Attempted Crimes

United States v. Howard, 766 F.3d 414 (5th Cir. 2014)

The Fifth Circuit upheld the defendant’s conviction for attempted enticement of a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b). The defendant communicated with an undercover agent about having sex with the agent’s daughter. There were several communications and the defendant instructed the agent to have sexual contact with the daughter to get her ready (groomed) and also sent a nude photo of himself. However, when the agent suggested that the defendant travel to meet “her” and the daughter, he refused. The Fifth Circuit held that the evidence was sufficient to support an attempt conviction, but just barely and that this case represented the outer limit of what could be prosecuted as an attempt. Id. at 427.

United States v. Goldtooth, 754 F.3d 763 (9th Cir. 2014)

Though the crime of armed robbery is a general intent offense, the crime of attempted armed robbery requires proof of the specific intent to commit the offense. A robbery offense only requires proof of an intentional taking, without additional proof of the intent to steal. Attempted robbery, however, requires proof of the specific intent to take the property by force, violence or intimidation.

United States v. Thomas, 690 F.3d 358 (5th Cir. 2012)

Venue for the attempt crime was not proper in Texas. Though the conspiracy offense could be prosecuted in Texas based on the conduct of defendant’s co-conspirators, the attempt offense could only be prosecuted where the defendant took substantial steps toward the commission of the crime.

United States v. Chi Tong Kuok, 671 F.3d 931 (9th Cir. 2012)

It is not a violation of the Arms Expert Control Act to attempt to cause another person to violate the AECA. It is a crime to export or attempt to export a defense article, but it is not a crime to attempt to cause another person to do so.

United States v. Foy, 641 F.3d 455 (10th Cir. 2011)

Venue for an attempt crime is not proper in the district where other people involved in the attempted offense engage in the preparatory conduct if the defendant himself does not engage in such conduct in that district. Venue by imputation is appropriate in a conspiracy case, but not in an attempt case.

United States v. Gladish, 536 F.3d 646 (7th Cir. 2008)

The defendant communicated with a person he believed was a young girl (actually an undercover agent) in an Internet chatroom. He suggested that at some point in the future, they should engage in sex. The Seventh Circuit held that this “hot air” did not qualify as enticement to engage in prohibited sexual activity in violation of 18 U.S.C. § 2422(b). Equating the enticement statute to an attempted crime, the court held that such talk did not involve a “substantial step” toward the commission of the crime. Judge Posner quoted T.S. Elliot: “Between the Conception; And the Creation; Between the Emotion; And the Response; Falls the Shadow.”

United States v. Kenyon, 481 F.3d 1054 (8th Cir. 2007)

Attempt crimes require proof of specific intent to commit the crime. Consequently, a defendant may defend on the basis that he did not intend to commit the crime, even if the crime itself is not a specific intent crime. In this case, the defendant was charged with attempt to commit child sex abuse. He claimed that he was too intoxicated to have that intent. Even though intoxication is not a defense to the crime of sex abuse, it is a defense to the crime of attempt to commit sex abuse. There was sufficient evidence of the defendant’s intoxication in this case to warrant the giving of an intoxication instruction and the failure to do so was reversible error as to those counts.

United States v. Cooper, 121 F.3d 130 (3rd Cir. 1997)

The defendant sold a bag of what was claimed to be cocaine to an informant on one occasion. The substance turned out to be procaine, which is not a controlled substance. The defendant and the informant then planned another transaction, but the defendant detected the surveillance and aborted the transaction. He then threatened the informant and was charged with tampering with a witness. To be guilty of that offense, the underlying crime must be a federal offense. No such federal offense existed in this case. The defendant was not guilty of attempted sale of cocaine, because he knew the substance he was selling was not a controlled substance and therefore he did not "attempt" to commit that crime.

United States v. Ballew, 369 F.3d 450 (5th Cir. 2004)

The defendant was charged under 18 U.S.C. § 2113(a) with “by force, violence an intimidation, intentionally attempt to take from the person and presence of another, money [of a bank].” The evidence established that he did enter the bank with the intention of robbing it (and arguably did attempt to rob the bank), but he never used any force or intimidation. He simply was waiting on a couch in anticipation of meeting with a manager, then left and later was stopped by the police when he returned the bank. He never actually used any force or intimidation. This does not qualify as “using force or intimidation in an attempt to rob a bank.” Attempted intimidation does not suffice.

United States v. $500,000 in U.S. Currency (Gordin), 62 F.3d 59 (2d Cir. 1995)

The defendant boarded a domestic flight to another city in the U.S. and was then going to connect to a foreign flight. He did not report the currency in his possession. The government could not proceed to forfeit the money on the theory that the defendant was “attempting” to violate the CTR laws because the law could not be violated until the defendant attempted to board the international flight and the offense was not “attempted” prior to that time. United States v. Delvecchio, 816 F.2d 859 (2d Cir. 1987) The defendants agreed on the terms of a heroin purchase, but stayed home at the appointed hour of the sale. The Court holds that they did not attempt to possess heroin because they did not take the required substantial step toward completion of the crime. The verbal agreement alone does not suffice to constitute the substantial step needed to prosecute for the attempt to commit the substantive offense.

United States v. Baker, 985 F.2d 1248 (4th Cir. 1993)

The defendant was charged with attempted possession with intent to distribute cocaine. He made numerous attempts to obtain money from a bank, and his supplier was arrested in possession of a kilogram of cocaine. The evidence was insufficient to convict the defendant of attempting to possess that cocaine. He might have been attempting to obtain money to pay a back bill for cocaine; he might have been attempting to obtain money to flee the area (he was being sought by the sheriff and his wife). Even more importantly, it was far from clear that he intended to purchase the cocaine in order to distribute it, as opposed to consuming it.

United States v. Harper, 33 F.3d 1143 (9th Cir. 1994)

The defendant left money in an automated teller machine, which generally will cause a bank employee to come to the bank to fix the problem. The defendant’s intent was to rob the bank when the serviceman arrived. The defendant was arrested in his car, apparently waiting for the serviceman to arrive. The defendant’s conduct did not amount to a substantial step toward the commission of the crime. Thus, he could not be convicted of attempted bank robbery. The defendant had done little more than simply “make an appointment” with a person he intended to rob.

United States v. Darby, 857 F.2d 623 (9th Cir. 1988)

The defendant testified that he put a “stick-up” note in an empty bag in front of a bank teller because he wanted to be arrested and given psychiatric care, which he could not obtain through more conventional means. The trial court refused to instruct the jury that, in order to be convicted of attempted bank robbery, the defendant must intend to take the property or money. This was reversible error.

United States v. Still, 850 F.2d 607 (9th Cir. 1988)

The defendant was observed wearing a blond wig and sitting in a van, with the engine running, approximately 200 feet from a bank. The defendant admitted after his arrest that he had planned to rob the bank, but his conduct was not a “substantial step” toward the commission of the bank robbery, and his conviction of attempted bank robbery was reversed.

United States v. Buffington, 815 F.2d 1292 (9th Cir. 1987)

The defendants were assembling disguises and weapons and were “casing” a bank. The Court of Appeals for the Ninth Circuit holds that this is not sufficient, standing alone, to convict one of attempted robbery of the bank. The conduct of the defendants neither demonstrated intent to commit bank robbery nor constituted a substantial step toward the commission of the crime. Both are prerequisites for an attempt conviction.