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CRM 1500-1999

1607. Dangerous Proximity Test

The dangerous proximity test was adopted by Judge Learned Hand in a case in which the defendant was arrested before passing classified government documents, which were in the defendant's purse, to her paramour. It is as follows:

(P)reparation is not attempt. But some preparations may amount to an attempt. It is a question of degree. If the preparation comes very near to the accomplishment of the act, the intent to complete it renders the crime so probable that the act will be a misdemeanor, although there is still a locus poenitentiae, in the need of a further exertion of the will to complete the crime.

United States v. Coplon, 185 F.2d 629, 633 (2d Cir. 1950) (quoting Holmes, J., in Commonwealth v. Peaslee, 177 Mass. 267, 272 (1901)), cert. denied., 342 U.S. 920 (1952)).

[cited in JM 9-65.700]