cuted; or (ii) the second offense was not consummated when the first trial began; or (b) the federal prosecution was terminated by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed or vacated and which necessarily required a determination inconsistent with a fact or a legal proposition which must be established for conviction of the offense of which the defendant is subsequently prosecuted; unless the Attorney General of the United States certifies that the interests of the state would be unduly harmed if the state prosecution is barred and that the interests of the United States would not be impaired by state prosecution. Comment This section represents a novel attempt to have a federal standard apply where a state seeks to prosecute following a federal prosecution within the scope of double jeopardy. At present there is no uniform policy, some states imposing some kind of bar, others leaving it to the local prosecutor's discretion. This draft is similar to that proposed in § 706, which is applicable when the state prosecutes first; and the comment to that section is substantially relevant here. Note, however, that a consideration there federal supremacy-favoring discretionary power in the Attorney General to proceed notwithstanding a prior state acquittal does not apply here, so that an absolute bar of some dimension against a subsequent state prosecution is a reasonable alternative. § 708. When Former Prosecution Is Invalid or Fraudulently Procured. A former prosecution is not a bar within the meaning of sections 704, 705, 706 and 707 under any of the following circumstances: (a) it was before a court which lacked jurisdiction over the defendant or the offense; (b) it was for a lesser offense than could have been charged under the facts of the case, and the prosecution was procured by the defendant, without the knowledge of the appropriate prosecutor, for the purpose of avoiding prosecution for a greater offense and the possible consequences the eof; or (c) it resulted in a judgment of conviction which was held invalid in a subsequent proceeding on a writ of habeas corpus, coram nobis or similar process. Comment This section sets forth three circumstances under which the rules against successive prosecution in the preceding sections do not apply. Subsection (b) attempts to avoid the danger that a defendant may fraudulently procure his own prosecution for a lesser offense, e.g., pleading guilty to a minor offense before a lower judicial officer, so that double jeopardy would apply to prosecution for a greater offense, e.g., a felony within the concern of a district attorney. Part B. Specific Offenses Chapter 10. Offenses of General Applicability §1001. Criminal Attempt. (1) Offense. A person is guilty of criminal attempt if, acting with the kind of culpability otherwise required for commission of an offense, he intentionally engages in conduct constituting a substantial step toward commission of the offense. A substantial step is any conduct, whether act, omission, or possession, which is strongly corroborative of the firmness of the actor's intent to complete the commission of the offense. Factual or legal impossibility of committing the offense is not a defense if the offense could have been committed had the attendant circumstances been as the actor believed them to be. (2) Complicity. A person who engages in conduct intending to aid another to commit an offense is guilty of criminal attempt if the conduct would establish his complicity under section 401 were the offense committed by the other person, even if the other is not guilty of committing or attempting the offense, for example, because he has a defense of justification or entrapment. (3) Renunciation and Withdrawal. It is an affirmative defense to a prosecution under this section that, under circumstances manifesting a voluntary and complete renunciation of his culpable intent, the defendant avoided the commission of the offense attempted by abandoning his culpable effort and, if mere abandonment was insufficient to accomplish such avoidance, by taking further steps which prevented the commission thereof. A renunciation is not "voluntary and complete" if it is motivated in whole or in part by (a) a belief that a circumstance exists which increases the probability of detection or apprehension of the defendant or an accomplice or which makes more difficult the consummation of the offense, or (b) a decision to postpone the offense until another time or to substitute another victim or another but similar objective. (4) Grading. Criminal attempt is an offense of the same class as the offense attempted, except that (a) an attempt to commit a Class A felony shall be a Class B felony, and (b) whenever it is established by a preponderance of the evidence at sentencing that the conduct constituting the attempt did not come danger ously close to commission of the offense, an attempt to commit a Class B felony shall be a Class C felony and an attempt to commit a Class C felony shall be a Class A misdemeanor. (5) Jurisdiction. There is federal jurisdiction over an offense defined in this section as prescribed in section 203. Comment This section establishes a general provision on attempt which is applicable to every federal criminal offense. There has never been such a provision in federal criminal law. With such a provision there is no need for special statutes to prohibit conduct which merely amounts to an attempt to commit another crime. The section would establish standards as to the requisite intent and conduct and deal uniformly with such questions as impossibility, corroboration, renunciation, punishment and incapacity of the actor. Federal law is, at present, unclear as to when preparation ends and attempt begins. In addition to the provision with respect to a substantial step in subsection (1), a provision could be added listing kinds of conduct which would ordinarily constitute substantial steps, as in A.L.I. Model Penal Code § 5.01(2). Note that, as in many modern criminal law revisions, the defense of impossibility is precluded. Subsection (3) recognizes that renunciation tends to negate dangerousness, and that making it a defense encourages voluntary abandonment of a culpable purpose prior to the causing of any harm. The defense also serves to moderate the potentially broad scope of the offense resulting from extension of criminality to some behavior traditionally characterized as preparation. See similar provisions in §§ 401 (3), 1003 (4) and 1004 (5). Subsection (4) follows existing federal law in grading attempts at the same level as the completed offense, but makes the two exceptions stated. Exception (b) is a version of the dangerous proximity doctrine. The decision to lower the grade of an attempt is a sentencing decision reviewable on appeal, if against the defendant, under the proposed amendment of 28 U.S.C. § 1291, infra. In a few instances in the proposed Code, attempts are to be graded at the same level as the completed offense regardless of the proximity to completion. Such attempts are prohibited in the section defining the offense itself. Note that, under § 3206, a person cannot be sentenced consecutively for attempt and the completed offense. See comment to § 203, supra, for discussion of attempt jurisdiction. § 1002. Criminal Facilitation. (1) Offense. A person is guilty of criminal facilitation if he knowingly provides substantial assistance to a person intending to commit a crime which is, in fact, a felony, and that person, in |