Chapter 3 Anticipatory Offenses and Parties to Crimes
Chapter Outline
Introduction
Solicitation
Elements of Solicitation
Defenses to Solicitation
Attempt
Elements of Attempt
Defenses to Attempt
The Spread of AIDS: An Attempt Crime?
Conspiracy
The Problem of Definition
Elements of Conspiracy
The Act or Agreement
The Problem of Multiple Agreements
The Requirement of an Act Plus an Agreement
The Intent
Limitations on Parties to Conspiracy
Defenses to Conspiracy
Other Issues in Conspiracy
Parties to Crimes
1

Elements of Accomplice Liability
Other Issues of Accomplice Liability
The Wharton Rule
Defenses to Accomplice Liability
The Scope of Accomplice Liability
Prosecuting Anticipatory Offenses and Parties to Crimes
Federal RICO Statute
State RICO Statutes
Summary
Study Questions
For Debate
Key Terms
Case Analysis
Internet Activity
Notes
Key Terms
Accessory after the fact: One who—knowing that a felony has been committed— receives, relieves, comforts, or assists the felon to hinder apprehension and conviction.
2

Accessory before the fact: One who incites, orders, counsels, or abets a crime but is not present when the crime is committed.
Accomplice: A person who participates in the responsibility for a crime but not in the criminal act itself. Such a person assumes criminal culpability in terms of his or her degree of participation in the criminal activity.
Acquired immune deficiency syndrome (AIDS): A deadly disease first discovered in
1979 that is spreading rapidly throughout the world. The virus (human immunodeficiency virus or HIV) that causes AIDS is spread through the exchange of bodily fluids, which occurs most frequently during sexual contact but may occur in other ways such as blood transfusions and the use of contaminated needles. There is no known cure for the disease.
Aid and abet: The act of assisting or facilitating the commission of a crime.
Attempt: A crime that may be defined as an act involving two basic elements: a step toward the commission of a crime and a specific intent to commit that crime.
Complicity: A term used to describe the actions of persons who are considered legally responsible for a crime although they did not participate in the act itself. See also
Accomplice.
3

Conspiracy: Agreeing with another to join together for the purpose of committing an unlawful act or agreeing to use unlawful means to commit an act that would otherwise be lawful. The unlawful act does not have to be committed; the crime of conspiracy involves the agreement to engage in the unlawful act.
Defense: A legal response by the defendant. It may consist only of a denial of the factual allegations of the prosecution. A defense that offers new factual allegations in an effort to negate the charges is an affirmative defense.
Facilitation: Making it easier for another to commit a crime.
Factual impossibility: In the law, a defense that is possible only when there are circumstances, unknown to the actor, that prevent the commission of an offense, such as an attempt crime.
Forfeiture: The process of taking from an accused items (such as money, a boat, a car) thought to be associated with illegal acts, such as drug trafficking. The property may be taken by the government and held until the case is decided; upon a conviction it may be retained by the government and sold or disposed of in some other way.
4

Inchoate crimes: Crimes that are imperfect or uncompleted and that may lead to other crimes. For example, an attempt to commit rape may lead to rape, but even if it does not, the attempt is a crime.
Legal impossibility: Defense providing that even if the defendant’s intentions—for example, to commit an attempt crime—were fully performed or set in motion, a crime would not have been committed.
Pinkerton rule: A rule stating that a co-conspirator may be held accountable for the acts of fellow conspirators, even though the requirements of liability for the acts of accomplices are not met.
Principal: Under common law, the person who committed the crime, in contrast to the accessory after the fact or accessory before the fact, who assisted in the crime or who encouraged another to commit a crime. Most modern statutes do not make this distinction. Both are treated as principals, and accessories may be convicted even if the principal has not been convicted.
Principal in the first degree: One who perpetrates the crime either through his or her own acts or by the use of inanimate objects or innocent people.
5

Principal in the second degree: One who incites or abets the commission of the crime and is present actually or constructively.
Racketeer Influenced and Corrupt Organizations Act . See RICO.
Racketeering: The process of engaging in a racket such as extortion or conspiracy to obtain an illegal goal by means of threats.
RICO: The Racketeer Influenced and Corrupt Organizations Act was passed by
Congress in 1970 to combat organized crime but has also been applied beyond that specific area of criminal activity.
Solicitation: The asking, inciting, ordering, urgently requesting, or enticing of another person to commit a crime.
Wharton rule: A rule stating that two people engaging in crimes such as adultery, bigamy, and incest or any other acts that require more than one person for their commission may not be prosecuted for conspiracy to commit those crimes. A third party must be involved for a conspiracy to exist. Some jurisdictions reject this rule.
Chapter Overview
6

 Anticipatory crimes cover an area known as inchoate crimes, those that have not been completed. They are some of the most difficult to prove.
 Soliciting another person to commit a crime is a crime itself, whether directed at a crowd or an individual.
 Similarly, an attempt to carry out a crime, even if the attempt is botched or fails, is a crime in and of itself.
 How do we distinguish between taking steps to carry out a crime and those that are not sufficient to produce a criminal event?
 Those who abandon or quit an attempted crime may or may not be criminally liable.
Defenses to attempt crimes are as difficult to prove as the crimes themselves.
 If a crime cannot possibly be committed, one may defend oneself by arguing just that.
 Conspiracy involves the actions of more than one person and is favored by prosecutors for its ease of use.
 Conspiracy cases, however, involve many difficult-to-define phrases.
7

 Individuals may also be accessories to a crime by acting in complicity with the offender.
 RICO statutes have become useful tools for attacking complex conspiracies and organized crime.
Learning Objectives
After studying this chapter the student will:
1.
Be able to define the inchoate crimes.
2.
Be able to discuss the defenses available in each inchoate crime.
3.
Be able to discuss the problems of definition in the crime of conspiracy.
4.
Be able to define complicity and accessory to crime.
5.
Be able to define RICO and discuss its uses.
6.
Be able to define legal impossibility and factual impossibility.
Review Questions
1.
Define what is meant by the word “inchoate.”
2.
Name and give an example of the inchoate crimes.
3.
Discuss the problems incident to the intent requirement in the crime of attempt.
4.
What are the elements of the offense of attempt?
8

5.
What are the problems with definition in the crime of conspiracy?
6.
Discuss the common law degrees of complicity, and explain how the modern approach differs.
7.
Define RICO, its history, and its application.
8.
Define legal impossibility and give an example.
9.
Define factual impossibility and give an example.
10.
What are the defenses available in an inchoate offense?
11.
Explain the defense of abandonment and when it may be available.
12.
What are the elements of conspiracy?
13.
When, if ever, may the agreement in a conspiracy be the actus reus ?
14.
Discuss the element of intent in the crime of conspiracy.
15.
Name the four limitations on parties to conspiracy.
Multiple Choice Questions
1. A person who incites or abets the commission of a crime and is present actually or constructively is considered to be a(n): a. accessory before the fact. b. principal in the first degree. c. accessory after the fact. d. principal in the second degree.
2. Which of the following is true in regard to conspiracy?
9

a. Conspiracy permits criminal prosecution for the behavior of others as well as for one’s own acts. b. Conspiracy is a favorite crime of many prosecutors. c. Conspiracy may be distinguished from attempt in that attempt requires an act or preparation, whereas the agreement may be sufficient to constitute the act requirement in conspiracy. d. All of these are true.
3. Which of the following is true of forfeitures? a. RICO is the only federal statute that permits forfeitures. b. RICO is used frequently as a basis for civil cases because of the potentially high penalties.
c. Individuals who lose property through forfeiture laws are always charged with crimes. d. All of these are true.
4. Which of the following is an example of an inchoate crime? a. attempt b. murder c. rape d. forgery
5. Which of the following is true of solicitation? a. The incitement may be directed at a crowd, not just a particular individual. b. Solicitation requires a purpose to promote or facilitate the commission of a crime. c. In some states, renouncing the solicitation is permitted as a defense to solicitation. d. All of these are true.
10

6. ________________ crimes are important not only because they are threatening in and of themselves, but also because they may lead to other crimes. a. Strict liability b. Conspiracy c. Inchoate d. Petty
7. Enticing another person to commit a crime is known as: a. conspiracy. b. solicitation. c. aiding and abetting. d. vicarious liability.
8. A(n) __________________ crime is defined as an act involving two basic elements: a step toward the commission of a crime and a specific intent to commit that crime. a. conspiracy b. inchoate c. strict liability d. attempt
9. To _________________ is to assist or facilitate the commission of a crime. a. aid and abet b. conspire c. attempt d. coerce
10. Which of the following is a defense in an attempt case?
11

a. impossibility b. renunciation c. incompleteness d. degree of seriousness
11. Some state legislatures have enacted statutes criminalizing the knowing exposure of another to: a. syphilis. b. herpes. c. HIV or AIDS. d. All of these are included in the statutes.
12. ___________________ means agreeing with another to join together for the purpose of committing an unlawful act or agreeing to use unlawful means to commit an act that would otherwise be lawful. a. Attempt b. Conspiracy c. Aid and abet d. Coercion
13. ____________________was intended by Congress to reach serious cases—major violators who engage in a pattern of racketeering activity. a. The Wharton rule b. Forfeiture c. The Pinkerton rule d. RICO
12

14. ____________________ means association in a wrongful act. a. Negligence b. Mens rea c. Complicity d. Tort
15. Under the common law a(n) __________________ was the person who committed the crime. a. accessory b. principal c. accomplice d. co-conspirator
16. In recent years the U.S. Department of Justice has indicted ______________ who, they allege, have engaged in aiding and abetting or conspiring with their clients. a. attorneys b. doctors c. psychologists d. accountants
17. The ______________ rule is a limitation on parties to the crime of conspiracy. a. accomplice b. principal c. facilitation d. Wharton
18. Which of the following does RICO prohibit?
13

a. conducting or participating in an enterprise’s affairs through a pattern of racketeering activity b. possession of marijuana c. prostitution d. treason
19. The ________________ holds that a co-conspirator may be held accountable for the acts of fellow conspirators even though the requirements of criminal culpability for the acts of accomplices are not met. a. Pinkerton rule b. Wharton rule c. husband-and-wife rule d. two-or-more rule
20. __________________ is the taking by the government of money, personal items, or assets that were secured from criminal acts. a. Racketeering b. Confiscation c. Arbitration d. Forfeiture
Fill-in-the-Blank Questions
1. ____________________ One who, knowing that a felony has been committed, receives, relieves, comforts, or assists the felon to hinder apprehension and conviction.
14

2. ____________________ The Racketeer Influenced and Corrupt Organizations Act, which
Congress passed in 1970 to combat organized crime.
3. ____________________ A person who participates in the responsibility for a crime, but not in the criminal act itself. Such a person assumes criminal culpability in terms of his or her degree of participation in the criminal activity.
4. ____________________ A deadly disease first discovered in 1979 and spreading rapidly throughout the world.
5. ____________________ Defense providing that even if the defendant’s intentions—for example, to commit an attempt crime—were fully performed or set in motion, a crime would not have been committed.
6. ____________________ A rule stating that a co-conspirator may be held accountable for the acts of fellow conspirators, even though the requirements of liability for the acts of accomplices are not met.
7. ____________________ A term used to describe the actions of persons who are considered legally responsible for a crime although they did not participate in the act itself.
8. ____________________ Agreeing with another to join together for the purpose of committing an unlawful act, or agreeing to use unlawful means to commit an act that would otherwise be lawful.
9. ____________________ Making it easier for another to commit a crime.
10. ___________________ The asking, inciting, ordering, urgently requesting, or enticing of another person to commit a crime.
11. ___________________ A rule stating that two people engaging in crimes such as
15

adultery, bigamy, incest, or any other act that requires more than one person for their commission may not be prosecuted for conspiracy to commit those crimes. A third party must be involved for a conspiracy to exist.
12. ___________________ Crimes that are imperfect or uncompleted and that may lead to other crimes.
13. ___________________ The act of assisting or facilitating the commission of a crime.
14. ___________________ A crime that may be defined as an act involving two basic elements: a step toward the commission of a crime and a specific intent to commit that crime.
15. ___________________ Under common law, the person who committed the crime, in contrast to the accessory after the fact or accessory before the fact, who assisted in the crime or who encouraged another to commit a crime.
16. ___________________ One who perpetrates the crime either through his or her own acts or by the use of inanimate objects or innocent people.
17. ___________________ One who incites or abets the commission of the crime and is present actually or constructively.
18. ___________________ One who incites, orders, counsels, or abets a crime but is not present when the crime is committed.
19. ___________________ The process of engaging in a racket, such as extortion or conspiracy to obtain an illegal goal by means of threats.
20. ___________________ The process of taking from an accused items (such as money, a boat, a car) thought to be associated with illegal acts, such as drug trafficking. The property may be taken by the government and held until the case is decided; upon a
16

conviction it may be retained by the government and sold or disposed of in some other way.
21. ___________________ In the law, a defense that is possible only when there are circumstances, unknown to the actor, that prevent the commission of an offense, such as an attempt crime.
)
22. ___________________ A legal response by the defendant. It may consist only of a denial of the factual allegations of the prosecution. A defense that offers new factual allegations in an effort to negate the charges is an affirmative defense.
23. ___________________ Solicitation for this is p erhaps the most familiar solicitation crime.
24. ___________________ Oregan Court of Appeals case in 1991 in which the court refers to common law in its efforts to interpret the crime of solicitation.
25. ___________________ This state does not recognize the crime of being an accomplice to a negligent act, such as cruelty to an animal.
Short Answer Questions
1. Briefly explain the difference between an accessory before the fact and an accessory after the fact.
2. Briefly define accomplice.
3. Discuss RICO’s original purpose.
4. Briefly explain the difference between a principal in the first degree and a principal in the second degree.
17

5. List two differences between attempt and conspiracy.
ANSWER KEY
18

11. c
12. b
13. a
14. c
15. b
16. a
17. d
18. a
19. a
20. d
6. c
7. b
8. d
9. a
10. a
Multiple Choice Questions
1. d
2. d
3. b
4. a
5. d
19

Fill-in-the-Blank Questions
1. accessory after the fact
2. RICO
3. accomplice
4. AIDS
5. legal impossibility
6. Pinkerton rule
7. complicity
8. conspiracy
9. facilitation
10. solicitation
11. Wharton rule
12. inchoate crime
13. aid and abet
14. attempt
15. principal
16. principal in the first degree
17. principal in the second degree
18. accessory before the fact
19. racketeering
20. forfeiture
21. factual impossibility
20

22. defense
23. prostitution
24. State v. Lee
25. New Hampshire
21