FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 6 - CHAPTER 66
Go to Volume 6 Table of Contents - Go to Chapter 66 Table of Contents

66.2 Attempt: Mere Preparation Or Intent Not Sufficient

    66.2.1 Attempt: Defense Theory That Conduct Was Mere Preparation Rather Than A Substantial Step Toward Committing The Crime
    66.2.2 Attempt: Consideration Of The Time Of The Intended Perpetration
    66.2.3 Attempt: Reconnoitering Is Insufficient
    66.2.4 Assembling Disguises, Obtaining Weapons and “Casing” a Bank Not Sufficient For Attempt
    66.2.5 Attempted Robbery: Possession Of “Tools” Is Not Sufficient
    66.2.6 Attempt: Verbal Agreement Not Sufficient
    66.2.7 Attempt: Intent, Without An Act, Is Not Sufficient

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 6 - CHAPTER 66

RATIONALE: When it is the defense theory that the acts committed were not sufficient to constitute an attempt, special instruction may be necessary for the jury to understand the crucial distinction between mere preparation and a completed attempt.

POINTS AND AUTHORITIES: "It is admittedly difficult to draw the line between mere preparation to commit an offense, which does not constitute an attempt, and the taking of a substantial step toward commission of the crime, which does." (U.S. v. Harper (9th Cir. 1994) 33 F3d 1143, 1147.)

    "The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement toward the commission after the preparations are made. To illustrate: a party may purchase and load a gun, with the declared intention to shoot his neighbor; but until such movement is made to use the weapon upon the person of his intended victim, there is only preparation, and not an attempt." (People v. Murray (CA 1859) 14 Cal. 159; see also State v. Long (ME 1990) 577 A2d 765 [grabbing victim by shirt and pulling her toward car not sufficient evidence of attempted kidnapping].)

    Other examples of mere preparation include: "looking for the intended victim; purchasing and loading a gun; loading a rifle; obtaining a weapon for use in committing the intended crime; watching the intended victim’s house and procuring a rope to tie him in a contemplated robbery; ‘casing’ a bank but making no move toward the bank; procuring a hacksaw for use in jail breaking; taking a small girl into the woods and snatching a button from her clothing with intent to have sexual intercourse; inviting a young boy into an automobile with intent to commit indecency; or making financial arrangements for the performance of an unlawful abortion." (Wharton’s Criminal Law (West, 15th ed. 1993) § 696, pp. 621-23.)

    In other words, liability for attempt depends on what defendant has already done and not on what remains to be done. (See State v. Hanks (CT 1995) 665 A2d 102, 107.)

    In sum, an element of attempt is that "the defendant did something which was a substantial step toward committing the crime...." (9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 5.3 [Attempts] (2000); see also LaFave & Scott, Substantive Criminal Law (West, 1986) § 6.2(d)(4) p. 36 ["substantial step" language used in majority of modern codes].)

    See also FORECITE National™ 66.1.7 [Attempt: The Substantial Step Element].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.1.18 [Attempts].

See generally, FORECITE National™ 66.1.8 [Attempt: Federal Circuit Model Instructions And Notes].

    Mere preparation, which may consist of planning the offense or of devising, obtaining or arranging a means for its commission, is not sufficient to constitute an attempt. But the acts of a person who intends to commit a crime will constitute an attempt where they are an immediate step in the present execution of the criminal design, the progress of which would be completed unless interrupted by some circumstances not intended in the original design.

[See U.S. v. Mandujano (5th Cir. 1974) 499 F2d 370, 378.]

    Mere preparation, which may consist of planning the offense or of devising, obtaining or arranging the means for its commission, is not sufficient to constitute an attempt.  

[See SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 3-29-4 [Attempt To Commit Crime-Attempt-Distinguished From Preparation-Definition] (State Bar of South Dakota, 1996 Ed.); see also CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC No. 6.00 [Attempt-Defined] (West, 6th Ed. 1996).]

    There is no attempt unless the actions of the accused come dangerously close to or very near to the completion of the intended crime.

[Cf. CRIMINAL JURY INSTRUCTIONS - NEW YORK, CJI (NY) 2d 110.00 [Attempt To Commit A Crime] (New York Office of Court Administration 1996).]

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 6 - CHAPTER 66

PRACTICE NOTE: "The time of intended perpetration is a factor to be considered, and may be controlling in certain situations. Suppose D, intending to burn down the dwelling house of X, has entered the building with combustible materials which he has so arranged that the lighting of a fuse will be followed in due time by a roaring fire. If D has no intention of lighting the fire now -- if he has merely 'set the stage' so the fire can be started without loss of time when he returns on a future occasion -- this is merely preparation. It is not an attempt to commit arson. Had D, on the other hand, intended to light the fire at that time he would be guilty of attempted arson although arrested before he struck the match. If such was his intention, in fact, he was guilty of attempted arson when he entered the building, or even before an actual entry was accomplished." (Perkins & Boyce, Criminal Law (Foundation Press, 1982) ch. 6, § 3, pp. 619-620.)

    See also FORECITE National™ 66.1.7 [ Attempt: The Substantial Step Element].

See generally, FORECITE National™ 305.1.18 [Attempts].

See generally, FORECITE National™ 66.1.8 [Attempt: Federal Circuit Model Instructions And Notes].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 6 - CHAPTER 66

PRACTICE NOTE: Merely reconnoitering should not be sufficient to justify an attempt conviction. (See U.S. v. Still (9th Cir. 1988) 850 F2d 607, 610 [no substantial step as to robbery where defendant sat in van with motor running wearing a blonde wig 200 feet from the bank]; U.S. v. Buffington (9th Cir. 1987) 815 F2d 1292, 1303 [no substantial step toward robbery from reconnoitering-type activity by defendants]; but see Commonwealth v. Melnyczenko (PA 1992) 619 A2d 719, 721 [reconnoitering sufficient for attempt where defendant possessed burglary tools].)

    See also FORECITE National™ 66.1.7 [ Attempt: The Substantial Step Element].

RESEARCH NOTES:

LaFave & Scott, Substantive Criminal Law (West, 1999 Supp.) § 6.2.

See generally, FORECITE National™ 305.1.18 [Attempts].

See generally, FORECITE National™ 66.1.8 [Attempt: Federal Circuit Model Instructions And Notes].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 6 - CHAPTER 66

PRACTICE NOTE: The acts of assembling disguises and weapons and "casing" a bank are not sufficient standing alone, to support a conviction of attempted robbery of the bank. (See U.S. v. Buffington (9th Cir. 1987) 815 F2d 1292, 1301-03; see also U.S. v. Still (9th Cir. 1988) 850 F2d 607, 610 [sitting in a van approximately 200 feet from a bank with the engine running and wearing a blonde wig was not a substantial step toward commission of the bank robbery even though defendant admitted he planned to rob the bank].)

    See also FORECITE National™ 66.1.7 [ Attempt: The Substantial Step Element].

See generally, FORECITE National™ 305.1.18 [Attempts].

See generally, FORECITE National™ 66.1.8 [Attempt: Federal Circuit Model Instructions And Notes].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 6 - CHAPTER 66

PRACTICE NOTE: Possession of tools that could be used to commit an offense should not be sufficient for an attempt conviction. (See e.g., People v. Smith (IL 1992) 593 NE2d 533, 538 [no attempted robbery based on defendant’s possession of gun and pillow case]; but see U.S. v. Savaiano (10th Cir. 1988) 843 F2d 1280, 1297-98 [possession of recipe and necessary chemicals and apparatus sufficient for attempted manufacture of amphetamine]; U.S. v. Duran (DC Cir. 1996) 96 F3d 1495, 1508 [purchase of gun and ammunition and bringing same to area adjacent to White House sufficient for attempted assassination of president].)

    See also FORECITE National™ 66.1.7 [ Attempt: The Substantial Step Element].

See generally, FORECITE National™ 305.1.18 [Attempts].

See generally, FORECITE National™ 66.1.8 [Attempt: Federal Circuit Model Instructions And Notes].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 6 - CHAPTER 66

PRACTICE NOTE: A verbal agreement to purchase heroin does not alone suffice to constitute the substantial step required for a conviction of attempted possession of heroin. (See U.S. v. Delvecchio (2nd Cir. 1987) 816 F2d 859, 862.)

    See also FORECITE National™ 66.1.7 [ Attempt: The Substantial Step Element].

    See also FORECITE National™ 56.2.11 [Possession: Agreement Or Contract To Purchase Not Sufficient].

See generally, FORECITE National™ 305.1.18 [Attempts].

See generally, FORECITE National™ 66.1.8 [Attempt: Federal Circuit Model Instructions And Notes].

VOLUME 6 - CHAPTER 66

PRACTICE NOTE: "Knowledge or purpose (intent) alone with no act or conduct toward the commission of the crime does not constitute an attempt. [Citation.]" (OHIO JURY INSTRUCTIONS, VOLUME 4 - CRIMINAL, 4 OJI 523.02(4), comment [Attempt R.C. 2923.02] (Anderson, 1997); see also U.S. v. Nelson (9th Cir. 1995) 66 F3d 1036, 1042; State v. Domer (OH 1964) 204 NE2d 69, 75.)

    See also FORECITE National™ 66.1.7 [ Attempt: The Substantial Step Element].

    See FORECITE National™ 56.2.2 [Power And Intent Is Not Enough To Establish Criminal Liability].

    See also FORECITE National™ 43.2 [Criminal Intent Is Not Alone Sufficient To Convict].

See generally, FORECITE National™ 305.1.18 [Attempts].

See generally, FORECITE National™ 66.1.8 [Attempt: Federal Circuit Model Instructions And Notes].