any act (need not be unlawful) to show conspiracy
  is moving forward
• May be committed by any conspirator
• Only need one

16
CO-CONSPIRATOR LIABILITY

• Pinkerton
• Co-c automatically guilty of criminal acts of
  co-conspirators in furtherance of conspiracy
• Need not do anything to help
• Need not even know co-c will commit that crime

17
SCOPE OF CONSPIRACIES

• Kotteakos/ Wheel

• Chain
• Manufacturer
• Middleman
• Distributors

What connects the spokes? common venture
18
Abandonment

• To avoid co-c liability
• Full and voluntary renunciation
• Must notify co-c
• To avoid conspiracy charge (not available at
  common law)
• Full and voluntary renunciation
• Must notify co-c or police
• Must thwart

19
QUESTION 2

• Missy
• Principal to bank robbery
• Conspiracy
• AR
• MR
• Overt Act
• Betsy
• Accomplice to bank robbery
• Conspiracy
• Co-C liability?