u/WhatARotation

Consider the MPC’s substantial step test.

The original formulation says that a defendant must purposely engage in conduct that, under the circumstances as he believes them to be, constitutes a substantial step.

It later says that conduct is not a substantial step under the above formulation unless it is strongly corroborative of the defendant’s criminal purpose.

This creates some ambiguity as to what set of facts “strongly corroborative” is evaluated under.

A natural reading may say to evaluate it in the defendant’s belief-world, because then the second requirement is merely defining substantial step, which is then modified by the “circumstances as he believes them”

But that would make the strongly corroborative requirement basically meaningless, because you could get acts that do not strongly corroborate the purpose at all (like snapping your fingers or telling the truth) to be defined as substantial steps (if the defendant believes that snapping their fingers kills somebody or that the truth is actually a false statement).

So what is the best way to read the strongly corroborative language?

Suppose drug dealer D is busted, and their house is found to be purchased with the proceeds of their drugs. It is forfeited, appropriately.

Now suppose D serves their time, rebuilds their life, and buys a new house with clean money. The only reason they obtain this particular second house is because they were house shopping at a time when it was listed, and they were house shopping at that time because they lost their first house because they committed a drug offense.

The government now tries to forfeit the second house, using S 981’s language that the property was “obtained as a result of the commission of the offense giving rise to forfeiture” language, which courts have broadly interpreted as reaching anything that would not be acquired “but for” the commission of the offense https://assetforfeiturelaw.us/wp-content/uploads/2018/04/Fft101-ATF-General-Counsel.pdf?.

Would a court of law allow forfeiture of the second house under this set of facts?

Consider a teenager who asks their mother for a Christmas gift. The mother insists that the teenager make a list on eBay of things they WANT. The teenager protests, saying they only want one item (call it A). The mother insists that the teenager make a list so she can be surprised.

The teenager then puts items A, B, C, and D on the list. Items B, C, and D are all things they don’t really want, and were selected specifically because the teenager believes that the mother won’t pick them.

The crime of wire fraud is complete under a literal reading of Kousisis. The teenager has made a misrepresentation (the items they don’t really want) with the intent that the mother rely on it to enter a transaction (buying the gift the teenager wants) that will cost her money. Kousisis stipulates: “intentionally lying to induce a victim into a transaction that will cost her money or property [is a species of fraud].”

The police catch wind of the story, and, sensing an opportunity for financial gain, initiate a civil asset forfeiture action against the child’s gift (say a $1500 gaming PC). What is the most likely reaction by a court if the family challenges the forfeiture action?