Kingpin Liability: An Analysis of Felony Murder under Agency Theory

Andrew Daniel McGraw

ACKNOWLEDGEMENTS

I would like to thank the faculty at Santa Clara University School of Law. Thank you to Melissa Higgins for bringing the Elkhart Truth article to my attention. Also, thank you to the staff at the Central Library of

Rochester and at the law library of the Supreme Court of the State of New York, Appellate Division, Fourth Department.

Kingpin TheoryAndrew D. McGraw*

ABSTRACT

The author proposes new methods of analyzing felony murder and group criminal activity. The mens rea

developed by a principal and the accomplices at the time of planning a felony is highlighted as the one that

serves as the foundation for criminal liability. If death is reasonably certain to occur or if the group should

have known that death was likely to occur in a zone of felonious danger, they can be found liable for 1st or

2nd degree felony murder, respectively. Additionally, the principal is liable for any crime if it was reasonably

certain to occur or if he should have known that such criminal offense was likely to occur. After committing

an object felony, an accomplice can be liable only for crimes that they were reasonably certain to occur.

Focusing on the mens rea of the group at the time of planning limits the reach of vicarious liability and

ensures that criminals are not overly punished.

Kingpins plan!

KEYWORDS: felony murder, complicity, principal, accomplice, vicarious liability, conspiracy, double jeopardy

INTRODUCTION

The central objection American criminal law scholars level at the doctrine [of felony murder] is that it is a form of strict liability and they see strict liability for serious crimes as morally unacceptable… Despite their grave misgivings about the doctrine, then, it might behoove criminal law scholars to consider ways of improving the rule and its application, rather than treating current practice as an all-or-nothing proposition. – Claire Finkelstein1

Over 5000 years ago, in southern Mesopotamia, the Sumerians erected the first civilization, along the

Euphrates and Tigris rivers.2 Following suit, around 2050 B.C., a king by the name of Ur-Nammu pioneered

the first constitution of law, defining what policies would guide and shape Sumerian society.3 This system of

laws was the leading codification of civilized society.4 The citizens of Sumer, now modern-day southern Iraq

and Kuwait, thought of the Code of Ur-Nammu as fair and thus respected it. Continuing today, the code is

recognized as the foremost to develop the notion of “proportionality of crime and punishment.”5

As most would expect a just system of laws to have, the Sumerians found it critical to punish those

who murdered with malice aforethought. Section 1 of the Code of Ur-Nammu states: “If a man has

committed murder, that man shall be killed.”6 As King Ur-Nammu saw it, capital punishment was a fitting

sentence for killing another.

Since civilization began in the Tigris-Euphrates Basin, the definition of what constitutes a crime has

expanded and, synonymously, liability for murder has been refined to better reflect culpability. A more

recent development of liability for death of another and one of the most powerful legal inventions that has

been a useful tool of a district attorney is felony murder. This type of liability allows a felon to be held

responsible for first degree murder if a person dies for any reason during the commission of a felony. Strict

liability adheres to the actor premised on the idea that a criminal, by committing a felony, assumes all the

risk of the commission, seemingly no matter how remote the death was from his actions.7 Unsurprisingly,

such liability has created some upsetting findings of guilt, sentencing felons for the most heinous crime with

no showing of any mental state evidencing an intention to kill.

1 Claire Finkelstein, Merger and Felony Murder, Defining Crimes: Essays on the Special Part of Criminal Law 218 (R.A. Duff and Stuart P. Green eds., 2005)2 Shahid M. Shahidullah, Crime Policy in America: Laws, Institutions, and Programs (Lanham, Maryland: University Press of America, 2008) 13 Id at 24 Id5 Id at 36 Dominque Charpin, Writing, Law, and Kingship in Old Bablylonian Mesopotamia (The University of Chicago Press, 2010) 757 “Layman, along with Jose Quiroz, 17, Levi Sparkman, 17, and Anthony Sharp, 18, were arrested following an attempted home invasion at 1919 Frances Ave. on Oct. 3. During the invasion, 21-year-old Danzele Johnson, who was also a part of the group that broke in, was shot and killed by the homeowner… The four teenagers were charged with murder during the commission of a felony, commonly known as felony murder. Under Indiana law, if anyone dies during the commission of a felony, everyone committing that felony can be charged with murder, even if it’s a conspirator who dies.” Shannon Hernandez, Family wants felony murder charges dropped (November 8, 2012) http://www.elkharttruth.com/news/2012/11/18/Family-wants-felony-murder-charges-dropped.html

A fundamental maxim of justice is that there must be a causal relation between crime and

punishment. Criminal activity is optimally deterred when the law is guided by such a tenet because overly

punitive measures create resentment for the legal system. Society risks anarchy being built on the foundation

of a universal disregard for the law. More criminal activity occurs. On the other hand, too light of a

punishment nearly incentivizes criminal activity. No reason exists to not commit crime besides one’s own

morality. Vigilante justice ensues. Seeking to ever reach the harmonious equilibrium is a pivotal duty of the

legislature. The states that allow felony murder under a theory of strict liability have far missed the target

with finding that equilibrium. Such liability rests in a legal swamp where criminal activity is not effectively

deterred while offenders are severely punished for acts committed with no forethought [1].

“A general policy behind the felony-murder rule is to deter persons from committing dangerous

felonies, but that deterrence is illusory.”8 An exercise in reasoning can reach such a conclusion. Most felons

do not expect death to occur when planning a felony [2]. Utilizing statistics, scholars have also found no

substantial deterrent effect with current felony murder laws. For example, Daniel Ganz and Professor

Richard Perry used “regression analysis to determine whether felony murder statutes are correlated with

lower crime rates or lower rates of the average number of deaths that occur during felonies… [Their] results

indicate that the felony murder rule does not have a significant effect on crime rates or crime-related death

rates.”9 The law continues, however, to punish felons as though felony murder is a deterrent. This state of

affairs is shocking. It is my hope that the hypothetical and the analysis contained herein prompts those

charged with creating the laws of a state to change the rules surrounding felony murder, by heightening the

requisite intent and causation that a district attorney must show under such a theory [3].

A principal and the agent-accomplices of a criminal pursuit should be punished for the mens rea

developed during the planning phase of a felony. A felon’s plan creates the boundaries of intent and

determines the perceived extent and limit of future actions. The same is true of criminals acting in concert.

Whether acting together or alone, those that committed a felony where death was reasonably certain

to occur during the planning phase display a disregard for the sanctity of human life distinguishable from

those who do not believe death will occur. Accordingly, a substantial distinction exists between those that

expect death to occur during the commission of a felony and those who do not. The law currently punishes

both mind states equally with extreme indifference between the two.10 The former must be punished

differently than the latter and the law can therefore maintain an appropriate relationship between crime and

punishment as the Sumerians saw fit thousands of years ago.

8 Jeffrey A. James, Washington’s Second Degree Felony-Murder Rule and the Merger Doctrine: Time for Reconsideration, University of Puget Sound Law Review Vol. 11:311 at 315 (1988), citing People v. Wilson, 1 Cal. 3d 431, 440 (1967) 9 Daniel Ganz, The American Felony Murder Rule: Purpose and Effect available at http://legalstudies.berkeley.edu/files/2012/ 05/ Ganz-Legal-Studies-Thesis.pdf (2012)10 The felony murder doctrine “erodes the relation between criminal liability and moral culpability.” David Mishook, People v. Sarun Chun - In Its Latest Battle with Merger Doctrine, Has the California Supreme Court Effectively Merged Second-Degree Felony Murder out of Existence, 15 Berkeley J. Crim. L. 127 at 131 (2010) citing People v. Washington, 62 Cal. 2d 777, 783 (1965); People v. Dillon 34 Cal. 3d 441, 463 (1983) available at http://scholarship.law.berkeley.edu/bjcl/vol15/iss1/4.

Principle of the Golden Chalice

In this paper, the purposeful inflation of the intent from objective to a subjective standard for felony

murder purposes is to limit liability for the actions of others; due process is offended by a defendant being

held liable for acts not his own without a higher showing of mens rea. Common sense does not lend notice to

such an accused because there is potentially limited to no action by him. The law does not punish failures to

act for a reason. Hence, the argument behind holding accomplices responsible for the unplanned actions of a

fellow offender is shaky at best.

Consider the following mental construct. Imagine a golden chalice. If an act fills a quarter of it, then

the intent must fill the remaining three quarters. The slighter the action, the more need for a showing of a

guilty mind state, especially considering the nature of the crime and the severity of the punishment [4]. The

two often go hand in hand. One overt act can corroborate the strongest of intentions.

Associating accomplice liability with conspiracy liability is a practice derived from Pinkerton v. United States. In Pinkerton, the defendant was indicted for substantive tax

evasions that were committed by his brother while the defendant was in jail, and for conspiring with his brother to evade taxes. Under the ‘Pinkerton Rule,’ one may be held responsible for the substantive crimes of a co-conspirator committed to further the plan unless he overtly acts to disavow or defeat the conspiracy. Later courts have utilized the

Pinkerton Rule to establish a basis for holding a defendant accountable for crimes committed by a principal, even outside the conspiracy context (See People v. Padilla, 906

P.2d 388, 404 (Cal. 1996) (holding that a defendant’s guilt in aiding and abetting another in a murder is derivative, predicated on the acts and guilt of the principal, and thus like the

conspirator’s liability). The Pinkerton Rule governing conspiratorial liability and the underlying theory of accomplice liability produce similar results, and are each questions of

fact for jury determination. Therefore, it logically follows that holding an accomplice vicariously liable for those acts which are the natural and probably consequences of the

intended crimes should be permissible. – Lisa G. Stark11

Add outline of paper

11 Lisa G. Stark, Criminal Law: The Natural and Probable consequences Doctrine is Not a Natural Result for New Mexico – State v. Carrasco, 28 N.M. L. Rew. 505, 515 (1998) citing Pinkerton v. United States, 328 U.S. 640, 641, 647 (1946). Some states might want to create an opportunity for a criminal to renounce his efforts when collaborating with fellow offenders. If the other co-conspirators decide to pursue a course of action that he finds disagreeable, he can renounce his participation and declare himself inactive. If he does so, he is only liable for conspiracy to commit the object felony if he agreed to the original plan and if he committed one overt act. An overt act is enough to confirm a conspiracy, but cannot additionally serve as the basis for an attempt; only a material contribution can. A material contribution serves the requirement 2 in Attempt [Golden Chalice]. Conspiracy and attempt do not merge for an accomplice. Renunciation is enough to be found not guilty of attempt even with a material contribution. Conspiring is a separate crime with a different actus reus (verbal act of agreeing, committing to complete object felony) than attempting the object felony which minimally must be a material contribution. The burden is with the co-conspirator to prove renunciation. A co-conspirator becomes an accomplice upon commission of the object felony; he is then liable for all preceding crimes committed by any accomplice before that directly relates to the plan as he believed it was to be. This penalty disincentivizes acting in the zone of felonious activity.

HYOPTHETICAL

Pat, Apu, and Lester Lacky sat in Apu’s apartment. Apu was explaining how he just lost his lucrative

bank teller job that day. He was not happy about it. “If it weren’t for that jerk Steve. You know? That one

who’s always messing with me because I hit on his girlfriend.” Pat and Lester gathered that it had something

to do with Steve. Apu continued to ramble incoherently. “Buddy! I’d pop him off. I don’t like it one bit,

boys.” Neither asked him what that meant. Pat managed to get another beer from the fridge while Apu

continued to “vent.”

After returning from the kitchen, Pat proposed that they rob the bank. They all needed the money

now. Lester was on welfare and Pat’s income from construction had been kind of slow as of late. Pat asked

Apu if he knew how they could rob the bank. “From 11:00 a.m. to 1:00 p.m. every Friday, there is only one

security guard. The other one that guards the vault goes to the central office to get an armored vehicle so that

they can deposit the money from the week. He returns damn near 1:00 every time. The bank leaves it open

for those two hours so that tellers can deposit cash.” Steve is the one that guards the vault, but Apu did not

mention that fact.

Pat asked Apu and Lester if either knew where they could get firearms. Lester’s cousin owned a gun

range and had a license to sell guns as well. “Don’t worry, boys. My cousin, Devin Dealer, can get us what

we need. He can get us unregistered guns so that it doesn’t get traced back to us.”

“We’ll also need a get-a-way,” Pat said. “I’ll ask my girlfriend if she can drive us.”

Lester acquired two guns because that is all he could get from Devin Dealer. A 9 mm Lucy and a 45

would have to do. Pat decided that Apu and he would be the ones to carry the guns.

Pat’s girlfriend, Lacy, drove the three to the bank. Before getting out, Apu does a line of cocaine and

puts the baggie back into his upper left jacket pocket. “Calm my nerves so I can focus on the mission,

brothers.” He lights a cigarette with his Zippo. “Ah. Takes me back to Iraq. Now. Let’s do this!”

The three entered the bank to rob it. Pat carried a gun as did Apu. Lester was responsible for

collecting the money.

“Alright, this is a stick up. Don’t nobody move,” Pat commanded. Sam the Security Guard had his

gun removed by Lester, while Pat pointed the 45 caliber at him.

Just then Steve the Security Guard – the one who left to get the armored vehicle – came back into the

bank because he forgot the keys for the safe deposit box. Apu shot Steve immediately killing him. “Why did

you do that?” shouted Pat. “I never liked him. Good riddance.” In fact, Steve was an unlikeable and

disagreeable person.

At that time, Pat looks at Lester and says, “Get the money in the bags, Lesty! As much as you can.”

Lester goes into the vault and fills up eight duffle bags of money. He hands one to both Pat and Apu. Lester

chooses to carry six on his own.

Apu then throws his cigarette in the trash, as they leave the building. The bank eventually caught fire

and burned to the ground. Nobody was harmed in the fire.

They enter the car and successfully drive away. Apu snorts a celebration line.

The police created a road block for DUI drivers. That day happened to be St. Patty’s day. The police

recognized the four based on a description that was radioed out half an hour earlier. All were arrested.

In prison, the four were informed that a bank employee, Victoria, forgot to get her heart pills from the bank

before she left. There was enough in the bottle for two months. It was lost in the fire, though. She noticed it

was missing the morning of the robbery at 6:30 a.m. before her morning jog and intended to pick up the

medicine (on her day off!) sometime around 5:00 p.m. before the bank closed. She died the next week of

heart complications.

One expert, a graduate of the local community college’s pharmacology program, is prepared to state

that Victoria would not have lived even if she did have her medication. Another expert, a Fedex employee,

will testify that a new prescription could have been received within 2 days if her healthcare provider would

have sent it via priority mail. But her insurance does not cover priority mailing of medication; the coverage

only permits express delivery which would have taken 9 days from Germany. The state will offer expert

testimony from Dr. Trustworthy that Victoria would have lived if she would have taken her medication

within 7 days of the robbery.

What crimes have been committed? Apply kingpin liability where appropriate.

ANALYSIS

What is the plan? Is there a principal (planner / leader)? Who are the accomplices? Are there any accessories?

Facilitators?

Pat is a principal of 1st degree Robbery

Principal: Pat

Accomplices: Apu, Lester [5]

A principal is the one that plans, leads, or organizes the agent-accomplices pursuant to a criminal

purpose and that chooses the course of performance significantly altering the probability of success.

Conversely, accomplices do not plan but can react to circumstances if no opportunity to consult the principal

exists (See APPENDIX G: Escape & Self-Defense). Subject to the principal’s direct oversight and

determination, an accomplice is an actor who was participative in a zone of felonious activity [6] with the

specific intent to commit the object felony. The principal’s planning, leading, and organization of the

accomplices, coupled with an agreement to commit the object felony, establish a principal-agent relationship.

The district attorney will argue that Pat was the principal and Apu and Lester were agent-accomplices

for 1st degree robbery. Pat was the planner of the predicate felony of robbery [7]. Not only did he acquire the

transportation, he proposed the idea and developed a plan to accomplish the goal. The plan here was to use

deadly weapons to rob a bank and to escape in a car driven by Lacy. As the planner – kingpin of the robbery

– Pat will be liable for all crimes directly and tangentially related to him as the kingpin of the robbery [8].

The equal-splitting-of-profits exception does not apply. Even if he plans the crime a principal that

splits the profits is an accomplice. He is not enriched at the expense of others and compensated for his

mental efforts. Here, Pat is not just an accomplice planning with fellow criminals. No discussion was

entertained of splitting the profits equally. Pat will distribute the funds pursuant to the commensurate risk

each took. They trust him to do so as principal.

Note: Incentivize criminals to tell DA who did what in the zone of felonious activity (See ANALYSIS: Other Crimes) to lessen their sentence. Get the principal!

Crimes vicariously committed by Pat as principal:

Liability through Apu: One count of first degree robbery and one count of unlawful possession of a

firearm. For these charges, because only one object of felonious desire, the money at the bank, exists

and he and each accomplice were members of the same transaction, the sentence will most likely be

concurrent for his commission of robbery as an active principal and Apu’s. Two strings of action met

at the robbery to become one. Pat is already guilty of planning the robbery (See Test for Felony

Murder: Principal – Planning).

The DA must argue non-concurrent sentencing because the principal, as the leader, is liable for both

the reasonably certain and the natural and probable consequences of his plan once the object felony

has been committed (See APPENDIX G: Escape & Self-Defense). He is responsible for any agent-

accomplice who acts according to his plan to commit the robbery. Thus, there are two separate crimes

warranting non-concurrent sentencing: one based on the organizing (Apu’s offense) and the other

based on Pat’s commission.

Liability through Lester: One count of 1st degree robbery or larceny? Most likely it will be larceny.

Pat’s same action – robbery with a deadly weapon – cannot later elevate agent-accomplice Lester’s

offense of larceny to the derivative crime [9] of 1st degree robbery for vicarious liability purposes –

double jeopardy violation. If Pat is found vicariously liable of larceny, Lester still can be found guilty

of 1st degree robbery. Like with Apu, because of a potential double jeopardy violation Pat might not

be liable for larceny and robbery. The two crimes merge. The same is true for an inactive principal.

Liability through Lacy: Accessory to first degree robbery. Said crime has less punishment than

second degree robbery. Perhaps the principal cannot be punished for the accessories’ crimes? Is

society not concerned more with the dangerous crime conducted in a zone of planned felonious

activity?

o A clever DA might have Lacy sign a plea bargain agreement stating that she was an

accomplice. The thinking is Pat can then be held liable for Lacy’s crimes as an accomplice.

This tactic will not work, though. The facts and the law applied to those facts determine

complicity status, not the will of the district attorney [10].

Pat was an accomplice, not principal

Defense attorney might argue that Pat was not a principal and was a mere accomplice as was Apu

because the group collectively devised the plan. “Pat asked Apu if he knew how they could rob the bank.”

Accomplices are responsible for crimes that were reasonably certain to occur subject to having their

crimes raised because of the aggravating factor of complicity. Only an organizer / planner can be liable

vicariously for all agent-accomplices’ crimes related to his plan [11].

As an accomplice, Pat can only be found guilty of first degree robbery and possession of an unlawful

weapon for his actions because he did not plan nor did he command. Apu would still be guilty of first degree

robbery. Pat is a principal, though. He is liable for all crimes directly and tangentially related to his plan.

Murder of Steve: Pat’s Liability

The district attorney will argue that Pat was the principal for robbery and thus murder as well. They

brought deadly weapons to rob a bank. The DA’s argument is by bringing deadly weapons, intent to kill or a

reckless disregard for life is shown. The criminal defense attorney will argue that this action is not enough

for Pat to be held liable for the murder of Steve.

In the end, she cannot prove that Pat was the principal of the murder. It was not reasonably certain

nor tangentially related to him because there was no discussion in the planning phase of the robbery

concerning somebody being killed. Death was not reasonably certain at the time of planning, although it was

foreseeable [12]. Pat did not have that as part of the plan to rob so that they could acquire money, the

communal purpose, i.e., the most basic goal that unites the criminals. The community of purpose here is

stealing cash. Nobody planned to murder for that purpose. It might be different if it were planned or

mentioned as a possible risk, although death must still be reasonably certain to the principal at time of

planning for principal to be liable for 1st degree felony murder (See ENDNOTE [8]).

The DA will counter that it was reasonably certain to Pat that Apu would kill Steve; Pat can then be

liable for 1st degree felony murder. Pat knew Apu was just fired. He also knew that Apu blamed Steve, the

decedent-victim, for losing his job.

This standard is harsh to a district attorney. She must prove the defendant knew with reasonable

certainty that murder would occur. This high standard is demanded for 1st degree felony murder because no

action on behalf of the principal other than leading / commanding / organizing – a verbal act is arguably one

of the lowest levels of action – need be shown (Golden Chalice: intent fills the cup with a drop of an act).

Pat’s knowledge does not rise to that level. He did not request special firearms for the job, nor was

there any other planning around the topic of needing to kill somebody to safely rob the bank. They brought

guns to scare people and to get the money. The group did not intend to hurt anyone. That was implicitly the

plan because there was no mention of needing to kill nor did anybody plan around it. Pat and Lester did not

know Steve would be present at the bank.

Active Principal: 1st and 2nd Degree Felony Murder (Should Have Known)

An active principal is a principal present during the commission of the object felony doing more than

commanding in a zone of felonious activity. In relation to the murder of Steve, DA can argue that Pat was an

active principal subjecting him to the should-have-known standard for 1st degree felony murder. Pat pointed

the 45 caliber at Sam. She would not need to argue under the reasonably-certain-to-principal standard to find

Pat guilty of 1st degree felony murder. Both Apu and he could then be liable.

The DA must prove that Pat should have known death was likely to occur at the time of planning

(See APPENDIX A: TEST FOR FELONY MURDER: Active principal and accomplice- Exception to

2nd degree Felony Murder). This lower standard exists for the principal who is active at the scene of the

crime (Golden Chalice). However, she could not prove this mens rea element because she cannot persuade

the jury that Pat should have known that death was likely to occur [13]. No reason as to why Pat should have

known that Apu was likely to murder Steve or even that death was a substantial risk [14]. The group did not

discuss needing to kill during the planning phase for the communal purpose of robbing. Apu did not tell Pat

that he would kill Steve if he saw him. Pat did not know Steve was likely to be there.

Moreover, Pat did not kill the security guard. He did not even materially act to cause death in the

zone of the robbery (the bank).

Unlike 1st degree felony murder with needing to show the active principal’s material contribution, for

2nd degree felony murder the DA must only prove that the active principal [15] should have known death was

likely to occur, the mens rea. Here, the DA would not be able to prove this mind state. As mentioned above,

no reason exists why Pat should have known death was likely to occur at the bank. Consequently, Pat cannot

be liable for 2nd degree felony murder either.

Apu acted alone on this one. He is the sole actor. No principal-agent relationship can be established

because there was no planning around murdering Steve. Thus, Pat cannot be held vicariously liable.

Note: The should-have-known standard is not met because the felony is considered inherently dangerous in the abstract [16]. The review and sentencing should be fact specific and left to the jury composed of the members of a community to decide when a criminal group acts with the requisite intent to be found guilty of murder. The American legal system must inflate the mens rea necessary for 2nd degree felony murder, not keep it the same [17].

Principal for Steve’s murder: Apu

DA could argue Apu committed first degree substantive murder: “I never liked him. Good riddance.”

No accomplice can then be vicariously liable. Apu frolicked and detoured. There was no planning.

Furthermore, nobody agreed to assist. No principal-agent relationship can therefore be established. Apu

unilaterally decided and shot Steve immediately upon entering the bank.

1st Degree Felony Murder by accomplice [18]

Apu may be held responsible under 1st degree felony murder. He worked at the bank. Apu should

have known that Steve was likely to be there and that he would shoot Steve if he saw him [19]. Moreover,

Apu killed while committing a felony. He shot Steve. Shooting Steve was not necessary to commit an object-

felony, the robbery [20]. Furthermore, Apu did not shoot Steve to further the collective purpose of stealing

money [21]. He is guilty of 1st degree felony murder and his state of mind at the crime is immaterial.

Murder of Steve: Lester’s liability

What about Lester? Why did he get a 45 and not two 9 millimeters? Did Lester know death would

occur thus surpassing both the “reasonably certain” and the “should have known at time of planning”

standards? While he did not directly and actively participate in the homicide, by acquiring the guns, Lester

did materially contribute to the homicidal act. However, that contribution was not in a zone of felonious

activity (the bank). He cannot be found guilty of felony murder.

Accessory to Apu’s murder of Steve: Devin Dealer

Devin Dealer is not an accomplice to the robbery or to Apu’s murder. There was no mention of the

unlawful purpose to Devin. Devin did not have the requisite specific intent to participate in the object felony,

the robbery. Furthermore, there is no discussion of Devin’s state of mind when he sold the gun. Thus, this

single transaction cannot establish complicity status. Additionally, he was not present in any zone of

felonious activity. If anything, he will be found to have criminally facilitated the robbery [22].

Even though he materially contributed to the killing by procuring firearms for the group, this act was

not direct enough to stand as a foundation for any liability under felony murder. A third party’s choice and

subsequent action breaks any chain of direct or material causation that is linked to a facilitator or an

accessory. For liability under felony murder, this statement is true even if, believing it probable or even

knowing that the group would commit robbery and kill somebody because Lester has killed before in a

robbery, he rendered aid.

Devin will be found guilty of unlawfully procuring two firearms for defendants: two counts for two

guns despite it being a single transaction because two people can use two guns- Two Hands Rule [23]. This

transaction stands as the foundation of two counts of being an accessory to unlawful gun possession, if Devin

knew or thought he was selling to a group, not just Lester, an individual. It is unlikely that one person will

purchase more than several handguns for his own use in one transaction. Selling a lot of several guns is

evidence of intent to sell to a group or knowledge of such circumstances.

This presumption is one the law prescribes to gun dealers because it is rational to believe all dealers

will only sell to registered gun owners. Gun dealers can overcome the rebuttable presumption by introducing

evidence that only one person intended to use the guns. Otherwise, the law presumes that one gun will be

used by only one person. Thus, a dealer is presumed to be criminally liable for each gun unlawfully

transferred as one individual sale / transaction, constituting a separate criminal offense.

Add discussion of liability of Apu

Add discussion of Victoria’s death

Other crimes

Lester is liable for larceny and for two counts of unlawful possession of a deadly weapon. He

purchased two guns from Devin.

The DA will want the law to be structured such that Lester is liable for 1st degree robbery, i.e.,

larceny – putting stolen money in the bags – with the aggravating factor of complicity: working in concert

with two first degree robbers that had deadly weapons. This aggravating factor raises his larceny

(misdemeanor) to first degree robbery (felony), similar to NY PEN. LAW § 160.10(2)(b) [24]. He

committed larceny and is vicariously liable of unlawful possession; focus on the acts in the zone of felonious

activity (See DOUBLE JEOPARDY).

When a criminal acts in concert with fellow offenders, the aggravating factor of joint effort [25], the

group knows that the object crime – felony or misdemeanor – is more likely to be accomplished when they

work together. This characteristic distinguishes the criminal that acts alone; accomplices acting in concert

with deadly weapons are arguably more in need of deterrence than the “lone gunman.”12

Lacy was an accessory to first degree robbery or an accessory to larceny. She intentionally aided

three thieves outside the zone of felonious activity [26]. It is not stated in the hypo that she knew they had

guns. Was she an accessory to larceny then? Lacy is guilty of only misdemeanor crimes except if the jury

finds it probable that the three would have a gun to rob a bank. The DA can then argue accessory to first

12 See The U.S. National Archives and Records Administration, Report of the President's Commission on the Assassination of President Kennedy (The Warren Commission Report) available at http://www.archives.gov/research/jfk/warren-commission-report/ (last visited March 21, 2014)

degree robbery (Class E felony). An accessory to a felony is a less serious crime with less punishment. The

lower mens rea standard is acceptable.

Derivative Defense

Suppose Apu signed a plea bargain, he was convicted of 1st degree substantive murder, and it was an

object felony planned in the kitchen [27]. Further, assume Pat could somehow be vicariously liable for the

murder. As principal, could Pat argue that Apu being under the influence of cocaine negated the requisite

intent? Could the principal raise such a negation of the mens rea? How would principal's knowledge of

accomplice's cocaine use affect the elemental negation, if at all?

What if Pat knew that Steve would be there but Apu as an accomplice did not? How would this affect

any derivative defense based on intoxication? None could be raised by Pat as a matter of law if he knew with

reasonably certainty that death would occur at the time of planning in the kitchen. The principal’s guilty state

of mind trumps any ignorance of the accomplice (See ATTEMPT: Mistake of Fact).

In short, the principal’s mind state at the time of the planning would forbid him from later raising

such a derivative defense if the crime was reasonably certain to occur at the time of planning. A different

result might arise for a murder that the principal should have known was likely to occur.

Duress and Private Entrapment

If an “accomplice” is coerced or heavily incentivized by the principal to act, the principal cannot

assert the self-created defense of duress or private entrapment. Duress is a defense when an actor performs

involuntarily because of a perceived threat including job loss in a corporate context. Private entrapment is

created when the principal offers a reward to commit wrongdoing that is so great as to crush free will. The

same courtesy and laws that protect the police with methods of entrapment would apply to the principal [28].

If the threat or temptation was created by the principal, he cannot later benefit by raising such a

derivative defense. As the philosopher and scholar of constitutional law Ronald Dworkin wrote, “no man

may profit from his own wrong”13. Accordingly, it would be incredulous for the principal to compel the

unwilling accomplice and be protected by calling duress or private entrapment as a derivative defense. The

accomplice is the only person that has standing to call these defenses.

13 Ronald Dworkin, Taking Rights Seriously (New York: Bloomsbury Academic, 2013; London: Duckworth, 1977) 51

FROLIC & DETOUR (ULTRA VIRES)

Suppose that during the robbery, Lester sees an old enemy, Mr. Unlucky. Lester decides “to kill that

son of a gun” and asks Apu for help. Apu agrees [29]. Pat is in the back and not aware of the situation. Here,

a different plan has been proposed by a new principal, Lester. They are now acting outside the scope of the

plan developed in the kitchen. Killing is not even tangentially related to robbing the bank: it is unnecessary.

Thus, it cannot be argued that killing Mr. Unlucky is in furtherance of the original plan.

Using the 550 paracord carried in his rucksack14, Apu restrains Mr. Unlucky in a wooden office chair

[30]. Lester then asks for Apu’s gun and shoots Mr. Unlucky in the head.

As principal, Lester is reasonably certain death will occur. He did it after he said that he would.

Effects are created by actors intending to cause. Though Lester did kill, no act on Lester’s behalf need be

shown. The DA must only prove that it was reasonably certain to the principal that death will occur. Lester is

guilty of 1st degree felony murder.

Mr. Unlucky’s death: Apu’s liability

It was reasonably certain to all accomplices (just Apu here) that death would occur. Assume Apu

knows Lester to be a man of his word. This state of mind establishes the requisite mens rea.

He materially contributed to the killing although he did not directly and actively participate in the

homicide: Apu restrained Mr. Unlucky in the office chair and gave Lester his gun. His contribution is not

what directly caused Mr. Unlucky’s death. Lester shooting him in the head did. Notwithstanding Apu only

having materially contributed, he can be held liable for 1st degree felony murder, because it was reasonably

certain to all accomplices that death would occur, by restraining Mr. Unlucky and giving Lester his gun [28].

If Apu only should have known death was likely and not reasonably certain to occur because Lester is

not always trustworthy, it would not be enough to find Apu guilty of 1st degree felony murder: no direct and

active participation in the homicidal act. Rather, he can still be found liable for 2nd degree felony murder.

Was Pat part of the frolic and detour?

Pat is not responsible for planning any part of this frolic and detour because Mr. Unlucky’s death is

not reasonably certain to Pat as principal to occur during the planning of the robbery in Apu’s apartment.

Killing Mr. Unlucky was not discussed in the original plan. Moreover, no reason exists as to why Pat should

have known Mr. Unlucky’s death was likely to occur during the planning phase [32]. Pat did not know that

Mr. Unlucky would be there. It is not mentioned if Pat even knew about Mr. Unlucky and his relationship

with Lester.

Pat did not materially act in any way to cause murder subjecting him to liability under 1st degree

felony murder. He did not pull the trigger (actus reus) nor did he materially contribute in the zone of

felonious activity by asking Lester to acquire guns. Pat cannot be held liable for 1st or 2nd degree felony

murder.

14 Semper Paratus: Motto of the United States Coast Guard

Pat was not the principal for the murder; he did not plan the murder, just the robbery and death was

not reasonably certain to Pat at the time of planning the robbery and a reasonable person in Pat’s position as

principal would not have known death was likely. Ipso facto, neither is Pat an accomplice to the murder of

Mr. Unlucky pursuant to the plan of robbery as an active principal as opposed to Apu being the principal for

murder and Pat being an accomplice to the murder [33].

With implementing kingpin liability, the argument negating culpability because of involvement in a

felony should not be an affirmative defense pursuant to NY PEN. LAW §125.25(3) [34]. Due process is

offended by placing this burden of proof on defendant here. It is not enough that the murder was committed

“in the course of and in furtherance of” the felony and one accomplice unilaterally decided to kill [35]. This

action by another does not establish sufficient liability to shift the burden of negation onto defendant. The

onus stays with the DA to argue guilt beyond a reasonable doubt for each element of felony murder

including causation. It should not be an affirmative defense to argue otherwise. Liability based on

participation in the felony with no culpable mind state for murder is not enough to shift this burden onto the

defendant. To be deemed a killer, a defendant must exemplify a culpable mind state gripped by the hand of

Death. This despicable mind state is why laws against murder exist! The conscious disregard for the life of

another human being exhibits a requisite mind state necessary for murder.

ATTEMPT

A jury can find the principal and agent-accomplices of a criminal venture guilty of attempting to

commit a crime when:

1) the contours of a plan have been defined and the principal and accomplices understand the

consequences that are reasonably certain to occur (agreement);

2) Evincing a good faith effort, the group has collectively performed a course of conduct reasonably

within the scope of the plan tending to show an intent to pursue the criminal purpose to its end

notwithstanding whether completion is an obtainable goal; and

3) if there was an intervening cause, but for the intervening cause frustrating or preventing achievement

of the communal goal, the participants more than likely would have continued with the plan to their

agreed upon objective.

The second requirement embodies the Principle of the Golden Chalice applied to attempts. To be

found guilty of attempt and to show proof of an agreement, the accomplice must minimally perform an

action which serves as a testament to the specific intent necessary to complete the object crime, i.e., a

material contribution. This requirement is not new. It is known as the equivocality test [36]. The only

difference is the Golden Chalice Principle applies to crime, generally, and does not apply only to attempts.

Vicarious liability of principal

The principal can be held liable for the attempted crimes of the accomplices if the attempted crimes

are reasonably certain to occur or the principal should have known that they were likely to occur [37].

For double jeopardy purposes, the planning by the principal is a separate crime from the attempted

commission of the underlying criminal offenses.

Without a material contribution, a principal is a co-conspirator and not liable for planning. Once a

member commits a material contribution, a principal can be charged with planning and conspiracy (the two

counts merge); he is liable for planning, any attempts, and the substantive offenses (both reasonably

certain and reasonably foreseeable). An accomplice can only be charged with conspiracy, attempts, and

object crimes (necessary to accomplish object felony: reasonably certain).

For a principal to be found liable for the planning, serving as the foundation, the kingpin must also be

charged with an attempt based on the underlying attempt of an accomplice (vicarious liability) or through the

principal’s act that materially contributes to the commission, a principal’s attempt. In the hypo, then, Pat

would be responsible for planning the crime it there is an agreement with the accomplices and an agent-

member (Apu or Lester), not accessories and facilitators, commits an act within the scope of the plan that

materially contributes to its commission that would be considered an attempt to commit the collective

criminal purpose (See Test for Felony Murder: Principal – Planning). The accomplices can be held liable

for a principal’s attempt if his attempt was reasonably certain to occur after agreement.

Liability of Accomplices

Acting with intent to complete the crime, each member must perform one overt act to further the

communal goal to be considered a co-conspirator. A co-conspirator must commit an act that substantially

further’s the groups criminal purpose to be held liable for an attempt, i.e., a material contribution. After

agreeing to the plan, a future accomplice must commit a substantial action or a course of conduct tending to

show that co-conspirator displays the intent to complete the plan to be considered a member. Mere

agreement is not enough. Also, the principal must plan for that member to be present in a zone of felonious

activity. Without the plan specifying that the person committing an attempt be in a zone of felonious activity,

he is a facilitator or an accessory to the object felony. If the police intervene, before a future accomplice

(planned to be in zone of felonious activity) completes one material act, he is not liable for attempt; he is

liable for conspiracy to commit the object felony. Being planned to act in the zone of felonious danger is not

enough.

For an attempt, possible material acts include speaking to another to further the plan, buying a legal

item to construct a bomb, suggesting a course of performance that significantly alters the probability of

success if later pursued, and advising the group on how to accomplish a task if that advice significantly alters

the chosen course of action. To determine the significance, the more heinous the crime, the slighter the act

need be to be considered a material contribution. Case law would determine this area of attempt. Laws

surrounding murder, for example, will be different than kidnapping.

Member: principal and future accomplice

Mistake of Fact

If a principal does not disclose the full reaches of the plan, the accomplices in the dark can only be

held liable for the attempted crimes that they believed were reasonably certain to occur. The accomplice’s

negation that the plan as the member perceived it was different than how the principal planned, with the

requirement that a reasonable person in the circumstances of the accomplice would have believed the same,

is affirmative. Therefore, the accomplices must be reasonably certain that a fellow accompice will commit

the crime and a reasonable person in the circumstances of the accomplices would also believe that it would

be reasonably certain that the other would commit the specific crime.

The statutory duty concerning what the principal or the accomplice should have known because a

reasonable person in the circumstances of the accomplice would have known cannot be discharged by willful

or wanton ignorance.

Policy: Outweighing the benefit derived from the accomplices assuming the risk that the principal might not fully disclose the nature of the plan, this burden of pleading mistake of fact incentivizes the accomplices to cooperate with the district attorney.

Double Jeopardy: Solicitation, Attempt, and merger

Assume that a principal hires two hitmen to kill his wife. He wants to ensure that she is murdered.

Each contract killer takes the necessary steps for both to be found liable for attempted murder. Fortunately,

they are both stopped by the police before the actual commission occurs. Notwithstanding that there are

arguably two separate attempts to murder, the principal here can only be found guilty of one attempt through

vicarious liability. There is only one object of murder with two strings of pursuit having the same genesis,

from the same plan. It is a legal fiction to say that he could be found guilty of two attempts of murder. The

two counts merge. The solicitations and the attempted murders also merge. Ultimately, there is one count of

attempted murder against the defendant. Showing intent to complete the crime, the number of hitmen hired

speaks to the strength of the attempt.

Requirements 1, 2, and 3 are automatically met by hiring independent contractors. Requirement 1 for

an independent contractor is that both the hirer and the contractor understand the plan. Meeting requirements

2 and 3, he hired independent contractors, and allowed them to proceed, never requesting their

discontinuance. The principal put the wheels of criminality into motion to a point where the crime would not

be abandoned without his command. Accordingly, the principal could not have performed any other act in

furtherance of the crime. The crime would have been consummated without anymore action on his behalf. In

short, the principal’s hiring of the hitmen creates a presumption that he attempted to murder. This

presumption, once established, is difficult to rebut. The principal can shift the burden back to the DA by

showing he did not intend to kill his wife because he did not believe the hitmen would be successful.

Even though the principal hired the hitmen so that they could kill his wife, he could not be held liable

for planning as a separate offense. He did not exert control over how the murder was accomplished. If he

gave them information concerning his wife’s whereabouts or told them how to kill his wife the contract

killers are treated like agent-accomplices and the principal can be held liable for planning and attempted

murder. Without these indicia of control, the principal cannot be held liable for planning.

Police Informant / Impossibility

If the hitmen did not take the steps necessary to be liable for attempted murder because each was a

police informant (inducement), then the principal could still be found liable for attempted murder. The

supposed hitmen (police) are treated like independent contractors.

Suppose that he was told by a close friend that these two hitmen would assuredly complete the

contract. Subsequently, in the principal’s mind as he saw the circumstances (See supra, Liability of

accomplices: Mistake of Fact), even though it was impossible for the killing to take place because the police

informants would not kill his wife, the man can still be liable for attempted murder (Unilateral Rule of

Agency). He hired hitmen that he thought would kill his wife and that he reasonably believed would kill his

wife. The husband-principal took the necessary steps to be liable for attempted murder.

Risk of failure / Impossibility

While it might not be known if the group of participants will be successful because there is a risk of

failure, the principal and accomplices can still be found liable for the attempt. Generally, the greater the risk,

the more likely they might fail; the payout will be higher in that case. Thus, they should be punished for

pursuing the action because the possibility of success is what prompted them to commit the crime even if the

goal was difficult or impossible to obtain. If the goal is difficult to accomplish, a significant course of

performance must corroborate a good faith effort.

Analysis of the hypothetical

In the hypothetical, Pat and Apu can be found liable for attempted 1st degree robbery once they get in

the car and begin to drive to the bank. The series of overt acts before then is not enough. Purchasing the guns

is insufficient to show an intent to pursue the plan to completion. This purchase only provides the partial

means to commit the crime, even though the gun is a material element of the robbery but it being illegal is

not. Assume lawful possession. For the attempt to be a separate crime than the lawful possession of a

firearm, another underlying act must be committed by the member [38]. Driving while unlawfully possessing

firearms to the proposed crime scene (a material contribution) is an additional act extending beyond unlawful

possession that demonstrates intent to complete the crime. This additional act distinguishes the attempted

robbery from unlawful possession of a firearm. The essence of attempt and double jeopardy is rooted in the

existence of an additional act separate from that of another charged crime. Moreover, this additional act

affords accomplices an opportunity to renounce their attempt. The law should afford Pat, Apu, and Lester

this opportunity to have a change of heart and renounce their pursuit [39].

Liability of Pat

If the police arrested the group in the car before they reached the bank, Pat could be held liable for

Apu’s unlawful possession of a firearm and for Apu’s attempted 1st degree robbery. Because he was traveling

to the zone of felonious activity, his attempt and Apu’s merge.

DOUBLE JEOPARDY

Suppose, in the kitchen, Pat, Apu, and Lester decide to rob the bank and to buy cocaine with the

money to sell it. Pat and Apu then rob the bank; as agreed only Apu has an unlawful weapon.

Bringing a sawed-off double barrel shotgun without Pat’s or Apu’s knowledge Lester later purchases

3 kilograms of pure crack cocaine from Diego, a first-time business associate. The transaction was is a

dangerous part of town. He is arrested driving from the purchase. What crimes have been committed by each

participant?

If the principal or an accomplice commits an offense, he is liable for that offense. A principal is liable for the

greatest committed offense. An accomplice not committing the actus reus for an object felony that is

reasonably certain to occur can only be charged with the lowest offense containing the core actus reus.

The core actus reus at the bank is stealing property

Pat

First degree robbery (Apu’s crime: the greatest offense containing core actus reus of object felony)

Possession with intent to sell (Lester)

Possession of an unlawful weapon(Lester: Pat and Apu should have known handgun, not shotgun possession

was likely)

Apu

First degree robbery

Possession with intent to sell (Lester)

4th degree possession of an unlawful weapon (Lester’s possession of shotgun)

Lester

Grand larceny (Pat’s grand larceny at bank: the lowest offense containing the core actus reus of requisite felony)

Possession of an unlawful weapon (Apu’s possession of firearm)

Possession with intent to sell

1st degree possession of unlawful weapon

Note: The DA cannot trump charges with entrapment by having the police bring a shotgun to a cocaine purchase if it is not necessary as a safety measure. The police / law enforcement must be able to justify their level of involvement.

APPENDIX A: TEST FOR FELONY MURDER

Principal

1st Degree Felony Murder for Principal

Reasonably certain to the principal that death will occur at the time of planning and death does occur in a zone of planned felonious activityα

Active principal: principal should have known at time of planning that death was likely to occur and materially contributed to the homicide in a zone of planned felonious activityβ

2nd Degree Felony Murder for Principal

Active principal should have known at time of planning that death was likely to occurγ

Planning

Agreement and an overt act by principal or accomplice that materially contributes to accomplishing the object of the plan, e.g., an attempt

Accomplice

1st Degree Felony Murder for Accomplice

Reasonably certain to all accomplices that death will occur at the time of planning and the accomplice materially contributed to the death in a zone of planned felonious activityα

Contributing accomplice to the murder should have known at time of planning that death was likely to occur and direct and active participation in the homicide in a zone of planned felonious activityα

2nd Degree Felony Murder for Accomplice

Contributing accomplice to the murder should have known at time of planning that death was likely to occur and materially contributed to the homicide in a zone of planned felonious activityγ

Active Principal and Accomplice

Exception to 2nd degree Felony Murder

It is well known that a police response is a likely consequence with every felony committed. Thus, every principal and accomplice should know that such a response will likely occur to protect the public and maintain order, no matter how careful the planning is. It is general knowledge as a matter of law.

The principal is not liable for any murder committed unless he was active and materially contributed to the death of the policeman. An accomplice must materially contribute to be found liable.

The exception does not apply to undercover police. An undercover police officer has a heightened duty because the line of work is more dangerous. Hence, they receive special training. α Death penalty allowed. 25 years to life without paroleβ 25 years to life without paroleγ 10 to 15 years α

α Death penalty allowed. 25 years to life without paroleγ

After the undercover policeman has verbally identified himself as a cop, self-defense still covers a criminal if he kills an undercover policeman because crook does not know if the person is really a cop or if he is lying so that the pretending criminal-cop can kill. An undercover police officer assumes this risk. While the 2nd degree felony murder exception does not apply, the other rules still do.

Policy: Cheapest cost avoider – law enforcement, plan accordingly.

If the police officer assumed a substantial and unjustifiable risk (mind state for NY’s current 2nd degree depraved indifference felony murder statute), he disregarded his own life by risk taking. The police manual and training determine what acceptable risks are. Driving into oncoming traffic is such a substantial risk.‡ There can be no apprehension at all costs unless, for example, the police are pursuing a murderer or a kidnapper (justifiable). The police have a duty to be safe and not endanger the public by acting recklessly placing society at risk. Incentivize safe methods of apprehension. Each law enforcement agent has a duty to act as a reasonable police officer and not assume substantial risks.

What risk-taking behavior (recklessness) is being incentivized with the current felony murder and self-defense rules? Incentivize safe methods of catching criminals and limit loose cannon tactics.

‡ NY v. Andolfini (250 A.D.2d 695 (1998), 672 N.Y.S.2d 432)

APPENDIX B: FACILITATOR AND ACCESSORY (INSTRUMENTS OF THE FELONY)‡

Facilitator

A person is guilty of criminal facilitation when, believing it probable that he is rendering aid to a person who intends to commit a felony, he engages in conduct which provides such person with means or opportunity [a material contribution] for the commission thereof and which in fact aids such person to commit the felony.

Accessory

A person guilty of criminal facilitation when, knowing that he is rendering aid to a person who intends to commit a felony, he engages in conduct which provides such person with means or opportunity [a material contribution] for the commission thereof and which in fact aids such person to commit the felony.

Entrapment is not a defense when the police provide the means or opportunity to commit a crime.

Society is more concerned with the actor that chooses to commit the heinous crime, not the one that assists

him by providing the means. Thus, a facilitator and an accessory before and after the fact cannot be subject

to severe punishment. The crimes should always be a misdemeanor. Furthermore, punishment for an

accessory after the fact is less than for an accessory before the fact which can be a felony. It is human nature

to assist those in need.

‡ Both statutes are based on NY PEN. LAW §115.00.

APPENDIX C: PRIVILEGES

The fifth amendment to the United States Constitution provides protection against self-incrimination.

The privileges recognized by a court of law serves the purpose of upholding this guarantee by the

government to the American people. One such privilege is between a husband and wife which defers to the

marital institution upon which a society is found. Without such recognition, there can be no society.

Civilization is an outgrowth of a family.

Privileges should be expanded for any state that adopts kingpin liability, respecting the privacy of

more groups. Communications between those in other special relationships should be covered because a

principal can be found guilty for organizing any group, even his own family. Examples of other relationships

warranting protection include parents-children, grandparents-grandchildren, siblings, and cousins (any

relationship that is eligible for inheritance under the intestacy statutes: EPTL § 4-1.1). Those in relationships

by marriage and adopted family members would receive the same protection against self-incrimination and

can exercise that privilege whenever a specified family member is asked to testify against her.

Current privileges lead to individualized pursuits and a breakdown of community.

APPENDIX D: LAYERS OF AGENCY

An agent can also be a principal for a subsumed component of the plan. If an agent voluntarily acts

according to the directions of a principal, that agent can be considered a principal for the parts of the plan

that he carries out if he commands others. If an agent is also a principal is a matter of fact and a question of

degree for the jury to decide.

Consider a plan created by Principal Alpha orchestrating three groups, beta, gamma, and omega.

Suppose the beta group is led by B and gamma group is led by G. Omega is led by a member of beta. Both B

and G can be vicariously liable for any crimes that their respective group commits. Additionally, B can be

liable for any of Omega’s crimes that were reasonably certain to occur and that he should have known were

likely. Principal Alpha is liable for all the crimes committed by teams beta, gamma, and omega that are

within the scope of Alpha’s plan.

Different Organizations

If there is a high level of coordination among kingpins or if there are two leaders, each kingpin is

liable for the acts of all the groups.

Criminal Enterprise

Cite Continuing criminal enterprise (CCE): Superking pin CCE(b) (1984)

When the wheels of criminality are in full motion, e.g., criminal enterprise, the principal is not liable

for any of an employee-accomplice’s crimes. For example, a drug dealer is not subject to another drug

dealer’s control if a routine practice of slight management / oversight is demonstrated by defendant, despite

payment from employee- accomplice to principal. The principal is not active. The principal can be charged

with tax fraud regardless of minor control exercised over day-to-day operations. The employee is treated as

an independent contractor for penal violations. The criminal enterprise has established that it is the safest

way of committing underworld crimes. The principal is rewarded because he is not vicariously liable.

Otherwise, there is discontinuity of direct decision making. With ongoing criminal operations, the

district attorney must demonstrate that the principal was active in a substantial amount of the underlying

drug transactions to be liable for every sale. The same concept applies to prostitution.

Defenses

If there are a continuing string of similar crimes (same core actus reus), then the less likely it is that

an accomplice can claim duress. Repeated criminal activity denotes voluntariness.

APPENDIX E: CORROBORATION

Under kingpin liability, laws like NY PEN. LAW § 60.22(1) requiring more than testimonial

evidence to connect a person with a criminal enterprise would still be followed:

“A defendant [of a criminal group or enterprise] may not be convicted of any offense [pursuant to the collective purpose] upon the testimony of an accomplice [or a principal] unsupported by corroborative evidence tending to connect the defendant with the commission of such offense.”

Otherwise, a principal could render false or misleading testimony claiming an accomplice to be the principal.

This statutorily created ability would be unjust. Accordingly, direct or, minimally, circumstantial evidence

must corroborate the testimony.

APPENDIX F: HEARSAY

District attorneys might have difficulty proving some elements of complicity without a reasonable

approach to allowing reliable hearsay statements. Expounding upon the party-opponent admissions test

clarified in Boren v. Sable and found under Federal Rules of Evidence 801(d)(2)(D), the general practice

litigator Edward X. Clinton, Jr. provides a reliable framework for allowing statements made by an

accomplice against a principal:

“To prove that a statement is admissible a party must make a three-part showing. The offering party must demonstrate (1) the existence of an employment or agency relationship ‘independent of the declarant's statement offered as evidence;’ (2) that the statement was ‘made during the existence of the declarant's agency or employment’ and (3) that the statement concerns ‘a matter within the scope of declarant's employment’ or agency relationship.”‡

While this test seems to have been devised to analyze hearsay statements made by an employee, it can also

be applied to the principal-accomplice context. This hearsay exception will assist the district attorney.

‡ Edward X. Clinton Jr., The Business Law Blog available at http://clintonlawfirm.blogspot.com/2010/11/article-admissibility-of-hearsay.html (last visited March 21, 2014) citing Boren v. Sable, 887 F.2d 1032, 1038 (10th Cir. 1989) 

APPENDIX G: Escape & Self-Defense

What if the felony does not go as planned?

If during the attempted commission of a felony the plan does not go according to the original design

and somebody is killed, the principal and accomplices can be held liable for 2nd degree felony murder under a

should-have-known standard. For such liability to adheres to the actor, at the time of planning a substantial

risk of failure existed and death was a predictable byproduct of that failure.

The principal can be held liable for all crimes directly related to him through his plan if the criminal

purpose maintains a level of continuance, i.e., continuity of purpose, with the original plan. If a group finds

unexpected circumstances, as long as the group maintains reasonable (natural and probable‡) actions within

the scope of the plan, the principal can be liable for the group’s actions even without an opportunity to

consult the principal. This predicament is unlikely as most groups will have two-way radios or cell phones to

consult the principal when such unexpected conditions present themselves.

If the circumstances change and the principal develops a new plan or refines the preexisting plan, he

is subject to the consequences of that plan. As he learns more information, he will refine his plan. Such

refinement can happen even during an attempted escape from the police. The analysis would be similar to the

frolic and detour example

(Frolic and Detour: Murder of Mr. Unlucky- Lester’s liability).

With an unplanned escape, the principal is liable for those consequences, if the actions are reasonably

within the scope of the plan because he should know such reasonable actions are likely to occur.

Accomplices are liable for what they believe is reasonably certain to happen.

Self-Defense

Many argue that resistance is foreseeable and, moreover, when deadly weapons are involved, there is

a substantial likelihood death will occur at the time of planning a felony, in many instances. If during the

commission of a felony, a would-be victim resists and is accidentally killed, the criminal must be punished

even when he also acts to defend himself incentivizing risk-taking and vigilante justice. The victim can claim

self-defense even if he was the aggressor stirring the altercation to a physical conflict. This thinking is

embodied in the current law.

Why should fortuity be on the side of the innocent? She maintains no such relationship. Self-defense

is self-defense and a felon’s status should not be automatically escalated to cold blooded killer. Those in

opposition to the viewpoint expressed here would say that the criminal assumed the risk that somebody

including himself might be killed. However, the law should not empower the would-be victim by giving a

‡ “A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes.” Justia, Natural and Probable Consequences (Only Non-Target Offense Charged) available at http://www.justia.com/criminal/docs/calcrim/400/403.html citing People v. Nguyen (1993) 21 Cal.App.4th 518, 531 [26 Cal.Rptr.2d 323 (last visited April 2, 2014). Santana v. Kuhlman, 232 F.Supp.2d 154 (2002)

carte blanche to commit murder in self-defense to him only and additionally punish felons for the actions of

the victim. Humans naturally protect themselves. We have no choice. It is innate and not voluntary. Self-

preservation demands such a result.

Resistance is not likely, especially when guns are involved; people will not physically retaliate in

self-defense because nobody wants to be hurt. Robbers bring guns because they know that they will most

likely find less resistance. Victims might be shot. Thus, there is no felony murder premised on mere

foreseeability. The principal and accomplices should not be held strictly liable for any death that occurs. The

deterrent effect of such liability is practically nonexistent.

Why should the shopkeeper or business owner not bear the risk of not being insured? Which

represents the greater cost: deprivation of property or of life? What is being incentivized with the current

felony murder laws?

ENDNOTES

* Andrew Daniel McGraw is a graduate of Santa Clara University School of Law. He resides in Rochester, New York.

[1] “Although the determination that a severe punishment is excessive may be grounded in a judgment that it is disproportionate to the crime, the more significant basis is that the punishment serves no penal purpose more effectively than a less severe punishment.” The International Justice Project Seminal Case Decisions, available at http://www.internationaljustice project.org/seminal.cfm (last visited February 14, 2014), citing Furman v. Georgia 408 U.S. 238, 280 (1972), citing Weems 217 U.S. 349, 381 (1910).

How can acts that have no forethought be deterred? Is the criminal justice system deterring carelessness invading the realm of civil courts? While there is overlap with the criminal realm, the nucleus of each remains separate. Contrast with Muslim law.

Cannot a less severe criminal punishment deter felonies as successfully? We are a social species. Thus, humans naturally do not want to kill other humans. “[Killing] does not come naturally; you have to be taught to kill…killing requires training because there is a built-in aversion to killing one’s own kind…Almost every species has this hardwired resistance to killing its own kind.” Lt. Col. Dave Grossman, Killology Research Group, Trained to Kill: Killing is Unnatural available at http://www.killology.com/art_trained_killing.htm (last visited on April 10, 2014).

The proposed changes to improve the doctrine of felony murder that are in this paper more effectively punish those that choose to kill.

[2] How will felony murder deter a group of felons from committing a crime when most do not know such laws exist?

[3] While best applied to traditionally enumerated felonies, the author understands that the ideas surrounding the agency-principal relationship and vicarious liability discussed in this paper can extend to a range of areas including applications in contractual misrepresentation, investment fraud, and criminal prosecution of corporate crime with Enron being an example. Additionally, the paper might have relevance in the prosecution of war crimes like Syrian President Bashar al-Assad’s use of sarin gas, an internationally outlawed chemical substance. Nicole Urban, European Journal of International Law: Talk!, Direct and Active Participation in Hostilities: The Unintended Consequences of the ICC’s decision in Lubanga, available at http://www.ejiltalk.org/direct-and-active-participation-in-hostilities-the-unintended-consequences-of-the-iccs-decision-in-lubanga/ (last visited on March 19, 2014).

[4] Strict liability crimes tend to have lesser penalties, e.g., traffic tickets, or are ills that society must prevent and laws surrounding the evils are well known, e.g., statutory rape and the protection of children.

[5] Are Apu and Lester guilty of the same crime? What type of offender is Lester if he did not have a weapon? Is he an accessory? While he was participative in the zone of felonious danger, he did not carry a pistol. Should Pat as the principal or Lester as an actor be rewarded if this choice was purposefully decided to lessen the dangerousness of the situation thus decreasing the likelihood of a violent response? Or, does him being armed decrease the likelihood of a violent response?

Lacy is a facilitator, although she might be able to argue she did not believe it probable that she was rendering aid towards a criminal pursuit. She might have been led to believe she was driving the group to the ATM.

Lacy and Lester did not merely facilitate the crime like Devin, but they did not perform as much as Pat or Apu. I ask these questions to assist the legislature of a state to determine the appropriate level of culpability.

If a state’s elected representatives enact these laws, it is not my doing. I only facilitated such a result. I do not know if any legislature will enact these laws.

[6] Defining a criminal’s status as an accomplice because he will be in a planned zone of felonious activity probably applies best to the traditionally enumerated felonies including arson, kidnapping, burglary, and rape.

[7] A requisite felony is necessary to commit the object felony, e.g., purchasing cocaine (requisite / necessary felony: reasonably certain) to sell cocaine (object felony: reasonably certain). Once an object felony has been accomplished, the crime becomes known as a predicate felony (sold cocaine). A felony that a principal should have known was likely to be committed is a tangential felony. In the Double Jeopardy section, Lester bringing a gun to purchase the cocaine is a tangential felony.

[8] The principal is in the best position to mitigate risk. He recruits the accomplices and chooses the group’s course of action. Therefore, hold him responsible for his accomplices. He is vicariously liable for both the crimes that are reasonably certain to occur and the crimes that he should have known were likely to occur. Punish him for all misdemeanors directly related to him as principal by employing the test of being reasonably certain to occur at time of planning to a reasonably prudent person in the circumstances of the principal.

On the other hand, felonies must be reasonably certain to the principal – an even higher standard. Is there a need for reasonably certain in circumstances of principal standard (more objective) verse reasonably certain to principal? Does this confuse the jury? In practice, are the two standards identical?

DAs might demand what a reasonably prudent person in the principal’s circumstances should have known standard for both misdemeanors and felonies. It will be easier to prove. However, consider which standard is best in relation to mistake of fact (See ATTEMPT: Liability of Accomplices- Mistake of Fact).

[9] Derivative crime: crime based on vicarious liability.

[10] Assume Lacy is an accomplice. What happens if she signs an affidavit saying that she knew death was likely to occur because her unborn infant told her in a dream? Suppose she told Pat about it while driving to the bank to discourage the robbery. Is this statement evidence that the principal or other accomplices knew death was reasonably certain to occur? Should have known death was likely to occur? Knowledge creates the certainty, but what is knowledge if it is based on a dream? Certainty based on a belief? It must be asked then if the belief is reasonable. Does a reasonable belief create reasonable certainty? Prevent this watering down of reasonable certainty standard by having the analysis centered on all accomplices or the principal, e.g.,

reasonably certain to all accomplices for 1st degree murder warranting the death penalty. Collectively, they knew someone would die and still proceeded.

What if Lacy were the only accomplice and she accidentally killed Steve at the scene of the crime? Was death reasonably certain to her based on her dream? Should she have known death was likely to occur? It might be reasonably certain to her, but under the objective should-have-known test, there is no reason she should have known death was likely to occur based on her dream.

[11] Why does the law currently not punish the principal more severely than the accomplices?

[12] What if Pat had a dream where his dead brother told him that nobody would get hurt? Is death reasonably certain to him? Would it be reasonably certain to a reasonable person in Pat’s circumstances? Consider this question in relation to discussion in ENDNOTE [8] concerning mistake of fact.

[13] It is not the criminal defense attorney’s task to prove that Pat should not have known death was likely to occur. It is the district attorney’s burden to prove that Pat should have known death was likely to occur beyond a reasonable doubt. To meet this burden, she must first demonstrate that death was likely to occur. Second, she must prove a reasonable person would have known death was likely.

[14] Reasons why defendant should have known death was likely include knowledge of accomplice-counterpart’s violent character, knowledge that accomplice-counterpart shot somebody before, and knowledge of heavy security and potential resistance at scene of robbery.

[15] To be considered active, the principal take action and do more than solely command in a zone of planned felonious activity. For example, a principal radioing an order with a two-way radio is not be enough. No room exists for contemporaneous viewing of crime to give orders accordingly. Even if he is present and renders the same orders, it is not enough. Him carrying a pistol and pointing is at victims is. It is the increasing of the likelihood that death will occur that is being deterred by punishing the active principal with how he planned the crimes and the natural byproducts of his plan.

Accomplice / Accessory Hypo: If Watchful Wally viewed the crew work through security cameras from the system that he hacked and later relayed helpful information, is he an accomplice? Is he in a zone of planned felonious activity? Is there any action by him that directly creates and adds to the dangerousness in the zone?

What about a sniper that is 100 yards away overseeing and protecting the accomplices in the zone?

[16] The zone of dangerous felonious activity is similar to the inherently dangerous limitation for current felony murder laws. The zone of felonious activity must be dangerous so that the principal and accomplices can be liable for the death.

The inherently dangerous limitation defines what constitutes a zone of felonious activity for felony murder purposes and who is an accomplice. What about crimes that are not dangerous (tax fraud)? How is who is an accomplice defined then? Those that commit the core actus reus of an object felony?

[17] All traditionally enumerated felonies committed necessarily represent some level of inherent risk to the general public and those involved. That is why they are enumerated felonies. Inherently dangerous should not be a factor explicitly listed to the jury to take into consideration. They might focus on this factor to the exclusion of others and thus the should-have-known standard is diluted.

All enumerated felonies are inherently dangerous! What particular facts of the case make it such that defendants should have known death was likely to occur. Inherently dangerous circumstances in the abstract

are not enough! The other factors of carelessness define recklessness and elevate the act from a risk to a substantial risk disregarded justifying culpability under felony murder.

[18] A sole actor in a crime (similar to an active principal) committing a felony can be liable for 1st degree felony murder if he should have known death would occur at the time of planning and he materially contributed to the death. Furthermore, the criminal is liable for 1st degree felony murder if death was reasonably certain at the time of planning.

[19] Has Steve ever returned from the drop-off between 11:00 a.m. and 1:00 p.m.? Does he have a habit of forgetting the keys? If so, it might be likely he will forget again. If not, there is no reason Apu should have known it was likely.

Having insider information like this is similar to casing a joint. If there is only one opportunity to case a joint because of fear of law enforcement and detection, there might be no reason to know Steve returning would happen.

[20] To be considered direct and active participation, the felon must commit one significant non-verbal act that extends beyond that which is needed to complete the underlying felony. If the act is necessary to commit the felony, then the action merges with the felony and cannot serve as the basis for felony murder. However, an action that furthers a felony can also materially contribute to the death, e.g., arson.

[21] The object felony defines where a zone of felonious activity is. Where will the object felony take place?

What if the group does not make it there because the police intervened? Consider in relation to police exception for 2nd degree felony murder. Who is considered an accomplice then? Are those that were planned to be in the zone of felonious activity an accomplice?

Suppose the police intervene before they reach the bank and chase the group. Pat wants to escape and tells Lacy to drive as fast as she can. The car becomes a zone of felonious activity and Lacy is an accomplice to the escape. There is a new plan now.

Are Pat and Apu accomplices? If they shoot out the window, yes. They actively participated if they shoot out the window to scare the police or to shoot the squad car’s tires to immobilize the unit.

Shooting a gun in the air (active participation) while another accomplice shoots at police might not be enough (See NOTES: What if the felony does not go according to plan? and TEST FOR FELONY MURDER: Exception to 2nd degree Felony Murder for police murder during escape).

To be direct, the act must have an immediate causal connection to the death. If both accomplices shoot at the police, a policeman is killed by one bullet, and it is not known which gun it was from, that is still enough to find that both accomplices directly and actively contributed to the homicidal act.

An example of participation that is not active is encouraging or commanding another to kill. As a matter of law, a verbal act is not a type of active participation that can incur vicarious liability under felony murder.

[22] Devin might have thought that Lester (individual) or that the group intended to use the guns to go shooting in the woods. Is this facilitation of a misdemeanor? Consider this question in relation to the second amendment. “The [NY] Penal Law does not recognize facilitation of a misdemeanor. Facilitation of a misdemeanor is thus no crime.” Matthew Lipmann, Contemporary Criminal Law: Cases, Concepts, and

Controversies, (Thousand Oaks, CA: Sage Publications, 2008) 46 available at http://www.sagepub.com/ lippmanstudy/

Selling Lester a gun knowing that he or another will use it in a robbery is a different scenario. If Devin sold them knowing that he will rob a bank, he would be an accessory to first degree robbery. Devin was not in the zone of felonious danger to be considered an accomplice even if he received a share of the profits equal to the accomplices. Most likely, he would be paid the fair market value of the pistols and would not receive any of the stolen funds.

[23] If Devin Dealer sold three guns, then he would be liable for three counts of unlawfully procuring firearms for the defendants. If Devin knew that Lester was going to commit a crime by himself, he can only be found guilty of two counts of procuring illegal firearms for him no matter how many he sold Lester as long as the guns were sold in one transaction. Lester only has two hands.

[24] NY PEN. LAW § 160.10(2): “A person is guilty of robbery in the second degree when he forcibly steals property and when: 2. In the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (b) Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.”

[25] From Lester’s standpoint: an active principal is a fellow accomplice.

[26] It is not known if she knowingly aided or if she knew it to be probable. She might have thought they were going to make a deposit. After she saw the duffel bags when they entered the car, she would be an accessory after the fact because she knows that they just robbed a bank. It is not known if she saw their pistols.

An aider cannot be both an accessory before and after the fact.

[27] Felony murder should not be employed when criminals plan to kill. The doctrine is used to analyze death incident to the commission of a felony. When criminals plan to kill, the analysis should be that of a state’s substantive murder laws. State substantive murder laws apply best.

The felony murder doctrine is not a catch-all for any death that occurs; the same is true if they say “If this triggering event or condition happens, then we will kill,” and death is not likely, e.g., if a security guard resists, we will shoot him. If the circumstances change (e.g. escape is necessary), there is a new plan.

However, in states where murder can be an object felony as a matter of law, death is always reasonably certain to occur, as a matter of law, unless there is a substantial risk that the death might not occur. Once the district attorney establishes that murder is an object felony, the burden lies with the defendant to explain that it was not reasonably certain to occur because a substantial risk impeded its occurrence. Later learning that a fellow offender was a police officer is not such a qualifying risk. Focus on the mind state at the time of planning.

[28] NY PEN. § 40.05: “In any prosecution for an offense, it is an affirmative defense that the defendant [the principal or accomplice] engaged in the proscribed conduct because he was induced or encouraged to do so by a public servant, or by a person acting in cooperation with a public servant, seeking to obtain evidence against him for purpose of criminal prosecution, and when the methods used to obtain such evidence were such as to create a substantial risk that the offense would be committed by a person not otherwise [specifically] disposed to commit it. Inducement or encouragement to commit an offense means active

inducement or encouragement. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.”

General predisposition: Even the most disciplined of humans succumb to sexual temptation.

[29] A lack of time to contemplate the plan decreases the strength of the district attorney’s argument that Apu should have known death was likely to occur or that it was reasonably certain to occur. Moreover, the defendants could argue that the lack of time means that there was no plan because the two did not understand the contours of what they were both agreeing to. A hasty decision increases the likelihood that there is no plan or that the contours of the plan are not well defined. There is less time to contemplate both the direct and likely consequences.

[30] It does not matter why Apu restrained Mr. Unlucky; this act is minimally a material contribution. If the district attorney must show that the act was direct and active participation, she must show that restraining Mr. Unlucky was not necessary to commit a separate planned felony.

[31] Materially contributed is a lower standard for causation than directly and actively contributed.

[32] Must the specific victim be identifiable? Is it enough for the district attorney to show that death was reasonably certain to occur? That the criminals should have known death was likely to occur?

[33] Fellow accomplices can be liable for an active principal’s crimes as long as those offenses were reasonably certain to occur during the planning phase.

[34] NY. PEN. Code §125.25: “A person is guilty of murder in the second degree when:

(3) Acting either alone or with one or more other persons, he commits or attempts to commit robbery… and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant, if there be any, causes the death of a person other than one of the participants; except that in any prosecution under this subdivision, in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant:

(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and

(b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons.”

[35] When a crime becomes attenuated from the community of purpose, there is no reason a principal should have known that it was likely to occur. In other words, it cannot be argued that the crime was “in furtherance” of the group’s criminal purpose. It is a frolic and detour.

[36] Sanford H. Kadish, Stephen J. Schulhofer, Carol S. Steiker, Criminal Law and its Processes (Aspen Publishers, 8th ed. 2007) page 566, citing United States of America v. Jackson, 560 F.2d 112, 116 (2d Circuit 1977)) (Mishler, Chief Judge), quoting United States v. Mandujano, 499 F.2d 370, 376 (5th Cir. 1974) “After canvassing the relevant authorities on what this court one month later called a ‘perplexing problem,’ United States v. Stallworth, 543 F.2d 1038, 1039 (2d Cir. 1976), Chief Judge Mishler applied the following two-tiered inquiry: First, the defendant must have been acting with the kind of culpability otherwise required for the commission of the crime which he is charged with attempting... Second, the defendant must have engaged in conduct which constitutes a substantial step toward commission of the crime. A substantial step must be conduct strongly corroborative of the firmness of the defendant's criminal intent.”

[37] An accomplice is only liable for the offenses and the attempted crimes of the group that are reasonably certain to occur.

[38] What act distinguishes attempted arson and burglary? Focus on the act for double jeopardy purposes. Intent is not visible and verifiable. Contrast with Indiana’s actual evidence test. Jane Magnus-Stinson, Double Jeopardy in Indiana available at http://www.in.gov/judiciary/center/files/jedu-lib-crim-double-jeopardy-presentation.pdf (last visited June 20, 2014).

An act cannot serve as the foundation for more than one crime.

Suppose a person enters the property of another with the intent to commit arson. He walks through the door. He is immediately arrested. What act distinguishes burglary from the attempted arson? Must not he commit one material act (dumping gas on the floor) to further the arson? Is his intent to commit arson enough to be liable for burglary and attempted arson?

[39] NY PEN. LAW § 40.10(3) reads: “In any prosecution pursuant to section 110.00 for an attempt to commit a crime, it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the defendants avoided the commission of the crime attempted by abandoning his criminal effort and, if mere abandonment was insufficient to accomplish such avoidance, by taking further and affirmative steps which prevented the commission thereof.”

For attempt, the element requiring the accomplice take further steps to prevent the commission thereof should be removed. This barrier removes an incentive for the accomplice to voluntarily terminate future efforts that assist in the completion of the crime. With one less member, the object crime is less likely to be committed. The burden would still be with the accomplice to prove that he renounced.

Once an accomplice is arrested, as a matter of law, he has renounced involvement.