United States v. Irving
86 Fed. R. Serv. 1647, 2011 U.S. App. LEXIS 23720, 665 F.3d 1184 (2011)
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Rule of Law:
A defendant takes a 'substantial step' toward committing an offense, sufficient for an attempt conviction, when their actions go beyond mere preparation and are strongly corroborative of their criminal intent. Such actions can include actively soliciting a third party to commit the crime, consummating a contract with specific terms, and taking concrete facilitative acts like providing funds.
Facts:
- In 2006, after a prior drug investigation, Ronald Keith Irving announced at a party that he would pay $50,000 to anyone who would kill Lt. Brian Stark, the supervising officer of the investigation.
- On August 25, 2008, Irving sold 10.48 grams of crack cocaine to a confidential informant, Terrence Banks, during a controlled buy operation supervised by Lt. Stark.
- In February 2009, Irving was arrested for the 2008 drug sale, based partly on a sworn affidavit by Lt. Stark.
- While incarcerated together in February 2009, Irving contacted a fellow inmate, Durrell Collins, via a smuggled cell phone to move forward with the plan to kill Lt. Stark.
- Irving asked Collins if he was 'still cool on... Stark' and offered to pay for Collins's bail to 'get the job done.'
- Irving arranged for funds to be delivered to Collins's girlfriend, who then used the money to post Collins's bond and secure his release from jail.
- Once released, Collins, acting at the behest of investigators, contacted Deandre Washington, who agreed to act as the hitman for the agreed-upon price of $50,000, to be paid in two installments.
- In recorded phone calls, Irving encouraged Collins to proceed with the plan, stating 'Shit, come on!', and discussed the need to acquire a gun for the hit.
Procedural Posture:
- A Criminal Complaint was filed against Ronald Keith Irving in the United States District Court for the Eastern District of Oklahoma.
- Irving and co-defendant Deandre Washington were charged by indictment with one count of witness tampering. Irving was also charged with possession with intent to distribute crack cocaine.
- A joint jury trial was held in the district court.
- Irving's motion for a judgment of acquittal at the close of the government's case was denied.
- The jury found Irving guilty on all counts.
- The district court sentenced Irving to 360 months in prison.
- Irving (appellant) appealed his conviction to the U.S. Court of Appeals for the Tenth Circuit.
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Issue:
Does a defendant's conduct, including actively soliciting an accomplice, consummating a murder-for-hire contract with a definite price, and taking a concrete facilitative action like paying the accomplice's bail bond, constitute a 'substantial step' sufficient to support a conviction for attempted witness tampering under 18 U.S.C. § 1512(a)(1)(A)?
Opinions:
Majority - Holmes, Circuit Judge.
Yes. A defendant's conduct constitutes a 'substantial step' for an attempt conviction when it moves beyond mere preparation and is strongly corroborative of criminal intent. The court distinguished this case from precedents involving 'mere abstract talk,' finding Irving's actions were concrete and demonstrated a real effort to see the crime completed. The court identified three key aspects of Irving's conduct that, viewed in the aggregate, constituted a substantial step: (1) his active solicitation of Collins to implement the plan to kill Lt. Stark; (2) his actual consummation of a murder-for-hire contract with a definite price and payment structure; and (3) his concrete actions to facilitate the crime, specifically arranging and paying for Collins to be bonded out of jail. These actions were not mere preparation but were strongly corroborative of his intent to have Lt. Stark killed to prevent his testimony.
Concurring - Hartz, Circuit Judge,
The author joins the majority opinion but writes separately to criticize the use of the 'intrinsic/extrinsic' dichotomy in analyzing the admissibility of uncharged misconduct under Federal Rule of Evidence 404(b). Judge Hartz argues that the distinction is vague, confusing, and serves no useful analytical purpose regarding admissibility. He contends that all such evidence should simply be analyzed under Rule 403 to determine if its probative value is substantially outweighed by the danger of unfair prejudice. The only helpful use for the 'intrinsic' label, he suggests, is in determining whether the government was required to provide the defendant with pretrial notice of its intent to use the evidence.
Analysis:
This decision clarifies the 'substantial step' requirement for attempt crimes, particularly in the context of murder-for-hire schemes. It establishes that a combination of solicitation, a finalized contract with specific terms, and facilitative acts like providing funds crosses the line from non-criminal preparation to a punishable criminal attempt. The ruling reinforces the modern focus of attempt law on the actor's demonstrated dangerousness and the actions already taken, rather than what remains to be done to complete the crime. This precedent provides a clearer framework for prosecutors in charging similar cases where the ultimate crime is thwarted before the final act.
