Actus Reus: Solicitation

Case: People v. Lubow [pp. 689-691]

Facts: Δ owed Silverman $30k for diamonds purchased on credit. When Silverman went to the Δ, and
demanded his money, because he was being forced into bankruptcy, Δ responded by inviting Silverman to
participate in a scheme to defraud creditors. They would basically buy diamonds on credit, then declare
bankruptcy. Silverman told the police, and he had a tape recorder put on him to record later conversations
eluding to the same crime.

Holding: Court holds that there was sufficient evidence in the record to find the Δ intended Silverman to engage
in conduct constituting a felony by defrauding creditors.
o Solicitation is that with the intent that another person shall engage in conduct constituting a crime, the
accused solicits, requests, commands, importunes, or otherwise attempts to cause such other person to
engage in such conduct. Solicitation in of itself is a crime - the communication is the crime, and there
needn't be any corroboration.
o MPC says, "Purposeful solicitation presents dangers calling for preventive intervention and is
sufficiently indicative of a disposition towards criminal activity to call for liability. Moreover, the
fortuity that the person solicited dos not agree to commit or attempt to commit the incited crime
plainly should not relieve the solicitor of liability."
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Notes [pp. 691-694]

• MPC § 5.02. Criminal Solicitation

o (1) Definition of solicitation. A person is guilty of solicitation to commit a crime if with the
purpose of promoting or facilitating its commission he commands, encourages, or requests
another person to engage in specific conduct that would constitute such crime or an attempt to
commit such crime or that would establish his complicity in its commission or attempted
commission.
o (2) Uncommunicated solicitation. It is immaterial under Subsection (1) of this Section that the
actor fails to communicate with the person he solicits to commit a crime if his conduct was
designed to effect such communication.
o (3) Renunciation of criminal purpose. It is an affirmative defense that the actor, after soliciting
another person to commit a crime, persuaded him not to do so or otherwise prevented the
commission of the crime under circumstances manifesting a renunciation of his criminal
purpose.
• Solicitation vs. Attempt
o For grading - MPC treats solicitation same as attempt.
• MPC § 5.05 (3) - says a Δ can be punished for either solicitation or attempt, but not both.
o Some states impose a lesser punishment for solicitation that for attempt, so the relationship
between them becomes important.
• People v. Superior Court (2007) - Δ wanted to kill his sister & her friend, but out of fear
that he would be the prime suspect and would make a mistake, he sought to hire an
assassin. He gave the assassin a lot of detailed information about his sister, and agreed on
a price. The assassin was actually a police detective, and before Δ gave him the money,
the detective asked Δ if he was sure, and Δ said he was very sure. Δ argues that he's only
guilty of solicitation of murder, not attempt.
• Court said that although Δ did not aim the gun, he aimed a professional who
agreed to commit the murder (in some ways, may be worse, because professional
will def do it, while Δ may not be able to).
 • Solicitation requires only that a person invite another to commit or join in
an enumerated crime with the intent that the crime be committed.
Solicitation is complete once request is made, and is punishable
irrespective of the response of the person solicited.
• Here, court said solicitation was complete early on, when Δ first
asked assassin to kill.
• The court asks whether a solicitation to commit murder, combined with a
completed agreement to hire a professional killer and the making of a down
payment under that agreement, can establish probable cause to believe Δ
attempted to murder the victims. Court says the mere fact of the down payment
doesn’t make it more likely of the consummation (although prosecution points out
that it evidences the solicitor's seriousness of purpose).
• People v. Davis (1928) - Δ wants to kill his lover's husband and hires a guy to arrange for
someone to do it, but he instead goes to the police. Court said not attempted murder
because no last step toward killing. Court says Δ was only a coward, had no criminal
record - they can't put in jail every person that has a criminal impulse.
• Uncommunicated Solicitation
o People v. Saephanh (2001) - Δ was in jail, and sent a letter to a friend asking him to attack victim
who was pregnant with Δ's child, in order to end the pregnancy. An officer intercepted the letter
instead, and it was never delivered. Court held tat such uncommunicated solicitations do not
constitute the crime of soliciting another. But the court held that it was attempted solicitation.
• Solicitation and Free Speech
o Brandenburg v. Ohio (1969) - speech calling for violation of law may be punished only when it
is directed to inciting or producing imminent lawless action and is likely to incite or produce
such action.
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Class Notes

• MPC § 5.02 (1)

• Attempt using substantial step test - if you solicit - so if guilty of solicitation, then may also be guilty of
attempt (but see People v. Superior Court, pg 692).