Also known as: substantive felonies · substantive offense
Written by attorneys — see sources below.
A completed criminal offense that serves as the object of an inchoate crime such as conspiracy or attempt. The term distinguishes the finished felony from preparatory offenses that may merge into it upon completion.
Sean Steele and Scott Summers agreed to stage accidents and file false insurance claims. After they successfully obtained multiple payouts through the scheme, prosecutors charged both the conspiracy and the completed fraud counts. Because the agreement produced the finished offenses, the conspiracy merged and Sean could stand convicted only of the substantive felonies themselves.
Solomon Silver drove to the bank, parked across the street, and watched the tellers for thirty minutes while carrying a demand note. Police arrested him before he entered or presented the note. His conduct never reached the substantive felony of robbery, so he faced no conviction for the completed offense.
Seth Shapiro prepared and submitted a forged medical bill using what he believed was an active policy number. The policy had been canceled, yet the submission itself would have produced the substantive felony of insurance fraud if the facts had matched his belief. Factual impossibility supplied no defense to attempt liability.
Samantha Stone filed a claim she believed would be paid under a nonexistent policy. Even if every step she took had succeeded exactly as planned, no insurance fraud would have occurred because the policy never existed. Legal impossibility therefore prevented conviction for the substantive felony or its attempt.
Stephen Shaw and his partner agreed to commit tax fraud. Each later filed false returns that produced the substantive felonies. Under Pinkerton principles, Stephen could be convicted of those completed offenses even though he personally performed only some of the overt acts.
Walter and Daniel Pinkerton are brothers who lived a short distance from each other on Daniel's farm. They were indicted for violations of the Internal Revenue Code. The indictment contained ten substantive counts and one conspiracy count. The jury found Walter guilty on nine of the substantive counts and on the conspiracy count. It found Daniel guilty on six of the substantive counts and on the conspiracy count. Walter was fined $500 and sentenced generally on the substantive counts to imprisonment for thirty months. On the conspiracy count he was given a two year sentence to run concurrently with the other sentence. Daniel was fined $1,000 and sentenced generally on the substantive counts to imprisonment for thirty months. On the conspiracy count he was fined $500 and given a two year sentence to run concurrently with the other sentence. The judgments of conviction were affirmed by the Circuit Court of Appeals. The Supreme Court granted certiorari because one of the questions presented involved a conflict between the decision below and United States v. Sall, decided by the Circuit Court of Appeals for the Third Circuit. A single conspiracy was charged and proved. Some of the overt acts charged in the conspiracy count were the same acts charged in the substantive counts. Each of the substantive offenses found was committed pursuant to the conspiracy. There is no evidence to show that Daniel participated directly in the commission of the substantive offenses on which his conviction has been sustained. There was evidence to show that these substantive offenses were in fact committed by Walter in furtherance of the unlawful agreement or conspiracy existing between the brothers. Daniel in fact was in the penitentiary, under sentence for other crimes, when some of Walter’s crimes were done. The indictment was filed after a prior one for conspiracy alone had been dismissed following reversal on appeal.
View caseScott Summers was convicted of the completed offense of assault after his co-conspirator carried out the planned attack. The judge later found additional facts that increased the sentence beyond the statutory maximum. Those facts had to be proved to a jury because they effectively created exposure to the substantive felony itself.
In 1998, Ralph Howard Blakely abducted his estranged wife Yolanda from their orchard home in Grant County, Washington. He bound her with duct tape and forced her at knifepoint into a wooden box in the bed of his pickup truck while imploring her to dismiss divorce and trust proceedings. When their 13-year-old son Ralphy returned from school, Blakely ordered him to follow in another car under threat of harming Yolanda with a shotgun. Ralphy escaped at a gas station and sought help, but Blakely continued with Yolanda to a friend's house in Montana before his arrest. The State initially charged Blakely with first-degree kidnapping but reached a plea agreement that reduced the charge to second-degree kidnapping involving domestic violence and use of a firearm. Blakely entered a guilty plea admitting the elements of the reduced charge along with the domestic-violence and firearm allegations, but no other relevant facts. Washington law classified the offense as a class B felony carrying a statutory maximum of ten years, yet specified a standard sentencing range of 49 to 53 months for this offender score and offense level. At sentencing the State recommended a term within the standard range. After hearing Yolanda's account of the incident, the judge rejected the recommendation and conducted a three-day bench hearing that included testimony from Blakely, Yolanda, Ralphy, a police officer, and medical experts. The judge issued 32 findings of fact detailing the defendant's motivation, methods, and violation of a restraining order, then concluded that Blakely had acted with deliberate cruelty, a statutorily enumerated aggravating factor. The judge imposed an exceptional sentence of 90 months, 37 months above the standard maximum. Blakely appealed, contending that the sentencing procedure deprived him of the right to jury determination of facts essential to his sentence. The Washington Court of Appeals affirmed, relying on the state supreme court's earlier rejection of a similar challenge, and the Washington Supreme Court denied discretionary review. The United States Supreme Court granted certiorari to examine the sentencing procedure under the Sixth Amendment.
View caseMerger occurs under the traditional common law rule once the conspirators complete the offense that was the object of their agreement. The participants may then be convicted of the completed crime but not of both the conspiracy and the same substantive felony.
Supporting sources
No. At common law a defendant may not invoke factual impossibility as a defense. The rule denies the defense whenever the defendant could not complete the offense because of an unknown physical or factual condition, provided the conduct would have constituted the crime if the facts had been as the defendant believed.
Supporting sources
Legal impossibility is a complete defense. It exists when the defendant's intended acts, even if fully carried out under the circumstances the defendant believed existed, would not constitute a crime. Factual impossibility, by contrast, supplies no defense.
Supporting sources
The traditional common law proximity test requires that the defendant's acts come dangerously close to completing the offense. Mere travel to the area or other preparatory steps that leave substantial acts undone fall short of attempt liability for the substantive felony.
Supporting sources
…of guilt, the court determined, and did not appear " tailored to permit the . . . finding to be a tail which wags the dog of the substantive offense.' " 304 N. J. Super., at 154, 698 A. 2d, at 1269 (quoting McMillan , 477 U. S., at 88). Characterizing the required finding as one of "motive," the court described it as a traditional…