5.3 Attempt

5.3 ATTEMPT

The defendant is charged in the indictment with attempting to commit [specify crime charged].In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant intended to [specify elements of crime charged]; and

Second, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit the crime.

Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.

Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.

Comment

This definition should follow the elements instruction for the substantive crime. 

Where this Manual provides a model instruction covering attempt to commit a specific offense, such instruction should be used instead of this generic attempt instruction. This instruction is appropriate only when a defendant is accused of attempting to commit a crime for which there is no specific model instruction.

This Manual contains model instructions for attempt to commit the following specific offenses:

Arson (Instruction 8.1);

Passing counterfeit obligations (Instruction 8.28);

Passing forged endorsement on check, bond or security of U.S. (Instruction 8.34);

Smuggling goods (Instruction 8.35);

Smuggling goods from the United States (Instruction 8.35A)

Passing false papers though customhouse (Instruction 8.36);

Escape (Instruction 8.45);

Murder (Instruction 8.111);

Kidnapping (Instructions 8.118, and 8.119);

Bank fraud (Instructions 8.126A and 8.128);

Mail theft (Instruction 8.139);

Extortion (Instructions 8.142, 8.142A, and 8.143);

Robbery (Instruction 8.143A);

Interstate or Foreign Travel in Aid of Racketeering Enterprise (Instruction 8.144);

Financial transaction to promote unlawful activity (Instruction 8.146);

Laundering monetary instruments (Instruction 8.147);

Transporting funds to promote unlawful activity (Instruction 8.148);

Transporting monetary instruments for purpose of laundering (Instruction 8.149);

Violent Crime in Aid of Racketeering Enterprise (Instruction 8.151);

Bank robbery (Instruction 8.163);

Aggravated sexual abuse (Instructions 8.165, 8.167, and 8.169);

Sexual abuse (Instructions 8.171, 8.173, 8.175 and 8.177);

Transporting for prostitution; persuading to travel for prostitution (Instructions 8.191 and

8.192);

Offenses involving aliens—illegal transportation, harboring, and illegal reentry (Instructions 9.1, 9.2, 9.3, 9.5, and 9.7);

Controlled substance offenses (Instructions 9.17, 9.20, 9.22, 9.24 and 9.26); and

Forcible rescue of seized property (Instruction 9.43).

"To attempt a federal crime is not, of itself, a federal crime. Attempt is only actionable when a specific federal criminal statute makes it impermissible to attempt to commit the crime." United States v. Anderson, 89 F.3d 1306, 1314 (6th Cir. 1996) (citations omitted). See also United States v. Hopkins, 703 F.2d 1102, 1104 (9th Cir. 1983) ("There is no general federal ‘attempt’ statute. A defendant therefore can only be found guilty of an attempt to commit a federal offense if the statute defining the offense also expressly proscribes an attempt." (citations omitted)). However, many federal statutes defining crimes also expressly proscribe attempts.

"[A]ttempt is a term that at common law requires proof that the defendant had the specific intent to commit the underlying crime and took some overt act that was a substantial step toward committing that crime." United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1192 (9th Cir. 2000) (en banc). To be a substantial step, a defendant’s "actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007).

The "strongly corroborated" language in this instruction is taken from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) ("A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent") and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).

Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir. 2010).

"[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime." United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).　

Approved 4/2019