Comment by nkurz | Hacker News Reader

Comment by nkurz | Hacker News Reader

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While I have no idea what actually happened, and don't think that anything in the indictment should be accepted as fact, it's still an interesting situation if we assume that DPR knew that Alice and Bob (henceforth AB) were the same person. I don't know that DPR was acting stupidly.

Supposing AB had real information that would be harmful to DPR if released, it's in DPR's interest to prevent this release. One major risk is that even if he pays, he is still susceptible to future extortion. His approach sends a message to AB (true or not) that he is a casual killer, and that it would be an unwise risk to attempt this stunt a second time.

It also further implicates AB in DPR's crimes: in the same way that DPR will have great trouble explaining in court that he was not actually arranging a murder but deterring an extortionist, it would be unwise to try to argue in court that one accepted money to commit a murder, but is innocent because the murder was not actually performed due to a complicated backstory.

Also, the extended negotiation provides DPR more opportunity to discover more information about his adversary --- rather like the 'try to keep them on the line so we can trace the call' trope. It seems likely that if there is any substance to the accusation, that AB is a Silk Road seller and not a third party. Perhaps this dance helps DPR to gain more information so as to take future action against this seller? Or buys time so as to warn others that their buyer information is compromised?

If you accepted money to kill yourself, the onus would be on the prosecutor to prove a crime was committed. A reasonable defense would be that you feared that if you didn't pretend to carry out the murder, the buyer (who knew your identity) would find an actual hitman.

A reasonable defence would be not to say anything. There is no evidence that this person who was allegedly killed ever existed in the first place.

The Canadian Investigators say that nobody by that name ever existed and that there were no homicides or deaths which they can attach to this alleged hit.

You can't commit an impossible crime. I can't murder your sister if you don't have a sister.

It's highly likely that both the hitman and the hit were the same FBI informant entrapping DPR.

> I can't murder your sister if you don't have a sister.

But I believe you can conspire to murder my sister, even if I don't have a sister.

Perhaps. But against whom was a crime committed. If you pretend to have a sister and I order a hit on that figment of your imagination then have I committed a crime?

So whilst there was conspiracy it was not against a person and there was never a plan to harm an actual person. Despite there being the mens rea in the conspirators there's no crime, just moral turpitude.

It seems that if the conspiracy were against a person who never existed and were adjudged to be a crime that writers would be similarly guilty when they plan a storyline in which someone is purposefully killed. Of course there is a significant epistemological difference for the writer.

Fascinating.

Think about it like this:

In any given sting operation, the John gets arrested, bt there was never any prostitute. The arrest occurs on the basis that, if there were a prostitute, the John would participate in the exchange. Then, at that point, he's dragged before a judge or jury, and they don't really care about the crime, they just want this guy off the street based on the character assasination. The layman/plebian juror doesn't need to involve any sophisticated thought process, because his goal is to clock out of his "civic duty" by 5PM on the dot. The patrician judge is permitted the luxury of aloof detachment, and is a fallible human being. A person with a social life, biases and any other human weaknesses, despite whatever image or persona they may project into their social sphere of influence.

It doesn't really matter whether the sting is a bomb plot, drug deal, or a setup for hookers, Johns and online chat room predators. The maguffin is there to demonstrate intent, and prove that police are doing there job, the streets are safer, when this slob gets thrown in jail, and branded with a scarlet letter.

But the slob is real, and more often than not, simply being placed in the hot seat is enough for judge and jury to usually be swayed in favor of a conviction. It really doesn't take much for a person to get slapped with a jail sentence. Neither imaginary crimes nor genuine crimes weigh heavily on the mind of your typical juror. Or rather, to the juror, all crimes are essentially the same degree of fiction.

They are tales of intrigue presented to strangers who play the role of critic for a day, while attending the performance of fatal charades.

It's not really about intent, there has to be a real attempt to commit a crime for your standard sting situation. Drug stings will often go as far as waiting until after a crime has happened to do the arrest.

What are you so bitter about?

>In any given sting operation, the John gets arrested, bt there was never any prostitute. //

I see where you're coming from however it is "soliciting" which is the crime and the perp commits that crime against someone - they just happen not to be a prostitute. At least that's how it plays out in the media.

With the [attempted] assassination of an individual you can't have a sting because the main conspirator targets a specific individual [but you can have a sting on a conspiracy charge, so I see how it applies]. It's not like they find their target's not there and decide to just kill a random person. They are only ever concerned with killing a specific person. Now if that specific person doesn't exist then there can't be a killing.

With the bomb plot, drug deal, prostitution, child abuser the targets are generalised. The particular nature of the stooge isn't important to the potential perpetrator.

If I tell you there's a bank in my town, then we plan a heist, then it turns out that there's no bank. What crime have you committed?

[I'm not totally sold on this line I'm presenting incidentally - but thanks for the response anyhow.]

> But against whom was a crime committed.

As with any crime, it was committed against the State.

> If you pretend to have a sister and I order a hit on that figment of your imagination then have I committed a crime?

Yes.

> So whilst there was conspiracy it was not against a person

In the US (and, for that matter, most of the rest of the world) crimes don't have to be "against a person". England went through a few years in the late 1970s where a conspiracy to commit an impossible act was not a crime, but specifically amended the 1977 law which a 1978 court case found implied that effect to remove it in 1981; to my knowledge the impossibility of the prohibited agreed-to act has never been a bar to conspiracy convictions in the US.

> It seems that if the conspiracy were against a person who never existed and were adjudged to be a crime that writers would be similarly guilty when they plan a storyline in which someone is purposefully killed.

A writer planning a story line involves neither two or more people agreeing to commit an unlawful act nor one of taking a concrete action to put that agreement into effect, and so contains neither of the elements of the general crime of conspiracy, independently of the impossibility issue. So, no, they wouldn't be guilty of conspiracy, independently of the issue at hand.

> There is no evidence that this person who was allegedly killed ever existed in the first place.

Conspiracy to commit murder doesn't require an actual murder to be committed, so, no, this isn't really all that relevant to the charge.

But presumably it requires there to be an actual person who was conspired against.

Not in US law as far as I know, though there was a brief moment where that seems to have been the case in English law (between the Criminal Law Act of 1977 -- or at least, its application in DPP v. Nock, 1978 -- and the amendment to that act in the Criminal Attempts Act of 1981.)

An agreement between two or more people to commit an act which would be unlawful if the agreed-to end was realized and any one of those people taking even one concrete step toward putting the agreement into effect makes a conspiracy. (Except under the separate US federal narcotics conspiracy law, where, IIRC, the concrete act is not required.)

The question I guess is how you can take a concrete step, an actus reus, towards putting an agreement in to effect wherein the target of the action is entirely fictitious.

>an act which would be unlawful if the agreed-to end was realized //

If the person on whom the hit is called is fictional the agreed to end can't be realised. Even if it were in some way able to be realised [you pretend the person exists or don't know until the end of the act] the action itself wouldn't be unlawful except in and of itself. For example if you blew up a bridge to kill a person, but the person was made-up all along then you'd still be guilty of criminal damage and potentially of injury to bystanders and such but you wouldn't be guilty of murder. Not even attempted murder [IMV] as there was no person you tried to murder, you tried to murder an idea of a person.

Like I said in another post I see the moral deficiencies [evidenced by the mens rea (guilty mind)] in a person willing to be involved in such a conspiracy but it still appears to me to lack an actus reus which AFAICT is a cornerstone of criminal law based on the English tradition.

Your postscript on USA federal narcotics law is interesting - doesn't this mean that if you plan something with no intent that you'd be considered guilty. Would Vince Gilligan not then be guilty of drug crimes as he has planned many illegal activities they just apparently all lacked corresponding actions.

> If the person on whom the hit is called is fictional the agreed to end can't be realised.

Yes, that's the impossibility issue, which, as I've noted, is not generally in US law (and similar, but for a 3-4 year window ending in 1981, English law) relevant to whether the crime of conspiracy has been committed. The fact that it can't be realized is irrelevant to whether it would be a crime if it was realized.

> it still appears to me to lack an actus reus which AFAICT is a cornerstone of criminal law based on the English tradition.

The actus reus in conspiracy (both under the common law and the generally applicable modern English and American statutory provisions) is comprised of two things: an agreement among multiple people, and a concrete action directed toward putting the agreement into effect. Those are both acts, not mental states.

> Your postscript on USA federal narcotics law is interesting - doesn't this mean that if you plan something with no intent that you'd be considered guilty.

No, removing one of the required acts doesn't change the mens rea requirements, nor does it change the other required act; one person planning is not conspiracy (even under the federal narcotics provision that remove the second element.) Two or more people agreeing to some end whose realization would be another crime is the element that is required.

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