Also known as: substantive felonies · substantive offense
Written by attorneys · grounded in primary & secondary sources — see 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.
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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.
Scott 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.
Merger 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.
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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.
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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.
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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.
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…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…