4.18.00 Attempt

In order to carry its burden of proof for the crime of attempt to [______] as charged in Count [___] of the indictment, the government must prove the following two things beyond a reasonable doubt:

First, that [defendant] intended to commit the crime of [______]; and

Second, that [defendant] engaged in a purposeful act that, under the circumstances as [he/she] believed them to be, amounted to a substantial step toward the commission of that crime and strongly corroborated [his/her] criminal intent.

A “substantial step” is an act in furtherance of the criminal scheme. A “substantial step” must be something more than mere preparation, but less than the last act necessary before the substantive crime is completed.

The “substantial step” may itself prove the intent to commit the crime, but only if it unequivocally demonstrates such an intent.

Comment(s)

(1) “There is no general federal statute which proscribes the attempt to commit a criminal offense. Thus, attempt is actionable only where a specific criminal statute outlaws both its actual as well as its attempted violation.” United States v. Rivera-Sola, 713 F.2d 866, 869 (1st Cir. 1983). An attempt offense may be incorporated into a particular statute, e.g., 18 U.S.C. § 2113(a) (bank robbery), or set forth in a separate statute, e.g., 21 U.S.C. § 846 (attempted drug possession).

(2) Although “[t]here is no statutory definition of attempt anywhere in the federal law,” the First Circuit has adopted the Model Penal Code standard. United States v. Dworken, 855 F.2d 12, 16-17 (1st Cir. 1988) (applying Model Penal Code § 5.01(1)(c) to attempt under federal drug law, 21 U.S.C. § 846); accord United States v. Doyon, 194 F.3d 207, 210 (1st Cir. 1999) (applying Model Penal Code definition of attempt).

(3) The Model Penal Code’s standard for attempt covers acts or omissions. Model Penal Code § 5.01(1)(c). Because the First Circuit has only dealt with “overt act” cases to date, see e.g., United States v. George, 752 F.2d 749, 756 (1st Cir. 1985); Rivera-Sola, 713 F.2d at 869, it has not had occasion to address circumstances under which an omission could amount to a substantial step.

(4) Under the Model Penal Code, a defendant commits an attempt if he or she performs an act that, “under the circumstances as he[/she] believes them to be,” constitutes a substantial step toward commission of a crime. Model Penal Code § 5.01(1)(c); see also Dworken, 855 F.2d at 19. Factual impossibility is not a defense to the charge of attempt. See United States v. Medina-Garcia, 918 F.2d 4, 8 (1st Cir. 1990).

(5) “If the substantial steps are themselves the sole proof of the criminal intent, then those steps unequivocally must evidence such an intent; that is, it must be clear that there was a criminal design and that the intent was not to commit some non-criminal act.” Dworken, 855 F.2d at 17; see also United States v. Levy-Cordero, 67 F.3d 1002, 1019 (1st Cir. 1995) (discussing the substantial step requirement); Rivera-Sola, 713 F.2d at 869-70 (same). On the other hand, “[i]f there is separate evidence of criminal intent independent from that provided by the substantial steps (e.g., a confessed admission of a design to commit a crime), then substantial steps . . . must merely corroborate that intent.” Dworken, 855 F.2d at 17 n.3 (emphasis added).