MPC Attempt & Attendant Circumstances question Forum

[lawnerd1]

Hypo: It's a federal crime to kill an FBI agent. D shoots at V intending to kill him, but misses.

1) If the federal statute says the knowing that V is an FBI agent, would D be liable for attempted murder or attempted murder of an FBI agent?

2) If the federal statute says that recklessness is all it takes in respect to V's identity as an FBI agent, which would D be liable for?

I'd say that D would only be liable for attempted murder under (1) but attempted murder of an FBI agent under (2).

Thoughts?

[$peppercorn]

Hypo: It's a federal crime to kill an FBI agent. D shoots at V intending to kill him, but misses.

1) If the federal statute says the knowing that V is an FBI agent, would D be liable for attempted murder or attempted murder of an FBI agent?

2) If the federal statute says that recklessness is all it takes in respect to V's identity as an FBI agent, which would D be liable for?

I'd say that D would only be liable for attempted murder under (1) but attempted murder of an FBI agent under (2).

Thoughts?

The facts you give dont give a lot of certainty to the frame of mind of the defendant. If the statute requires knowing that someone is an fbi agent and they do not know then they can probably only be guilty of attempted murder (not attempted murder of an FBI agent. We went over this as mistake of fact or mistake of legal circumstance that negates a mens rea for the crime. But just for kicks, I think these kinds of things dont require knowledge that the person is an officer.

For the second part, of the model penal code infers recklessness, as it does as the default if not mentioned, then there would have to be a conscious disregard that he is an FBI agent. There would have to be some evidence that he knew there was a risk that this person was in the FBI. If they cant show anything then hes not guilty of this crime but still is under regular attempted murder. Just show that he knew there was a possibility.

[lawnerd1]

The facts you give dont give a lot of certainty to the frame of mind of the defendant. If the statute requires knowing that someone is an fbi agent and they do not know then they can probably only be guilty of attempted murder (not attempted murder of an FBI agent. We went over this as mistake of fact or mistake of legal circumstance that negates a mens rea for the crime. But just for kicks, I think these kinds of things dont require knowledge that the person is an officer.

For the second part, of the model penal code infers recklessness, as it does as the default if not mentioned, then there would have to be a conscious disregard that he is an FBI agent. There would have to be some evidence that he knew there was a risk that this person was in the FBI. If they cant show anything then hes not guilty of this crime but still is under regular attempted murder. Just show that he knew there was a possibility.

I copied and pasted this question from somewhere:

A federal statute makes it a federal crime to kill an FBI agent. Case law demonstrates that for the completed crime, it is enough that the defendant was reckless or even negligent with respect to the victim’s identity. D tries to shoot V (an FBI agent) to death, but his shot misses; D recklessly disregarded the chance that V might be an FBI agent. Probably D may be found guilty of attempted killing of an FBI agent.

I see it as this:
We're in an MPC jurisdiction so mistake of fact is not a defense, but mistake of law kinda is (D can raise it but prosecutor has to prove there is a law that D thought he was breaking.)
I've been told to frame these types of impossibility questions as: "Would this be a crime if the attendant circumstances were as D believed them to be?" D believed he was killing someone. That someone just happened to be an FBI agent. Recklessness, like you said, would require a conscious disregard of a substantial risk.

There's no doubt it would be attempted murder. But if the threshold for being charged with attempted killing of an FBI agent seems almost counterintuitive to charge him for a crime requiring recklessness as to the identity of the victim without knowing he even thought about it. I guess it does need more facts. It made sense when I posted it and now I've confused myself.