Where does planning a crime become a crime, generally speaking?

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  • Libertarian01

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    I was chatting with a friend today about some of the news regarding the Mueller investigation. As far as I can see (so far) much of it alleges the planning of crimes but nothing happened.

    My buddy says planning a crime is a crime and I call BS. He wanted to talk about plotting to assassinate the president and what could be done. I won't go there, not for fear of the discussion, but that I know there are special/additional federal laws regarding the president, probably senators and so on. My thought is on planning a "normal" crime, like robbery or murder.

    So if a group of folks gets together and fantasizes about robbing a bank or whacking an ex spouse, I believe it could be planned and acted upon - to a point, without it being a crime. At some point some "overt act" would have to be done that would cross the line from fanciful think to actually criminality, but what is that overt act?

    So say to rob the bank this happens:

    #1) there is a discussion of the plot.
    #2) the bank is scouted out (pictures of outside, someone goes in to see cameras, etc).
    #3) guns are bought.
    #4) pictures of the bank are taken.
    #5) a get away route is drawn up.
    #6) masks are bought.
    #7) duct tape is bought to tie up people if needed.
    #8) an abandoned building is used to "practice" the robbery.
    #9) the plans are shelved as the group claims victory of robbing the bank in the abandoned building.

    At which point, if any, could realistic charges be filed and probably won? Also, say the plans lay dormant in one of the "conspirators" home for three (3) years and the police find them while executing a warrant for another alleged crime. How long ago would it have to be dropped before it would be thrown out?

    I know these are broad brush questions, but I don't think any charges could be filed as none of the above acts has crossed a Rubicon of no going back. So far in this scenario it is just fantasy. However, I do know that at some point some overt act could cross the line into criminality. This is what I am trying to get a clearer picture of.

    Or am I entirely wrong and the fantasizing and planning of a crime is itself a conspiracy? My problem with the thought that I am wrong is that I would see it as a violation of freedom of speech and thought policing.

    Regards,

    Doug
     

    Frank_N_Stein

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    In Indiana:

    Indiana Code Title 35. Criminal Law and Procedure § 35-41-5-2



    Sec. 2 . (a) A person conspires to commit a felony when, with intent to commit the felony, the person agrees with another person to commit the felony.  A conspiracy to commit a felony is a felony of the same level as the underlying felony.  However, a conspiracy to commit murder is:
    (1) a Level 2 felony if the conspiracy does not result in the death of a person;  and

    (2) a Level 1 felony if the conspiracy results in the death of another person.


    (b) The state must allege and prove that either the person or the person with whom he or she agreed performed an overt act in furtherance of the agreement.

    (c) It is no defense that the person with whom the accused person is alleged to have conspired:
    (1) has not been prosecuted;

    (2) has not been convicted;

    (3) has been acquitted;

    (4) has been convicted of a different crime;

    (5) cannot be prosecuted for any reason;  or


    (6) lacked the capacity to commit the crime.Sec. 2 . (a) A person conspires to commit a felony when, with intent to commit the felony, the person agrees with another person to commit the felony.  A conspiracy to commit a felony is a felony of the same level as the underlying felony.  However, a conspiracy to commit murder is:
    (1) a Level 2 felony if the conspiracy does not result in the death of a person;  and

    (2) a Level 1 felony if the conspiracy results in the death of another person.


    (b) The state must allege and prove that either the person or the person with whom he or she agreed performed an overt act in furtherance of the agreement.

    (c) It is no defense that the person with whom the accused person is alleged to have conspired:
    (1) has not been prosecuted;

    (2) has not been convicted;

    (3) has been acquitted;

    (4) has been convicted of a different crime;

    (5) cannot be prosecuted for any reason;  or

    (6) lacked the capacity to commit the crime.



    Sec. 2 . (a) A person conspires to commit a felony when, with intent to commit the felony, the person agrees with another person to commit the felony.  A conspiracy to commit a felony is a felony of the same level as the underlying felony.  However, a conspiracy to commit murder is:
    (1) a Level 2 felony if the conspiracy does not result in the death of a person;  and

    (2) a Level 1 felony if the conspiracy results in the death of another person.


    (b) The state must allege and prove that either the person or the person with whom he or she agreed performed an overt act in furtherance of the agreement.

    (c) It is no defense that the person with whom the accused person is alleged to have conspired:
    (1) has not been prosecuted;

    (2) has not been convicted;

    (3) has been acquitted;

    (4) has been convicted of a different crime;

    (5) cannot be prosecuted for any reason;  or

    (6) lacked the capacity to commit the crime.


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    I'm not a lawyer, but I would say the planning, purchases, and dry run would constitute the overt act(s).
     

    DoggyDaddy

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    I was thinking along the lines of what Frank posted. I know people have been arrested (and convicted) in "murder for hire" plots when the accused was "conspiring" with an undercover officer and it never went further than that.
     

    hoosierdoc

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    Well plenty of leftist folks tried to get into trump’s organization for the sole purpose of talking to Russians to get all of this started. Most were not brought on, but some were.

    is it a crime to leak to get a special prosecutor named who was not charged to investigate a crime, rather a person? THAT violates statute.
     
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    Well plenty of leftist folks tried to get into trump’s organization for the sole purpose of talking to Russians to get all of this started. Most were not brought on, but some were.

    is it a crime to leak to get a special prosecutor named who was not charged to investigate a crime, rather a person? THAT violates statute.

    Not a crime if it's a leftist doing it.
     

    Kirk Freeman

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    The further down your list, the stronger the state case.

    The controlling language you are seeking is "overt act in furtherance of the conspiracy."

    In your fact pattern, #2 will do.
     

    KellyinAvon

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    Just to review: the State must prove the intent to commit a felony.

    A group of individuals (lets say, 5) meet weekly and discuss how to successfully rob a bank. None of the individuals intend to rob a bank, it's a discussion. They start by reviewing history clear back to the James Gang (Frank and Jesse, not Joe Walsh :laugh: ). What worked? What didn't work?

    Which bank? Ski-masks and shotguns or tunneling into the vault? Cost-benefit analysis?

    What prevents a conspiracy to commit a felony from being a felony? Intent. If real bank robbery planners put the phrase "Draft-discussion only. Not intended for actual bank robbery" on all their planning documents would this count as no intent?

    What if one of the five is actually a confidential informant for the FBI? What if the group meets with someone from Bedford who spent 30 years making huge limestone rocks into more manageable sized limestone rocks with explosives?

    A lot of scenarios can take place here.
     

    Libertarian01

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    Well...

    Crap.

    It looks as though I was wrong.:( The bar seems to be pretty low to get someone for planning to commit a crime even though they may never intend to follow through on it.

    With this being the case perhaps it will be easier for Mueller to place some sort of charge(s) against Trump and/or associates beyond what has already happened.

    I still don't like it but that doesn't mean much in the real world.

    Thanks,

    Doug
     

    Hkindiana

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    I actually know someone who was charged with "Conspiring to Conspire". The prosecutor claimed that he THOUGHT about talking to someone about commiting a crime. The judge laughed the "thought police" out of court.
     

    hoosierdoc

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    He can’t charge trump for things he did before he took office. They know that. This is purely opposition research for the impeachment proceedings or re-election, or trying to force him to resign

    but... it’s all fruit of a poisoned tree since mueller’s been appointed in violation of statute
     

    Hawkeye

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    I think you can’t be indicted for conspiracy if you stayed in a Holiday Inn Express the night before. Or maybe if you did...? Or is it prima fasciae proof if the conspirators met in a Holiday Inn Express?


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    Libertarian01

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    Just to review: the State must prove the intent to commit a felony.

    A group of individuals (lets say, 5) meet weekly and discuss how to successfully rob a bank. None of the individuals intend to rob a bank, it's a discussion. They start by reviewing history clear back to the James Gang (Frank and Jesse, not Joe Walsh :laugh: ). What worked? What didn't work?

    Which bank? Ski-masks and shotguns or tunneling into the vault? Cost-benefit analysis?

    What prevents a conspiracy to commit a felony from being a felony? Intent. If real bank robbery planners put the phrase "Draft-discussion only. Not intended for actual bank robbery" on all their planning documents would this count as no intent?

    What if one of the five is actually a confidential informant for the FBI? What if the group meets with someone from Bedford who spent 30 years making huge limestone rocks into more manageable sized limestone rocks with explosives?

    A lot of scenarios can take place here.


    If I am reading this correctly for there to be any crime there must be, in legal parlance, mens rea, correct?

    But what if I don't know it is a crime? Say I'm Donald Trump, and the little strumpet I spent a night with could hurt my campaign if she goes blabbing. So, like many times before, I call my fixer Cohen to pay her off and make her shut up and go away. This has been done by MANY wealthy people MANY times before without any laws being violated.

    What if Cohen simply says, "OK boss. You got it" and he goes and pays Stormy Daniels some money. Trump knows real estate. He doesn't know federal election rules. (Most lawyers don't know election laws if they don't work with it all the time.) He doesn't do his own paperwork. Would it be an easy defense for him to claim, "Hey! Nobody told me I had to report this. This is why I hire professionals who know this stuff. Don't blame me, I would have had it reported if someone said I had to."

    Is this then an easy defense for Trump?

    Thanks,

    Doug
     

    Fargo

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    If I am reading this correctly for there to be any crime there must be, in legal parlance, mens rea, correct?

    But what if I don't know it is a crime? Say I'm Donald Trump, and the little strumpet I spent a night with could hurt my campaign if she goes blabbing. So, like many times before, I call my fixer Cohen to pay her off and make her shut up and go away. This has been done by MANY wealthy people MANY times before without any laws being violated.

    What if Cohen simply says, "OK boss. You got it" and he goes and pays Stormy Daniels some money. Trump knows real estate. He doesn't know federal election rules. (Most lawyers don't know election laws if they don't work with it all the time.) He doesn't do his own paperwork. Would it be an easy defense for him to claim, "Hey! Nobody told me I had to report this. This is why I hire professionals who know this stuff. Don't blame me, I would have had it reported if someone said I had to."

    Is this then an easy defense for Trump?

    Thanks,

    Doug
    Strictly speaking, the mens rea requirement really only applies to intent to do the illegal act, not to intent to do the act knowing it is illegal. (Unless you are HRC.)

    Trump could have a similar defense if he was not the one controlling the money or making the reporting decisions, but that would be because someone else was making the illegal decision.

    Either way, it is a potential campaign finance reporting violation, something I would wager almost every major campaign has violated in one way or another, whether intentionally or not. Last major prosecution that I recall was John Edwards and I believe he was acquitted.
     

    T.Lex

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    Now you're getting into an "advice of counsel" type defense, which exists for some kinds of allegations.

    In this specific case that has become the hypothetical, dude's running for POTUS, with an entire election headquarters staffed with people who DO know the risk he runs by paying off someone with information detrimental to the campaign. Also, we don't yet know if those people DID warn Trump about the risks.

    Even if they didn't, it starts to look like wilful ignorance. He wanted to do what he wanted to do and he didn't want to know if it could be a violation.
     

    Libertarian01

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    Strictly speaking, the mens rea requirement really only applies to intent to do the illegal act, not to intent to do the act knowing it is illegal. (Unless you are HRC.)

    Trump could have a similar defense if he was not the one controlling the money or making the reporting decisions, but that would be because someone else was making the illegal decision.

    Either way, it is a potential campaign finance reporting violation, something I would wager almost every major campaign has violated in one way or another, whether intentionally or not. Last major prosecution that I recall was John Edwards and I believe he was acquitted.

    Now you're getting into an "advice of counsel" type defense, which exists for some kinds of allegations.

    In this specific case that has become the hypothetical, dude's running for POTUS, with an entire election headquarters staffed with people who DO know the risk he runs by paying off someone with information detrimental to the campaign. Also, we don't yet know if those people DID warn Trump about the risks.

    Even if they didn't, it starts to look like wilful ignorance. He wanted to do what he wanted to do and he didn't want to know if it could be a violation.


    Some of the campaign finance laws are simple to understand. When I ran for city council I learned all that I could as I was also doing the reporting. It was my understanding that any money I spent from anywhere that was to go to the campaign must be reported. I hadn't worn a suit in years and didn't have a good pair of dress shoes. So to look good giving speeches I bought a new pair of dress shoes. I don't recall if it was my own money or campaign money but I reported my purchase of clothing for the campaign.

    I also broke the rules. I was three (3) days late filing a report long after the campaign was over. I could have faced a $50 fine per day of lateness. The Allen County Election Board gave me a pass and I didn't have to pay anything, but I did have to plea for leniency. Soon after that the campaign and accounts were closed so I didn't have to do that again.

    I believe my first issue is what Trump is facing now. He spent money on the campaign avoiding a land mine and didn't report it. This would normally be a fine or slap on the wrist and move on. But this is Trump...

    Thanks,

    Doug
     

    Hawkeye

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    Are you talking about the real lawyers or the street corner lawyers who will post "IANAL" then offer their opinion? :)

    We’ve got both. Some of each have commented up thread.


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