ATTEMPT TO COMMIT A FEDERAL CRIME: S. 171, A PROPOSED GENERAL STATUTE

CRS Report for Congress
Attempt To Commit A Federal Crime: S. 171,
A Proposed General Statute
Paul S. Wallace, Jr.
Specialist in American Public Law
American Law Division
Summary
There is no general federal statute proscribing criminal attempts; the federal
criminal statutes are written in such a manner so as to include only the attempt to
commit a specific substantive crime or substantive offense. Therefore, a specific intent
crime would require that the offender specifically intended to devise a scheme to
commit the crime. The government, on the other hand, must present proof by
inferences from the circumstances that the offender possessed the specific intent to
commit the crime. This approach to the law has led to a patchwork of attempt
statutes—leaving gaps in coverage, and failing to satisfactorily define exactly what
constitutes an attempt in all circumstances. As introduced, S. 171 would address these
problems in the current law by adding a general attempt provision to title 18 of the
United States Code which would define what constitutes an attempt in all circumstances.
It is also the intent of the legislation to fill in the gaps found in the current attempt
statutes. This report will be updated if legislative activity warrants
The law surrounding criminal attempts has produced considerable commentary
relating to the vagueness of its elements; there does not appear to have been a solution¹
which “successfully addressed the complete range of attempt cases.” There is broad
acknowledgment that the elements are vague, probably because attempts to commit
crimes cover a broad range of different criminal offenses. Each criminal offense contains
different elements. Hence, the type of facts necessary to prove an attempt to commit
murder will not be the same as those required to prove an attempt to commit
embezzlement or arson. The classical elements of an attempt are intent to commit a
crime, the execution of an overt act in furtherance of the intention, and a failure to
consummate the crime.² Initially, the defendant must have been acting with the kind of

¹Misner, The New Attempt Laws: Unsuspected Threat to the Fourth Amendment, 33 Stan.
L. Rev. 201, 207 (1981).
²United States v. Stallworth, 543 F.2d 1038, 1040 (2d Cir. 1976). See also United States
(continued...)
Congressional Research Service ˜ The Library of Congress

knowing culpability otherwise required for the commission of the crime he is charged
with attempting.³ Then, the defendant must have engaged in conduct which constitutes
a substantial step toward commission of the crime, conduct strongly corroborative of the
firmness of the defendant’s criminal intent.⁴ Otherwise, when one is attempting to
commit a crime where the attempt is not an offense, the law enforcement officials must
wait until the crime is completed, or find some other charge to fit the criminal’s actions.
With regard to a general definition for the crime of attempt, two requirements must
be met: (1) intent to commit the underlying offense; and (2) a “substantial step” was taken
beyond mere preparation, toward committing the crime.⁵ The proposed legislation
appears to embrace these elements and would seemingly provide direction in defining
what constitutes an attempt in most, if not all, circumstances.⁶
Selected Statutes
In order to violate a mail fraud statute, one must (1) devise or intend to devise a
scheme to defraud, obtain money or property by false pretenses, or sell or otherwise deal
in counterfeit currency; and (2) mail, receive via mail, or cause to be delivered by mail a
document for the purpose of executing or attempting such a scheme.⁷ Hence, the statute

² (...continued)
v. Williams, 136 F.3d 547, 553 (8^th Cir. 1998); United States v. Burks, 135 F.3d 582, 583-84 (8^th^th
Cir. 1998); United States v. Price, 134 F.3d 340, 350-51 (6 Cir. 1998).
³Stallworth, 543 F.2d at 1040.
⁴Id.
⁵See United States v. Thompson, 130 F.3d 676, 688 (5^th Cir 1997); United States v.
Carothers, 121 F.3d 659, 661 (11^th Cir. 1997).
⁶It appears as if there are two types of statutes under which attempts to commit federal
crimes are determined: (1) those with free standing attempt offenses which have sentences
distinct and related to the sentence for the completed offense and (2) those which define a crime
where there is the intent to do certain proscribed acts or to bring about a certain proscribed result
and though unsuccessful, there is an act of preparation which must occur but the statute is silent
on what act must be accomplished in order to constitute the offense of attempt.
The Model Penal Code requires “an act or omission constituting a substantial step in a
course of conduct planned to culminate in [the actor’s] commission of the crime.” Model Penal
Code § 5.01(1)(c).
⁷The mail fraud statute provides: “Whoever, having devised or intending to devise any
scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent
pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away,
distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin,
obligation, security, or other article, or anything represented to be or intimated or held out to be
such counterfeit or spurious article, for the purpose of executing such scheme or artifice or
attempting to do so, places in any post office or authorized depository for mail matter, any matter
or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be
deposited any matter or thing whatever to be sent or delivered by any private or commercial
interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes
to be delivered by mail or such carrier according to the direction thereon, or at the place at which
(continued...)

has only two elements: an intent to devise a scheme to defraud and a mailing for the
purpose of executing the scheme.⁸
Mail fraud is an inchoate⁹ crime; the offender does not have to cause actual harm in
achieving a fraudulent scheme to violate the statute.¹⁰ Because it emphasizes guilt rather
than consequences, the law has, in the interest of crime prevention, prohibited inchoate
crimes and attached criminal culpability at an earlier point in time.¹¹
In contrast to attempt, which assigns culpability for a substantive offense—the
substantive offense itself requires only that the offender intended the scheme to
defraud—the offender may also be charged upon an intention to devise a scheme, which
is planning to plan or devise.¹²
The mental state required for the crime of attempt, as generally stated in the cases,
is an intent to commit some other crime.¹³ Some of the attempt statutes do not specify

⁷ (...continued)
it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall
be shall be fined under this title or imprisoned not more than five years, or both. If the violation
affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned
not more than 30 years, or both.” 18 U.S.C. § 1341 (1994).
⁸See Pereira v. United States, 347 U.S. 1 (1954).
⁹Unfinished; something begun but not finished.
¹⁰See United States v. Utz, 886 F.2d 1148, 1151 (9^th Cir. 1989) (unsuccessful scheme to
defraud remains within the purview of § 1341); United States v. Frost, 125 F.3d 346, 360 (6^th Cir.

1997).

¹¹See Robbins, Double Inchoate Crimes, 26 Harv. J. on Legis. 1, 5-13 (1989). The crime
of attempt punishes behavior when the harm intended by the offender and criminalized in a
substantive criminal statute did not occur because law enforcement agents intervened, because
the actor failed to complete the act, or because it was impossible to achieve the goal. Conspiracy
and solicitation are also inchoate in that each criminalizes an agreement to commit a subsequent,
substantive crime. Reckless endangerment statutes, enacted to punish those who put others at
risk of harm, are inchoate in that they do not require tangible harm, or even an intent to inflict
harm.
¹²See Morano, The Mail-Fraud Statute: A Procrustean Bed, 14 J. Marshall L. Rev. 45, 57
n. 36 (noting that those who plan a scheme may be punished).
¹³See United States v. Farber, 336 F.2d 586 (6^th Cir. 1964) (intent required to be proved
under 18 U.S.C. § 2421 is intent that female transported by accused in interstate commerce shall,
after such transportation, engage in charged immoral conduct and that intent may be shown by
circumstantial evidence).

the requisite mental state,¹⁴ although in modern recodifications an intent to commit some
offense is usually set forth as an element of the crime of attempt.¹⁵
However, under § 1113 of title 18, the attempt offense is free standing, i.e., it is not
based upon the elements of the murder itself, and has a sentence that is distinct and related
to the sentence for the completed offense.¹⁶
Analysis
S. 171 would make criminal the intent to commit any offense if the person engages
in conduct that, if successful, would constitute or result in the offense. In this type of
situation, the attempt would be complete if the offender has completed the conduct that
he/she expects to cause a proscribed result. It would also appear as if the offense would
be completed even if the offender had not completed the preparation for the criminal
attempt. In this instance liability would depend upon the offender having taken a
significant step in a course of conduct which was planned to culminate in the commission
of a crime.
The bill would create an affirmative defense which could be claimed if the offender
abandoned or otherwise prevented the commission of the offense, under circumstances
manifesting a complete and voluntary renunciation of his criminal purpose.

¹⁴See 18 U.S.C. § 2421 (1994 ) “Transportation generally: Whoever knowingly transports
any individual in interstate or foreign commerce, or in any Territory or Possession of the United
States, with intent that such individual engage in prostitution, or in any sexual activity for which
any person can be charged with a criminal offense, shall be fined under this title or imprisoned
no more than five years, or both.”
¹⁵See 18 U.S.C. § 1991 (1994) “Entering train to commit crime: Whoever, in any Territory
or District, or within or upon any place within the exclusive jurisdiction of the United States,
willfully and maliciously trespasses upon or enters upon any railroad train, railroad car, or
railroad locomotive, with the intent to commit murder or robbery, shall be fined under this title
or imprisoned not more than twenty years, or both.
Whoever, within such jurisdiction, willfully and maliciously trespasses upon or enters upon
any railroad train, railroad car, or railroad locomotive, with intent to commit any unlawful
violence upon or against any passenger on said train, or car, or upon or against any engineer,
conductor, fireman, brakeman, or any officer or employee connected with said locomotive, train,
or car, or upon or against any express messenger or mail agent on said train or in any car thereof,
or to commit any crime or offense against any person or property thereon, shall be fined under
this title or imprisoned not more than one year, or both.
Upon the trial of any person charged with any offense set forth in this section, it shall not
be necessary to set forth or prove the particular person against whom it was intended to commit
the offense, or that it was intended to commit such offense against any particular person.”
¹⁶18 U.S.C. § 1113 (1994). “Attempt to commit murder or manslaughter: Except as
provided in section 113 of this title, whoever, within the special maritime and territorial
jurisdiction of the United States, attempts to commit murder or manslaughter, shall, for an
attempt to commit murder be imprisoned not more than twenty years or fined under this title, or
both, and for an attempt to commit manslaughter be imprisoned not more than seven years or
fined under this title, or both.”

It will suffice to preclude the impossibility defense where causing a result is an
element and there is a belief that the result will occur without further conduct on the
offender’s part. The defense would be rejected since liability is focused upon the
circumstances as the offender believes them to be rather than as they actually exist.
A major difference between S. 171 and the current statutes is that the bill would
proscribe attempts to commit all or a broad class of crimes whereas the latter deal with
attempts to commit particular crimes. The most common of the latter class are those
statutes which provide for liability if a person attempts to commit a crime and in such
attempt does any act toward the commission of the offense, but fails in the preparation,
or is intercepted or prevented in the execution of the crime.¹⁷
The question which might be asked, however, is whether S.171 will have any effect
on existing federal attempt provisions, e.g., is it going to be a crime under the bill to
attempt to violate 18 U.S.C. § 1113 (i.e., attempted, attempted murder)?
It is also unclear as to whether the general attempt crime will be merged into the
completed offense, e.g., would every individual who is guilty of murder of a federal
employee¹⁸ be subject to an added penalty for attempted murder as well; or in the case of
a single act resulting in murder, could the individual only be convicted and punished for
either the attempted crime or the completed crime, but not both?
Critics may suggest that S. 171, as introduced, simply compounds the inconsistent
approach set out in the federal attempt law. It does not replace the existing federal
attempt statutes, and its sentencing approach seems at odds with that which Congress has
chosen in the case of the other general inchoate offense statute (sentencing for conspiracy
at the next lesser degree than the offense attempted versus the current five year
imprisonment regardless of the seriousness of the underlying felony has the potential of
being inconsistent).
Lastly, it is unclear as to whether the bill will expand the federal criminal jurisdiction
to include offenses where the incomplete element is the federal jurisdictional element
itself, e.g., kidnaping under circumstances which otherwise is not a federal crime
inasmuch as the offender has yet to transport the victim across state lines.

¹⁷See 18 U.S.C. § 2421(1994) ; 18 U.S.C. § 1991 (1994).
¹⁸See 18 U.S.C. § 1114 (1994).