Serena Essapour has discovered some information regarding Criminal Law III Winter Start Week 2 Summer 2010 and shared in the form of PPT here.

1. Criminal Law III Winter
Start
Week 2 Summer 2010
John C. Schick
209.235.2937
jschick@humphreys.edu
jcschick@earthlink.net

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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)

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. 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

27. 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.

28. 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

29. 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.

30. 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.

31. 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.

32. 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.

33. 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.

34. 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.

35. 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.

36. THANK YOU