Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Defendant-Appellant’s Petition for Rehearing or Rehearing En Banc.
Argument: The panel opinion broadens the definition of “substantial step,” contravening Supreme Court and Circuit precedent and raising constitutional concerns. A “substantial step” is conduct “toward” the commission of the object offense. Davis improperly broadens statutory attempt offenses, with constitutional implications. Requiring a substantial step “toward” the commission of the object offense strikes the right balance between protecting the public and avoiding overcriminalization. Davis’s redefinition of the actus reus for attempt has broad implications.