Whether the requirement of a 'substantial step' can be satisfied by conduct occurring after the alleged attempt has ended

QUESTIONS PRESENTED The Third Circuit issued two related holdings in this case that are contrary to decisions of this Court and the other circuits; the holdings constitute a dramatic expansion of the law of attempt and an extreme contraction of the defense of entrapment. The court held, first, that the requirement of a “substantial step”—an essential element for all attempt offenses—can be satisfied by conduct occurring after the alleged attempt has ended and need only “in some way relate to the conduct criminalized by the statute.” Second, the court held that Davis’s “predisposition” to commit the offense at issue was proven by his lawful conduct and that Davis’s repeated refusal to commit the offense could be disregarded on the basis of the court’s speculation that it “is not necessarily evidence of his non-predisposition . . . . [rJather it may be evidence of a misguided attempt to avoid incriminating himself.” This Court and the other circuits have long defined a “substantial step” as conduct “toward” the commission of a crime. That must be so because the substantial step is the actus reus—the overt act of the attempt—without which no attempt has occurred. Accordingly, by definition, a substantial step cannot be conduct after the alleged attempt offense has been committed. Nevertheless, while the other circuits are unanimous as to the correct definition of a substantial step, four circuits—the Second, Sixth, Eighth and Tenth—have also indicated the same confusion as the Third Circuit in cases involving the same criminal statute at issue here, 18 U.S.C. § 2422(b). As to entrapment, the circuits are extremely divided as to how “predisposition” should be analyzed, and they have adopted several markedly different approaches. No other circuit, however, has held that a defendant’s lawful conduct can establish his predisposition to commit a i crime, and that a defendant’s resistance to committing an offense may be disregarded as a possible effort to avoid incrimination. This Court has held precisely the opposite. The questions presented are: 1. Whether the requirement of a “substantial step” can be satisfied by conduct occurring after the alleged attempt has ended. 2. Whether a defendant’s predisposition to commit a crime may be shown by his lawful conduct, and his repeated resistance to committing the offense disregarded as a possible effort to avoid incrimination. ii