Federal Attempt Defense Lawyers
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Dr. Nick Oberheiden
Under federal law, attempting to commit a crime can carry the same penalties as committing the crime that is the subject of the attempt. If you are facing a federal attempt charge, you need to execute a strategic defense with the help of highly-experienced federal defense counsel.
When facing criminal allegations, claiming that you “didn’t go through with it” might seem like a sound defense strategy. But, under federal law, this is decidedly not the case. Attempt charges can carry the same penalties as completed criminal acts, and this means that you could be facing years or decades of prison time even if you did not fully commit a substantive crime.
What Constitutes a Criminal “Attempt”?
In federal jurisprudence, there are two primary aspects (or “elements”) to the crime of attempt. Prosecutors at the U.S. Department of Justice (DOJ) must prove both of these elements in order to secure a conviction:
- Intent to commit the underlying substantive offense, and
- A “substantial step” toward the commission of the underlying offense.
Federal Defense Team Lead
Intent is subjective, and challenging the DOJ’s evidence of intent is an effective defense strategy in many cases. In order for an act to constitute a “substantial step,” prosecutors must be able to show that the act was both (i) indicative of intent, and (ii) capable of resulting in the commission of the underlying offense had it not been interrupted. In many cases, it will also be possible to defend against a federal attempt charge by demonstrating that the alleged act constituting the “substantial step” was insufficient on its own to result in the commission of the underlying substantive criminal offense.
There are multiple attempt statutes in the U.S. Code. Additionally, some substantive criminal statutes include provisions that allow for the prosecution of attempted crimes. Some of examples of these statutes include:
1. 18 U.S.C. Section 1113 (Attempt to Commit Murder or Manslaughter)
Section 1113 of Title 18 of the U.S. Code defines the crime of attempt to commit murder or manslaughter. Under 18 U.S.C. Section 1113, “whoever . . . 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.”
2. 18 U.S.C. Section 1349 (Attempt to Commit Fraud)
18 U.S.C. Section 1349 is the federal attempt statute that applies to all fraud crimes defined in Chapter 63 of the U.S. Code. This includes mail fraud, wire fraud, bank fraud, health care fraud, securities fraud, and commodities fraud. Crucially, 18 U.S.C. Section 1349 imposes the same penalties for attempt as the other statutes in Chapter 63 impose for the “successful” perpetration of federal fraud crimes:
3. 21 U.S.C. Section 846 (Attempt to Commit a Drug Crime)
21 U.S.C. Section 846 is similar to 18 U.S.C. Section 1349, but it applies to attempted drug crimes. This includes drug crimes involving illicit controlled substances (i.e. marijuana, heroin, cocaine, and methamphetamine) as well as drug crimes involving prescription medications. Under 21 U.S.C. Section 846:
4. 26 U.S.C. Section 7201 (Attempt to Evade or Defeat Tax)
The federal tax evasion statute, 26 U.S.C. Section 7201, is somewhat unique in that it does not address tax evasion specifically, but rather focuses only on the attempt “to evade or defeat” a federal tax obligation. Under this statute, “[a]ny person who willfully attempts in any manner to evade or defeat any tax . . . shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 ($500,000 in the case of a corporation), or imprisoned not more than 5 years, or both . . . .”
5. 18 U.S.C. Section 201 (Bribery of Public Officials and Witnesses)
Subsection (b) of 18 U.S.C. Section 201 is not explicitly an attempt statute, but it effectively criminalizes attempts to pay or receive unlawful bribes. This is because it allows for prosecution not only of an individual who “gives” or “accepts” an unlawful bribe, but also of anyone who “offers,” “promises,” “demands,” or “seeks” a prohibited gift or payment.
Again, these are just examples. There are a multitude of other federal statutes that criminalize the attempted commission of other types of crimes. Some of these statutes impose the same penalties that apply to the attempted offenses (similar to 18 U.S.C. Section 1349 and 21 U.S.C. Section 846), while others impose attempt-specific penalties.
How We Defend Individuals Accused of Federal Attempt Crimes
Despite the limited requirements for proving attempt in federal criminal cases, there are a number of defenses available. At Oberheiden P.C., we have extensive experience defending clients against federal attempt allegations; and, as former federal prosecutors and investigative agents, many of our attorneys and defense consultants are intimately familiar with the factors that the DOJ considers in deciding whether to pursue charges. Some examples of potential defenses to federal attempt allegations include:
- Lack of Intent – Since the first element of attempt is intent to commit the underlying crime, lack of intent is a complete defense to criminal culpability. Federal prosecutors must prove the defendant’s subjective intent beyond a reasonable doubt, and their inability to do so warrants a “not guilty” verdict in all circumstances.
- Impossibility – If the alleged “substantial step” could not have resulted in the commission of a substantive offense, then the doctrine of impossibility may also provide a complete defense to criminal culpability. Under the impossibility doctrine, a person cannot be found guilty of attempt if either (i) “‘the actions which the defendant performs or sets in motion, even if fully carried out as he desires, would not constitute a crime,‘” or (ii) “‘the objective of the defendant is proscribed by criminal law but a circumstance unknown to the actor prevents him from bringing about that objective.‘”
- Abandonment – The defense of abandonment applies in cases in which the defendant withdrew from an attempt to commit a substantive offense prior to a “substantial step” being taken. As a result, when asserting an abandonment defense, a key question is whether any of the actions undertaken by the defendant amounted to a “substantial step” as defined by federal law.
- Entrapment – Entrapment can be a defense in circumstances in which the defendant acts on the advice or at the behest of a federal agent. An entrapment defense can arise if either (i) the defendant reasonably relies on a federal agent’s representation that the attempted act was legal, or (ii) the defendant was induced to attempt the crime by federal agents and lacked the predisposition to engage in criminal conduct.
- Constitutional Violations – Regardless of the facts at hand, if federal agents conducted an unlawful search or seizure, or if federal agents or prosecutors otherwise violate your constitutional rights, then the government’s evidence against you may be inadmissible in court. Without admissible evidence of guilt, the DOJ cannot prove your guilt beyond a reasonable doubt.
What to Do if You are Under Investigation for Attempt
If you are facing allegations of attempting to commit a federal crime, you need to engage experienced federal defense counsel. You are facing a precarious situation, and you need to take control of your situation in order to reduce your risk of facing a conviction. At Oberheiden P.C., our former federal prosecutors and federal agents can use their experience to defend you; and, if you engage our firm during your investigation, we may be able to prevent charges from being filed.
However, regardless of whether you are currently being investigated, you have received a grand jury subpoena, or you are awaiting trial on an attempt charge, the key to mitigating your risk is to hire a federal criminal defense law firm as soon as possible. We are available 24/7, and we have local counsel in cities across the country who can take action to defend you immediately. Do not wait any longer than necessary to seek legal representation, and do not let other mistakes jeopardize your defense. Contact us now for an initial case assessment and put our federal experience on your side.
Request a Free Initial Case Assessment at Oberheiden P.C.
Do you need to fight a federal attempt charge? If so, join the thousands of individuals and companies that have trusted Oberheiden P.C. to protect them in high-stakes federal matters. To discuss your case with one of our senior attorneys in confidence, call 888-680-1745 or request an initial case assessment online now.