Attempts, Solicitation, Aiding and abetting, Conspiracy
What are inchoate crimes in Minnesota? Attempts, Solicitation, Aiding and abetting, Conspiracy are inchoate crimes, or can be.
An inchoate crime is an incipient crime which generally leads to another crime. And incipient means beginning to exist or appear, or at an initial stage. So, in retrospect we can say that on June 28, 1914; when a young Serbian killed Archduke Franz Ferdinand, in the city of Sarajevo, this sparked World War I.
Hindsight bias: In retrospect, we often perceive a chain of events. But we may not be able to foresee them, contemporaneously.
The American Law Institute’s influential Model Penal Code classifies attempts, solicitation, aiding and abetting, and conspiracy as inchoate crimes. PART I, ARTICLE 5 Inchoate Crimes. American Law Institute, 1985. Model Penal Code : as Adopted at the 1962 Annual Meeting. And it influenced Minnesota legislation.
Minnesota Inchoate Crime Statutes
Attempts to commit a crime
Minnesota’s general inchoate crimes statute for attempt is Minnesota Statutes §609.17, subdivision 1. Itsays:
“Whoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime is guilty of an attempt to commit that crime.”Minnesota Statutes §609.17, subdivision 1
So “a substantial step toward” committing an uncompleted crime, is itself a crime. But this law requires evidence of criminal intent, or mens rea. The law requires evidence of “intent to commit a crime.” in taking the “substantial step.”
We may easily perceive a chain of events in the past. But we may not be able to know the future in real time. And since evidence of “intent” is often circumstantial, we all have a problem.
Attempt Crime Sentencing: The Minnesota Statutes §609.17, subd. 4 limits the maximum sentence for an attempt crime to half the maximum for the underlying offense. (But not if punishable by life imprisonment). And similarly, the Minnesota Sentencing Guidelines, 2G, call for one-half the presumptive sentence of many, though not all, underlying offenses.
Solicitation to commit a crime
Minnesota does not have a general Solicitation Crime statute. But rather, Minnesota has several inchoate crimes Solicitation statutes specific to situations. And these include Minnesota Statutes Sections:
- Section 609.321, Prostitution And Sex Trafficking; Definitions
- Section 609.322, Solicitation, Inducement, And Promotion Of Prostitution; Sex Trafficking
- Section 609.325, Defenses to Prostitution Charges
- Section 609.352, Solicitation Of Children To Engage In Sexual Conduct; Communication Of Sexually Explicit Materials to Children
- Section 609.493, Solicitation Of Mentally Impaired Persons
- Section 609.494, Solicitation Of Juveniles
As you can see, these criminal statutes relate to prostitution and child sex abuse crimes; and to soliciting mentally impaired or juveniles to commit a criminal act. And some of them define “Solicit” to mean “commanding, entreating, or attempting to persuade a specific person.”
Aiding and abetting
Aiding and abetting is another of Minnesota’s inchoate crimes. Minnesota’s general Aiding and abetting Crime is in Minnesota Statutes §609.05, Liability For Crimes Of Another:
“Subdivision 1. Aiding, abetting; liability. A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.
Subd. 2. Expansive liability. A person liable under subdivision 1 is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by the person as a probable consequence of committing or attempting to commit the crime intended. …”Minnesota Statutes §609.05 (2019)
So, the prosecutor needs evidence of intent, to commit an underlying crime.
Some other Minnesota Statutes relating to aiding and abetting inchoate crimes include:
- Section 169A.78, Aiding And Abetting Driving While Impaired
- Section 609.06, subd. 1 (3), Authorized Use Of Force, “when used by any person in resisting or aiding another to resist an offense against the person.”
- Section 609.215, Aiding Suicide.
- Section 609.495, Aiding An Offender After the Fact. “Whoever … aids, or assists … another whom the actor … has reason to know has committed a crime … with intent that such offender shall avoid or escape from arrest, trial, conviction, or punishment …”
Conspiracy to commit a crime
The general Conspiracy to Commit a Crime statute in Minnesota is Minnesota Statutes §609.175, including:
“Subd. 2. To commit crime. Whoever conspires with another to commit a crime and in furtherance of the conspiracy one or more of the parties does some overt act in furtherance of such conspiracy may be sentenced as follows:
(1) if the crime intended is a misdemeanor, by a sentence to imprisonment for not more than 90 days or to payment of a fine of not more than $300, or both; or
(2) if the crime intended is murder in the first degree or treason, to imprisonment for not more than 20 years; or
(3) if the crime intended is any other felony or a gross misdemeanor, to imprisonment or to payment of a fine of not more than one-half the imprisonment or fine provided for that felony or gross misdemeanor or both.”Minnesota Statutes §609.175 (2019)
And the Minnesota Supreme Court says “the crime of conspiracy requires (1) an agreement between two or more people to commit a crime, and (2) an overt act in furtherance of the conspiracy.” State v. Kuhnau, 622 NW 2d 552 (Minn. 2001).
Some other Minnesota criminal statutes that relate to conspiracy crimes include:
- Section 152.096, Drug Crime Conspiracies
- Section 609.902, Racketeering Definitions. RICO
Defenses to a criminal conspiracy charge may include:
- Evidence of an agreement is lacking
- An agreement to do a legal act is not a crime
- An agreement to do an act with one person; is not automatically agreement to do criminal acts with other unknown persons
- The defendant did not commit an overt act towards completion of any plan
- If the defendant did agree to a criminal conspiracy, he later withdrew from the plan
Defending Against Charges of Inchoate Crimes
As you can see, the various Minnesota inchoate crimes overlap. They all involve an underlying offense that may never have happened. And this raises the specter of abuse of these “pre-crime” laws.
Another common issue is criminal intent. What is planning to intend to someday commit a criminal act? Is that a crime? No. But how do you prove which side of that chained and blurry line you are on? And should we be criminalizing that?
To some extent, the laws tacitly acknowledge this problem by providing half the punishment for some inchoate crimes; relative to their underlying offense. So, for example, if a presumptive sentence for an Ag Robbery was 48 months; then Attempt Ag Robbery would be a presumptive 24 months in prison.
Six degrees of separation: Another common problem we see in federal court conspiracy charges is the small conspiracy vs. the government’s big conspiracy theory. The evidence may show the defendant had a plan with someone to do one small thing. But the government claims the defendant responsible for the acts of persons unknown to defendant; but know to the someone defendant did know.
Improper Witness Coercion: And some prosecutors abuse their power to coerce witnesses with threats of criminal prosecution. When they do, they often threaten to charge one of these inchoate crimes.
Inchoate Crimes Defense Attorney Thomas Gallagher
Over Attorney Thomas C. Gallagher‘s three decades of criminal defense practice, he helped many facing inchoate crimes charges.
And we see situation patterns in these types of cases that repeat. So having defense counsel with long experience can make a big difference for you.
Do you have a question about Minnesota inchoate crimes, like Attempt, Solicitation, Aiding and abetting, or Conspiracy charges? Then give Attorney Thomas Gallagher a call at 612 333-1500.