Federal Attempt, Conspiracy, and Inchoate Crimes

When planning a crime is a crime itself under federal law

By John Kirby

Federal Criminal Defense Attorney • Arizona • California • Federal Courts Nationwide

2026-07-03

In federal criminal law, inchoate crimes such as attempt, conspiracy, and solicitation are offenses that involve an individual's intent to commit a crime before or without ever completing it. These charges can be just as serious—and sometimes even more so—than the underlying substantive offense they aim to facilitate. Understanding the elements of these charges is crucial for anyone facing federal prosecution.

Elements of Attempt

Federal law defines an attempt as a deliberate and substantial step taken toward committing a crime, reflecting specific intent to complete that crime. To secure a conviction on this charge, the prosecution must prove two main elements:

• Specific Intent: The defendant had a clear intention to commit the underlying offense.
• Substantial Step: The defendant took significant actions toward committing the crime beyond mere preparation.

In legal terms, if someone plans and purchases materials for a bank robbery but never enters the bank or takes any money, they might still be charged with attempted bank robbery based on their specific intent to rob the bank.

Abandonment as a Defense

A defendant can mount a defense of abandonment or renunciation in an attempt case. This involves proving that they voluntarily and completely abandoned their criminal plans before completing them, not due to circumstances outside their control but because they decided against committing the crime.

• Voluntary Renunciation: The defendant’s decision was based on a sincere change of heart or moral qualms, not external factors like police intervention.
• Efficacy in Preventing Completion: Their actions must have genuinely prevented the completion of the crime.

Solicitation Under Federal Law (18 USC 373)

A solicitation occurs when an individual intentionally urges, commands, induces, or otherwise attempts to convince another person to commit a federal felony. Unlike conspiracy, which requires an agreement between two or more people with the intent to further that illegal purpose, solicitation involves only one defendant seeking the involvement of others.

Attempt and Conspiracy in 18 USC 794

The specific statute 18 U.S.C. § 794 addresses attempts related to espionage or treason, but generally speaking, any attempt to commit a federal offense is punishable under the law regardless of the crime's specifics.

Guidelines and Sentencing Considerations (USSG §2X1.1)

The United States Sentencing Guidelines treat inchoate crimes like attempts, conspiracies, and solicitations quite similarly to their completed counterparts. According to §2X1.1, the base offense level for these charges is generally equal to that of the underlying substantive crime.

• Sentencing Levels: The guidelines provide a starting point for sentencing based on the nature and seriousness of the intended or agreed-upon offense.
• Motivations and Circumstances: Judges have discretion to adjust sentences based on specific facts, such as whether the defendant played an organizational role in the crime or showed a pattern of reckless disregard for the law.

Practical Implications and Common Defense Considerations

The prosecution's burden is high when it comes to proving attempt charges because they rely heavily on subjective intent. Therefore, common defense strategies include:

• Evidence of Lack of Specific Intent: Demonstrating that the defendant did not have a genuine intention to commit the crime.
• Lack of Substantial Step Evidence: Arguing that any actions taken were part of general preparation rather than steps toward completing the crime.

Federal prosecutors often leverage inchoate crimes as a means to secure convictions even when the intended substantive offense is uncompleted. However, understanding these charges and their defenses can significantly impact the outcome of your case or that of a loved one facing federal prosecution.

John Kirby

Cornell University Honors Graduate • Federal Criminal Defense Attorney

Licensed in Arizona, California, and federal courts nationwide. Decades of federal criminal defense experience. For direct representation, contact Kirby Criminal Law.