Talk:Attendant circumstance

A candidate for deletion?

It is a statement of the legally obvious that a prosecution must prove all of the elements specified in the definition of the offence. This page does not seem to refer to a defence in any sense that I recognise except and inso far as a judge, as a matter of law, could dismiss a case if the prosecution had failed to adduce evidence on all the consituent elements of the offence, and a jury could acquit in the ordinary course of events if they were not satisfied that the offence was made out. Equally, stating that "attendant circumstances" may be a factor in sentencing hardly makes it a defence. I am going to remove the page from the template to stimulate discussion. David91 03:47, 7 December 2005 (UTC)

Attendant circumstance is generally not a "defense"

David above has made allusion to the point that "attendant circumstance" is often not a "defense" -- but is a category of an "element" of a crime. The other categories of elements of a crime are the actus reus (or guilty conduct, which can be further broken down into the subcategories of commissions, or affirmative acts, and omissions, or failures to act) and the mens rea (or guilty mind). Famspear 16:00, 13 January 2006 (UTC)

With respect, I said it was not a defence at all in the sense that, say, duress is a defence. No lawyer, academic or practitioner, that I have ever worked with has identified this as a general defence. But, in the purely practical sense, if a defence lawyer adduces evidence which negates a constitutent element of the actus reus or mens rea, there will be an acquittal. That is the way the law works when the prosecution fails to discharge the burden of proof. David91 02:05, 14 January 2006 (UTC)

Dear David91: Yes, and I believe we're in agreement. My comments above were added to explain my edits to the main article on 13 January, and in support of your comments. Essentially, my purpose was to make clear that the term "attendant circumstance" is a way to describe one category of "elements" of an offense. I felt the main article benefited from the clarifying language on this point. Famspear 02:25, 14 January 2006 (UTC)

I thought we probably were in agreement having read your amendment to the page, but your use of the word "generally" above gave me cause for concern. My apologies for being pedantic. Only having dealt with the U.S. for contract negotiations and divorce, I find this criminal law distinction most curious since it would appear redundant. The actus reus will contain a number of elements, some express, some implied. Distinguishing between the conduct and the attendant circumstances does not seem to add anything. To take your example of frowning at a police officer. The "frowing" is the act or conduct and it must be aimed at a specific class of person which I take to be a statutory requirement of motive to show disrespect rather than confusion (a person with a different language to that spoken by the officer might not understand what is said, and frown in concentration when trying to translate it) or an intention not to co-operate when such co-operation is reasonably required (?). Is there a mens rea requirement that the defendant must actually know that the person is an officer to cover situations where either the officer is in plain clothes and has yet to formally identify him or herself, or wearing a confusingly similar uniform? Is there a requirement that this occur in a public place rather than, say, in the accused's home? All these questions that spring to mind are about the relationship between the actus reus and mens rea of the "components" of offence. Treating the different languages of the police officer and defendant as attendant circumstance for liability as against an element to be considered in sentencing seems strange. If you can point me to an on-line explanation of this, I would be most grateful. David91 05:01, 14 January 2006 (UTC)

Is United States v. Cabrales, 118 S. Ct. 1772 (1998), an example of what you mean? This was a criminal jurisdiction issue on venue involving a somewhat extraordinary (to my eyes) indictment. She was charged with money laundering, for transactions which began, continued, and were completed only in Florida:

Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity—

(A)(i) with the intent to promote the carrying on of specified unlawful activity; or

(ii) with intent to engage in conduct constituting a violation of section 7201 or 7206 of the Internal Revenue Code of 1986; or

(B) knowing that the transaction is designed in whole or in part—

(i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or

(ii) to avoid a transaction reporting requirement under State or Federal law,

shall be sentenced to a fine of not more than $500,000 or twice the value of the property involved in the transaction, whichever is greater, or imprisonment for not more than twenty years, or both.

The actus reus seems be the "financial transactions" but the indictment incorporates a reference to criminal activity in another state which creates the need to prove that the earlier activity was criminal as an attendant circumstance. More significantly, it invokes another state as a more relevant venue. What I do not know is whether this is an authority limited to jurisdictional issues, an authority on its own facts because of the way the indictment was drafted, or a general precedent because proof of a prior crime will always be necessary to prove the mens rea of knowledge. David91 04:33, 15 January 2006 (UTC)

Dear David91: I am a tax practitioner. I do not practice criminal law as such, though criminal tax law issues come up occasionally. The way I remember it from law school is roughly as follows:

1. Conduct (actus reus) (commission or omission, depending on the crime).

2. Attendant circumstance – facts and circumstances surrounding the event – not really part of the defendant’s physical act or omission.

3. Result (e.g., in a murder, the victim died).

In so-called Model Penal Code states in the USA, there are usually four possible levels of mens rea, and each statute defining a crime states (or should state) the level of mens rea required for the offense:

1. Intent (a conscious object or desire to engage in the conduct, awareness of the attendant circumstances, and conscious object or desire to cause the result). In some jurisdictions, the term “willfulness” may be used in lieu of “intent.”

2. Knowledge (awareness that one is engaging in the conduct, awareness of the attendant circumstances, awareness of the possibility of the occurrence of the result).

3. Recklessness (aware of, but consciously disregarded, a substantial and unjustifiable risk that the circumstance existed or, in the case of the result, that the result would occur).

4. Negligence (should have been aware of, but may not have been aware of, a substantial and unjustifiable risk that the circumstance existed or, in the case of the result, that the result would occur).

Notice that the mens rea element might or might not apply to the “attendant circumstances,” depending on the crime.

In the USA, tax evasion can be an example of the application of the concepts (note: the Federal tax crime statutes are not based on the “Model Penal Code”). Internal Revenue Code section 7201 provides:

Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 ($500,000 in the case of a corporation), or imprisoned not more than 5 years, or both, together with the costs of prosecution.

Under this statute and related case law, the prosecution must prove, beyond a reasonable doubt, each of the following three elements:

(1) the "mens rea" or "mental" element of willfulness -- the specific intent to violate an actually known legal duty;

(2) the "attendant circumstance" of the existence of a tax deficiency -- an unpaid tax liability; and

(3) the "actus reus" (i.e., guilty conduct) – in the case of this particular crime, an affirmative act (and not merely an omission or failure to act) in any manner constituting evasion or an attempt to evade either the (A) assessment of a tax or (B) the payment of a tax.

I argue that the attendant circumstance -- the existence of an unpaid tax – is not really part of the “conduct” of the offender – at least not for purposes of this criminal statute. The way I learned it in law school, “conduct” really refers narrowly to physical acts or failures to act. The following example of Mr. “Joe Baker” is illustrative.

Joe Baker is a nice guy, but he’s not very well educated, and he’s not very honest. Suppose that in July of 2005, Joe receives a large amount of cash from somewhere. Right now we don’t want to say where. Now, Joe’s tax year ends on December 31, 2005. His tax return is due on Monday, April 17, 2006. Like many Americans, he waits until about April 14th to even start thinking about preparing his return.

In a panic on April 14th, he begins thinking about taxes. If Joe Baker files a Federal income tax return, that is an affirmative act (conduct).

Suppose Joe prepares the return and reports all that year 2005 income on the return. Suppose, however, that he also knowingly takes a very large deduction for business expenses he neither incurred nor paid. Suppose that he is not legally entitled to the deduction, and that he is aware (he knows) that he is not legally entitled to the deduction -- but he takes the deduction on the return anyway, because he just does not want to show a tax liability on the return or pay a tax.

Here, the mens rea requirement is satisfied, as applied to Joe’s conduct. In knowingly preparing and filing a false return (a return he knows includes a false business deduction), he has “attempted” to evade the assessment of a tax, and he has a specific intent to break the law. He has acted willfully for purposes of section 7201.

Now, with respect to the attendant circumstance of the existence of an actual unpaid tax liability, Joe is aware (mens rea) – or at least he thinks he is aware – that there is an unpaid tax, a tax obligation he owes.

But suppose that Joe has made another mistake on the return – this one unintentional. Suppose that the income he fully reported on the return – the only income he had for the year – was, say, “life insurance proceeds received by reason of the death of the insured.” His mother had died, and he was the beneficiary of her life insurance policy. That’s how he received all his 2005 income. Under Internal Revenue Code section 101, such life insurance proceeds are not taxable. Such income is not even required to be shown on a Federal income tax return. But Joe was not aware of that.

Joe had an intent to evade tax – but his “knowledge” of the attendant circumstance (existence of a legally owed unpaid tax) was faulty.

Indeed, there really was no attendant circumstance. He did not really owe a tax, because the income he received was not really taxable. He did not need to falsely claim a deduction to reduce his taxable income, and his tax, to zero – because the tax already was zero. Under these facts, Joe has not violated section 7201 – even though he intended to do so. In fact, the zero amount for tax he showed on the return was the correct amount under the law.

(Joe has willfully filed a false return, however, and that is a tax crime in the USA, even if no tax was due – it’s separate from tax evasion.)

In this situation, I argue that the existence or non-existence of the attendant circumstance (non-existence of a tax liability) is separate from and has nothing to do with Joe’s conduct in filling out the forms, signing them, and mailing them. In this sense, I argue that there is no redundancy in talking about "conduct" as being separate from "attendant circumstance." The non-existence of the attendant circumstance -- an actual unpaid, legally owed tax -- was based only on the fact that the income he happened to receive simply was not taxable under the law in question. The nature of the non-existence of the attendant circumstance was fixed by (A) the applicable law, (B) the fact that his only income was a life insurance benefit, and (C) the fact that the tax year had closed (i.e., on December 31, 2005). All the facts making up the attendant circumstances were fixed long before April of 2006, when he began his conduct -- preparing, signing and filing the tax return. Yours, Famspear 05:33, 15 January 2006 (UTC) Note: I have re-edited the last sentence. Famspear 23:23, 30 January 2006 (UTC)

Fascinating. Thank you for taking the time to set all this out. In the English system, we have a simple approach to life: the actus reus is everything that is not mens rea. Thus, we would lump everything together as definitional components rather than disaggregating conduct from its attendant circumstances. Testing for prima facie liability pre-trial and for actual liability at trial becomes more straightforward. The words of the definition for the offence are set out and then we consider the available evidence to determine whether each component is likely to be or actually satisfied within the burden of proof. Thus, we would simply say that the prosecution must prove that a net sum of income tax was due from the taxpayer for the year of assessment, and that the defendant wilfully attempted to evade that liability: either tax was or was not owing; either the defendant made an attempt or did not. The detail of what he or she might have believed seems completely irrelevant because all that is required is a wilfull attempt. Whether it would have succeeded as intended is irrelevant (impossibility does not seem to be an issue). Seems to me that the U.S. is making something very simple unduly comlex for no apparent benefit. David91 06:38, 15 January 2006 (UTC)

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