Federal Solicitation to Commit a Crime Laws, Penalties, and Defenses
Solicitation to commit a crime involves seeking out someone else to engage in a criminal act. Simply put, defendants could be charged with solicitation if they ask another person to commit a felony.
The primary factors of solicitation are the intent to have someone else commit a crime and an actual act committed in furtherance of convincing them to commit a crime.
To convict someone of solicitation, a prosecutor has to prove a defendant affirmatively intended to have another commit a crime.
Next, they will have to prove they encouraged or convinced the other person in some manner to commit a crime, such as a command or suggestion to complete the crime. Once these two elements occur, then “solicitation” has been completed.
Solicitation to commit a crime does not require that the solicited party take any action to commit the crime. In other words, simply asking them to commit a crime is sufficient to face criminal charges.
If you are facing federal solicitation charges, you probably have many questions. What kinds of penalties are you facing? What's the best strategy for defending yourself?
You might even be wondering what solicitation means. After all, it can be a confusing charge.
For instance, you can be charged with solicitation even if no crime ever actually occurred. Paradoxically, you might not be guilty of solicitation, even if a crime did occur.
So what exactly is solicitation, and what do you do if federal authorities have accused you? Our Los Angeles criminal defense lawyers will review below.
Just What is Solicitation?
Solicitation itself isn't a crime, but it is necessarily tied to another underlying crime, known as a “target offense.” That is, as noted, solicitation involves inducing or persuading someone else to commit a target offense.
For example, if you were to offer someone money to set fire to a competitor's business, that would constitute a solicitation of the target offense of arson.
If the person went through with the crime, they'd be charged with arson; you would be accused of solicitation.
This means that to be charged with federal solicitation, law enforcement must believe that you solicited someone to commit a federal target offense.
18 U.S.C. § 373 – Solicitation to Commit a Crime of Violence
Further, federal solicitation charges usually involve solicitations to commit acts of violence. Most violations are dealt with under 18 U.S. Code § 373, which explicitly concerns “solicitation to commit a crime of violence.”
Section 373 of Title 18 describes and penalizes the offense of solicitation to commit a federal crime of violence. This statute was enacted by Congress as part of the Comprehensive Crime Control Act of 1984 and stated:
- "any person who makes a serious effort to induce someone to commit a crime of violence is a dangerous person, and their act deserves criminal sanctions whether or not the crime of violence is committed."
Under the solicitation statute, the Government has to prove two primary elements.
First, the prosecutor has to establish that the defendant had the intent that someone else engage in conduct constituting a felony crime of violence that violates federal law. The intent has to be shown to be serious by strongly corroborative circumstances.
Next, the prosecutor must prove that the defendant commanded, induced, or otherwise endeavored to persuade someone to commit the felony crime.
18 U.S.C. § 2422 – Solicitation of a Minor
You should know that the government distinguishes between simple “solicitation” and “solicitation of a minor” for sexual purposes, defined under 18 U.S. Code § 2422.
If you engage in solicitation of a minor in another state for unlawful sexual activity, you could face prosecution by the government under this statute. If convicted, you could be facing up to 20 years in federal prison and mandatory registration as a sex offender.
Section 2422 of Title 18 describes and penalizes the offense of “coercion and enticement” as follows:
- “Anyone who knowingly persuades, induces, entices, or coerces someone to travel in interstate or foreign commerce, in the United States, to engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense.”
You do not have to have sex with a minor to be charged and convicted. Further, the person you contacted and solicited doesn't have to be a minor.
In other words, if you believed the victim was a minor and you attempted to arrange a meeting with them in another state, then it's sufficient for a conviction under 18 U.S. Code § 2422.
Elements of the Crime
Under 18 U.S.C. § 2422 and 2423, solicitation of a minor, you could be prosecuted under federal laws if you commit any of the following acts:
- Knowingly persuade, induce, or coerce a minor to travel between states or internationally to engage in prostitution or unlawful sexual activity;
- Use the internet or mail service or means of interstate or foreign commerce to persuade or coerce any minor to engage in any unlawful sexual activity;
- Knowingly transport minors between states or internationally with the intent for them to engage in unlawful sexual activity; or
- Travel between states or internationally to engage in any illegal sexual conduct with a minor;
Solicitation is an Inchoate Crime
Solicitation is what's known as an “inchoate crime.” Inchoate means developing or beginning. These crimes all involve the planning and preparation to commit another crime, a target offense.
The planning itself is illegal, and you can be charged and convicted even if the target offense is never actually committed.
For instance, you could go to prison for asking someone to kidnap your ex-wife, even if the person you asked never goes through with it or even agrees to do it.
Sting operations catch so many people each year because of this aspect of the law. It allows law enforcement officers to pose as criminals and arrest anyone soliciting their services.
Solicitation is not the only inchoate crime. Conspiracy is another example. As with solicitation, conspiracy involves planning a crime, typically with other people.
Another critical difference between the two crimes is that all participants are actively engaged in furthering the commission of the target offense under a conspiracy. Solicitation, in contrast, can involve nothing more than a request to commit a crime.
Finally, federal law also prohibits certain forms of “incitement,” a term sometimes used interchangeably with “solicitation.” So, for instance, 18 U.S.C. § 2383 forbids incitement of an insurrection or rebellion against the federal government.
What Are the Penalties?
The fact that solicitation is tied to other crimes also impacts the federal sentencing guidelines.
According to the law, those convicted of federal solicitation face exactly half the punishment they would face for committing the target offense itself.
In other words, if you were to solicit someone to commit voluntary manslaughter, which carries a maximum ten-year sentence, you face a maximum of five years in prison.
The exception to this rule is crimes that have life sentences, such as first-degree murder. In such cases, the maximum prison sentence is 20 years.
The law requires prosecutors to satisfy two conditions to obtain a guilty verdict in solicitation cases.
- First, they must prove intent;
- Second, they must prove you undertook some form of persuasion, some solicitation. These are both excellent lines upon which to attack a federal solicitation charge.
If, for example, you encouraged someone to bring drugs into the country because you were not aware those drugs were illegal, you could argue that you had no intent to solicit a target offense.
Conversely, if someone claims you encouraged them to commit murder, but they spoke to you over the internet, you might be able to argue that they weren't talking to you. In other words, you did not undertake the solicitation itself.
Perhaps we could make an argument of entrapment. This means you would not have committed the solicitation crime if it weren't for harassment or coercion by law enforcement agents.
In other words, you were coaxed into committing a crime you otherwise would not have committed.
Finally, and because it is an inchoate crime, you can offer an affirmative defense if you withdraw your request from the person before they commit the target offense.
The philosophy here is to encourage those who've solicited crimes to reconsider their actions. It is worth noting that this affirmative defense often requires informing law enforcement about the crime to ensure it doesn't happen.
Eisner Gorin LLP is based in Los Angeles County, and we serve people in California and throughout the United States who have been charged with a federal offense.
You can contact our law firm for an initial consultation by calling (310) 328-3776 or filling out our contact form.