Chapter 7. Final Instructions: Additional Bases for Criminal Responsibility 7.01 Attempt 7.02 Accomplice Liability; Aiding and Abetting 7.03 Responsibility for Substantive Offenses Committed by Co-Conspirators (Pinkerton Liability) 7.04 Withdrawal as a Defense to Substantive Offenses Committed by Co-Conspirators 7.05 Causing the Criminal Acts of Another 7.06 Corporate Criminal Responsibility 7.07 Personal Criminal Responsibility of a Corporate Agent 7.08 Accessory After the Fact 7.01 Attempt (Name) is charged with attempt to commit the crime of (state offense defendant is alleged to have attempted). An attempt to (state offense) is a federal crime even though the defendant did not actually complete the crime of (state offense). In order to find (name) guilty of attempt to (state offense), you must find that the government proved beyond a reasonable doubt each of the following two (2) elements: First: That (name) intended to commit the crime of (state offense), (as I have defined that offense) (as I will define that offense); and Second: That (name) performed an act(s) constituting a substantial step(s) toward the commission of (state offense) which strongly corroborates or confirms that (name) intended to commit that crime. With respect to the first element of attempt, you may not find (name) guilty of attempt to commit (state offense) merely because (he) (she) thought about it. You must find that the evidence proved beyond a reasonable doubt that (name)’s mental state passed beyond the stage of thinking about the crime to actually intending to commit it. With respect to the substantial step element, you may not find (name) guilty of attempt to commit (state offense) merely because (he) (she) made some plans to or some preparation for committing that crime. Instead, you must find that (name) took some firm, clear, undeniable action to accomplish (his) (her) intent to commit 1 (state offense). However, the substantial step element does not require the government to prove that the defendant did everything except the last act necessary to complete the crime. Comment See Kevin F. O’Malley, Jay E. Grenig, & Hon. William C. Lee, 2 Federal Jury Practice and Instructions (5th ed. 2000) [hereinafter O’Malley et al] §§ 21.01. 21.03, 21.04. For variations in other Circuits, see First Circuit § 4.01; Fifth Circuit § 1.32; Sixth Circuit § 5.01; Eighth Circuit § 8.01; Ninth Circuit § 5.3; Tenth Circuit § 1.32. When to Instruct on Attempt. When the indictment charges a completed offense but does not also charge an attempt to commit that offense, the trial court should consider instructing on attempt if one of the parties requests an attempt instruction and the evidence would permit a rational jury to acquit of the charged offense but find the defendant guilty of attempt to commit it. Fed. R. Crim. P. 31(c) provides: Lesser Offense or Attempt. A defendant may be found guilty of any of the following: (1) an offense necessarily included in the offense charged; (2) an attempt to commit the offense charged; or (3) an attempt to commit an offense necessarily included in the offense charged, if the attempt is an offense in its own right. Either as part of this instruction or separately, the trial judge should also instruct the jury on the definition or elements of the offense the defendant is charged with attempting, so that the jury will understand what the defendant must have intended to commit and taken a substantial step toward committing. Federal Attempt Provisions. There is no separate, general federal attempt statute. However, there are specific federal attempt statutes with respect to particular federal offenses or groups of offenses. See, e.g., 21 U.S.C. §§ 846, 963 (which identically provide that “[a]ny person who attempts ... to commit any offense defined by this subchapter [the federal narcotics offenses] shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt ....”). Other federal offenses include within their statutory definitions an attempt to commit the offense. See, e.g., 18 U.S.C. 2113(a) (“Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, ... any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, ....”). Attempt Defined. There is also no federal statutory definition of “attempt.” The Third Circuit has noted that when Congress uses a common law term, like attempt, it is presumed to 2 adopt the common law meaning. However, with respect to attempt as used in federal statutes, the Third Circuit and most federal appeals courts have adopted the Model Penal Code’s formulation. See, e.g., United States v. Earp, 84 Fed. Appx. 228, 232-34 (3d Cir 2004) (unpublished opinion containing thorough discussion of Third Circuit attempt law, citing many published decisions); United States v. Hsu, 155 F.3d 189, 202-03 (3d Cir. 1998) (“We adopt the Model Penal Code ... test for attempt because it is consistent with our own case law and with the great weight of modern precedent,” citing Kikumura, Cruz-Jiminez, and Everett); United States v. Cicco, 10 F.3d 980, 984-85 (3d Cir. 1993); United States v. Cruz-Jiminez, 977 F.2d 95, 102 (3d Cir. 1992); United States v. Kikumura, 918 F.2d 1084, 1108 (3d Cir. 1990); United States v. Everett, 700 F. 2d 900, 903-04 (3d Cir. 1983). Model Penal Code section 5.01(1)(c) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for the commission of the crime, he ... purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.” Model Penal Code § 5.01(1)(c). See, e.g., United States v. Earp, 84 Fed. Appx. at 233; United States v. Cruz-Jiminez, 977 F.2d at 102. In Cruz-Jiminez, the Third Circuit stated that this definition requires the government to prove: “(1) the intent, or kind of culpability otherwise required, to engage in criminal conduct; and (2) conduct constituting a ‘substantial step’ toward the commission of the substantive offense that strongly corroborates the criminal intent.” 997 F. 2d at 101-02 & n. 8. Although this language reflects the Model Penal Code’s statement that the person must act “with the kind of culpability otherwise required for the commission of the crime,” the Third Circuit has also stated that the mental state element for attempt is the intent to commit the offense the defendant is charged with attempting. See, e.g, United States v. Earp, 84 Fed. Appx. at 234 (stating that the District Court’s instruction “that the government was required to prove beyond a reasonable doubt that Earp had intended to commit each substantive offense” was “consistent with the law of attempt”); United States v. Hsu, 155 F.3d at 202 (“the defendant must (1) have the intent needed to commit a crime defined by the EEA”); United States v. Dworken, 855 F.2d 12, 16-17 (1st Cir. 1988), cited by, e.g., United States v. Cruz-Jiminez, 977 F.2d at 102 & n.8 (“‘Conduct designed to cause or culminate in the commission of a crime obviously yields an indication that the actor is disposed towards such activity.”. “Thus, the Code's standard for attempt is focused on discerning a significant intent or design to commit crime generally . Under the Code's standard, individuals with serious criminal propensities are identifiable, and may be convicted, upon proof of two elements: (1) an intent to engage in criminal conduct and (2) conduct constituting a ‘substantial step’ toward the commission of the substantive offense that strongly corroborates the criminal intent.”). See United States v. Bailey, 444 U.S. 394, 404 (1980) (in discussion of the distinction between specific and general intent, the Supreme Court observed that although general intent or knowledge is ordinarily sufficient for federal crimes, “[i]n certain narrow classes of crimes, however, heightened culpability [specific intent or purpose] has been thought to merit special attention. ... Another such example is the law of inchoate offenses such as attempt and conspiracy, where a heightened mental state separates criminality itself from otherwise innocuous behavior.”). Proof of the Mental State Requirement. Third Circuit cases state that when the government’s only evidence of a defendant’s intent to commit the offense attempted is the conduct 3 alleged to constitute the substantial steps towards commission of the offense, those steps must unambiguously or unequivocally show the defendant’s intent. However, when the government presents other evidence of the defendant’s intent besides the alleged substantial steps, those steps need not unambiguously or unequivocally show the defendant’s criminal intent, they need only strongly corroborate or confirm his or her intent. See, e.g., United States v. Earp, 84 Fed. Appx. 228, 233 (3d Cir. 2004) (not precedential); United States v. Cruz-Jiminez, 977 F.2d 95, 102 (3d Cir. 1992), citing United States v. Dworken, 855 F.2d 12, 17 & n.3 (1st Cir. 1988); United States v. Everett, 700 F.2d 900, 908-09 (3d Cir. 1983). The trial judge should instruct the jury on one or the other of these points depending on the nature of the evidence in the particular case. Substantial Step. With respect to the “substantial step” element generally, see, e.g., United States v.