What Withdrawal Still Accomplishes

What Withdrawal Still Accomplishes

The preceding sections closed the door on withdrawal as a defense to the conspiracy charge itself, so the question here is narrower: what does leaving buy a member who cannot undo the agreement already made? At common law the answer is partial relief. An effective withdrawal ends the member's responsibility for crimes the others commit after the exit, and it starts the statute of limitations running as to that member.¹ Neither effect erases the conspiracy, which is why neither should be confused with the Model Penal Code's renunciation defense, taken up later in this chapter.

Both effects follow from treating membership as the hinge of liability. After a defendant withdraws, he is no longer a member of the conspiracy and the later acts of the conspirators do not bind him, but he remains liable for the agreement he made and for the acts his co-conspirators took in pursuit of it before he left.² A member answers for the group's acts because each member joined a common plan and in effect authorized the others to carry it forward. Once he leaves, that authorization ends, so later crimes no longer rest on his agreement, while the agreement and the earlier acts belong to a period when he was a member and cannot be rewritten by a later change of mind. People v. Sconce states the same division: withdrawal after an overt act avoids liability for the target offense, meaning the crime the conspirators agreed to commit, and for later acts committed in pursuit of the common plan, but it leaves the conspiracy itself untouched.³ The law has a reason to honor the exit even though it will not erase the offense. A member who knows that leaving will at least stop his exposure from growing has a reason to leave, and each departure weakens the group, which is the rationale the Sconce court identified for letting withdrawal terminate liability even after an overt act.⁴

The standard illustration puts both sides of that line on one set of facts. Lisa has agreed with Mark and Jane to commit murder, burglary, and theft. If she tells both of them that she is out and leaves in time for them to abandon the plan, and they commit the three crimes anyway, she is not responsible for those later crimes, though she remains guilty of the conspiracy.⁵ If instead she simply does not appear and tells no one, she never communicated a withdrawal, so she remains liable for the target offenses as well as the conspiracy.⁶ The only fact that changed is whether her exit reached the others, and that fact decides whether her membership ended in law as well as in her own mind. Mark and Jane, left uninformed, had no chance to reconsider, and they went on relying on her as part of the group. Students lose this issue when they treat silent absence as an effective withdrawal.

What counts as reaching the others is the subject of a later subsection, but its core can be stated now. An effective exit requires an affirmative act that notifies the co-conspirators, and merely ceasing to take part in the conspiracy's activities is not enough.⁷ One leading federal formulation accepts notice that the member will no longer participate, or acts inconsistent with the conspiracy's objects, so long as they are communicated in a manner reasonably calculated to reach some of the co-conspirators, and it also asks for complete abandonment in good faith.⁸ The same membership logic reaches the law of evidence. A conspirator remains a member until he takes affirmative steps to withdraw, and once he does, later statements by his former co-conspirators are no longer admissible against him as coconspirator statements.⁹

The second effect works through a different mechanism. The statute of limitations is the deadline after which the government can no longer bring a charge, and a member's withdrawal starts that clock as to him.¹⁰ If the indictment is filed after the limitations period has run from the withdrawal, prosecution for his own participation is barred, and he cannot be held for what the others did in the period before the indictment, because his withdrawal ended his membership.¹¹ The reason is that the government must show membership during the limitations period, and withdrawal negates that element for the time that follows. Withdrawal therefore protects fully only when combined with the passage of time; standing alone, it is a partial defense.¹² In Smith v. United States the Supreme Court held that a defendant who withdraws outside the limitations period has a complete defense to prosecution, and that when Congress has not placed the burden on the government, withdrawal is an affirmative defense resting on the defendant.¹³

Because this relief is partial, it differs sharply from the complete defense in Model Penal Code § 5.03(6), which makes it an affirmative defense that the actor, after conspiring, thwarted the success of the conspiracy under circumstances manifesting a complete and voluntary renunciation of criminal purpose.¹⁴ The Code's defense demands that the actor defeat the plan and it erases the conspiracy, while the common-law effects demand an effective exit and leave the conspiracy standing. The three subsections that follow take the common-law effects in the order a problem presents them: what an effective withdrawal cuts off, what the member must do for the exit to count, and how the exit starts the limitations clock.

Cutting Off Later Liability

The first benefit of an effective withdrawal is protection against what the other members do next, and the reason for it begins with how a member comes to answer for someone else's crime. Under the Pinkerton rule, being part of a conspiracy is by itself enough to make a member guilty of the substantive crimes his fellow members commit in furtherance of it.¹⁶ Membership is therefore the link between the member and those crimes, and it rests on his continuing place in the common plan. An effective withdrawal ends the membership, so after the exit the later acts of the conspirators no longer bind him.¹⁷ With the link gone, nothing remains that could justify charging him with choices made by people he no longer joins.

What falls away is narrower than it first appears, because the member faces two different kinds of exposure. The conspiracy and the crime it aims at, called the target offense, are separate and distinct offenses, and an exit can reach one without reaching the other.¹⁸ After a withdrawal the member remains liable for his earlier agreement and for what his co-conspirators did in pursuit of the plan before he left, but not for what they do afterward.¹⁹ People v. Sconce draws the same line when it says that withdrawal after an overt act avoids liability only for the target offense and for later acts committed in pursuance of the common plan.²⁰ The dividing point is the moment the exit becomes effective, so one planned crime can be charged to the member if it came before that moment and not if it came after. Students lose this issue when they read relief from the later crimes as relief from the charge, since the conspiracy was already complete when he left and the exit leaves it standing.

The friend did nothing more than tell the burglar he was out, and that was enough. To cut off later crimes it suffices that the exit reaches the other members; the withdrawing member need not try to stop the plan or report it to the authorities.²¹ In a standard problem, Winken tells the other two members that he is no longer part of the team, and the substantive crime they later commit cannot be attributed to him, although he remains guilty of the conspiracy because the exit did not undo it.²² The threshold is low because the aim is only to end his link to the group: a clear notice gives the others a chance to reconsider and takes away their reason to count on him. Preventing the crime is a separate demand that appears only in the Model Penal Code's renunciation defense, and the next subsection takes up what the notice itself must look like.

The same cut applies to a person charged as an accomplice rather than as a conspirator, and State v. Peterson shows it on real facts. The state claimed that the defendant had caused her own house to be burned by an accomplice, August Anderson, and the court, assuming the state's evidence of accomplice status, held that she was not liable because one who has procured, counseled, or commanded a crime may withdraw before the act is done and avoid responsibility by communicating the withdrawal to the person who is to commit it.²³ She had worked through an intermediary to get Anderson to leave the premises before he set the fire, which the court treated as the most effective measures within her power to arrest the execution of the plan, and Anderson alone was therefore responsible for the fire.²⁴ The court also stressed that she was not charged with conspiracy, a separate offense from the crime that is its object, which is why its holding frees her from the fire and says nothing about an agreement already made.²⁵

The relief has a limit when the member did more than agree. A member who also gave material help, such as a weapon or a tool, can be liable for the later crime as an accomplice, which is a separate ground from conspiracy membership, and an exit that ends the membership does not by itself end the help. The analysis of the Lisa illustration makes the point by noting that she had obtained the murder weapon with the purpose of its being used in the crime, so she would be an accomplice of the target offenses as well.²⁶ Notice alone falls short here because encouragement and agreement operate only through the other members' decisions, and a clear notice lets them decide differently, while a weapon or tool works without any further decision by anyone. The departing member must therefore try to neutralize what he supplied, by retrieving or disabling it or by otherwise making a real effort to prevent the crime, and Peterson's emphasis on measures within the defendant's power points the same way.²⁷

The two versions differ in a single fact, which is whether anything the friend contributed was still operating after he left. That fact decides whether the exit cuts off all later liability or only the liability that rests on membership. In both versions the conspiracy charge is untouched. Because every one of these protections depends on the exit being effective, the next subsection turns to what a member must do to make it so.

Communicating the Withdrawal

The protections described above all depend on the exit being effective, so the next question is what the member must do to make it so. The requirement is an affirmative act that brings the fact of the withdrawal home to the other conspirators, made in time for them to abandon the plan and in a way that would inform a reasonable person that the member is out.²⁹ Each part of that sentence has its own job. The act must be affirmative because a member's participation, once shown, is presumed to continue until he proves that he effectively withdrew, and the defendant must point to an act of withdrawal that was communicated to the co-conspirators.³⁰ The burden sits with the defendant because the steps that disavow or defeat a conspiracy lie within his own knowledge, and the government would have great difficulty proving that no such steps were taken.³¹ The notice requirement exists because a conspiracy is a group undertaking in which each member relies on the others. A member who has privately decided to quit looks, to the others and to a court reconstructing events afterward, exactly like a member who is still in. A message that reaches the others gives them a fair chance to reconsider and leaves objective evidence that membership ended.

The first consequence is that absence and silence do not count. A conspirator who merely stops taking part in the conspiracy's activities has not withdrawn, because stopping is just as consistent with staying in the group, and courts look for communication to the co-conspirators and often for notification of the authorities as well.³² California states the same requirement as an affirmative and bona fide repudiation of the conspiracy that is communicated to the coconspirators.³³ The Lisa illustration from earlier shows the point from two angles. When Lisa simply failed to appear at the planned crime scene, she had not withdrawn, and she answered for the target offenses under the Pinkerton rule as well as for the conspiracy.³⁴ When she made a vain attempt to thwart the target offense but never told her co-conspirators of her firm intention to withdraw, the attempt was of no benefit to her, and she was again liable for the target offenses.³⁵ Trying to stop a crime therefore does not substitute for telling the others, because the common-law test asks what was communicated, and an uncommunicated effort shows only what the member did in private. Students lose this issue when they credit a private change of heart as though it were notice.

Courts agree on this theme and differ on the audience the message must reach and on how much more they demand. Three formulations recur, and the jurisdiction's own wording controls.

• The strictest audience rule requires that the notice be given to all of the other conspirators, and notice given to fewer than all is insufficient.³⁶
• A second line of cases accepts either a full disclosure to the authorities or a communication of the abandonment in a manner reasonably calculated to reach the co-conspirators, while other courts appear to treat communication to all co-conspirators as the only route.³⁷
• A leading federal formulation accepts notice that the member will no longer participate, or acts inconsistent with the conspiracy's objects, so long as they are communicated in a manner reasonably calculated to reach some of the co-conspirators, and it requires neither that the member persuade the others to quit nor that he expose the plan to the authorities.³⁸

Some courts layer stricter demands on top of these. One has required that the member also succeed in persuading the others to give up the conspiracy, a result arguably justified only by the unusual facts of that case, and another holds that resignation alone is insufficient and that even a total severing of ties fails if the member keeps doing acts in furtherance of the conspiracy or keeps receiving its benefits.³⁹ The Model Penal Code sets its own audience rule, under which the member must advise those with whom he conspired of his abandonment or inform law enforcement of the conspiracy and his participation, and a later section of this chapter takes that provision up in full.⁴⁰ Even the most lenient federal formulation still requires that the member completely abandon the conspiracy and do so in good faith.⁴¹

The federal formulation produces a recognizable set of questions. A casebook problem built on it describes a defendant, Spiegel, who instituted a computer program meant to improve inventory control, refused to meet a co-defendant's projections for inflating inventory, and was terminated for refusing to go along with more inflation.⁴² Whether any of those acts alone, or all of them together, amounts to withdrawal depends on three inquiries: whether the acts are inconsistent with the conspiracy's objects, whether they were communicated in a manner reasonably calculated to reach some of the co-conspirators, and whether the abandonment was complete and in good faith. The facts as given do not answer those questions, so the exercise is to see what each formulation would ask of them.

The timing element ties the notice to its purpose. The message must arrive early enough for the others to have a real opportunity to abandon the plan, and word that reaches them after the crime is done gives them no chance to reconsider.⁴³ State v. Peterson shows adequate communication on the favorable side. The defendant there was charged as an accomplice to an arson rather than as a conspirator, and she sent word through an intermediary asking the person who was to set the fire to leave the premises. The court held that she withdrew in ample time and made the fact known in an unmistakable manner, so the person who set the fire was solely responsible for it.⁴⁴ Delivery through an intermediary therefore suffices when the message is clear and reaches the person who is to act. The authorities supply the other recognized audience. One standard statement lets a member avoid liability for later substantive crimes by notifying each co-conspirator or, alternatively, by notifying the police before the crime.⁴⁵ In the evidence setting, a conspirator who reveals the details of the plot to a prosecutor has likewise taken an affirmative step that signals withdrawal.⁴⁶

Step 3 is where the formulations part company, while steps 2 and 4 apply under every one of them. If a problem does not say which formulation governs, state the most widely used rule, which is notice to all of the other conspirators in time for them to abandon the plan, and then note that some jurisdictions accept a narrower audience or a report to the authorities.⁴⁷

Starting the Limitations Clock

An effective withdrawal has a second partial effect, and it operates through the passage of time. A statute of limitations is a deadline after which the government can no longer prosecute an offense. For conspiracy, the deadline is counted from the end of the defendant's participation, because conspiracy is treated as a continuing offense that goes on for as long as a member stays in the agreement. While the member remains in, the offense is still being committed as to him, and no clock runs in his favor. Withdrawal fixes the date on which his participation ended, and that date becomes the starting point of the limitations period as to him.⁴⁹

The mechanics appear in United States v. Read, where the Seventh Circuit described what withdrawal does to a member's position. After he withdraws he is no longer a member, so the later acts of the conspirators do not bind him, but he stays liable for his earlier agreement and for what his co-conspirators did before he left.⁵⁰ Because the clock starts at withdrawal, an indictment filed more than five years afterward falls outside the limitations period. Prosecution for his own participation is then barred, and he cannot be held for the acts or declarations of the others within the five years before the indictment, since his exit ended his membership during that time.⁵¹ The five-year period is the one used in that discussion, and the principle runs the same way with whatever period the governing statute sets. One defendant in the Read litigation did argue that he had withdrawn more than five years before the indictment was filed.⁵²

This interaction explains why limitations, and not withdrawal by itself, supplies the complete defense. The traditional rule treats the crime as complete with the agreement, so no later action can exonerate the conspirator of that offense.⁵³ Withdrawal therefore changes only the date on which the member's participation ended, and it does not relate back to the formation of the agreement.⁵⁴ What it does accomplish is to negate the element of membership during the limitations period, which is why the Read court described withdrawal as becoming a complete defense only when coupled with the statute of limitations.⁵⁵ California states the same combination in its own terms: withdrawal is a complete defense to conspiracy only if accomplished before an overt act, or when asserted together with the running of the statute of limitations.⁵⁶

The Supreme Court settled the combined effect in Smith v. United States, holding that a defendant who withdraws outside the relevant statute-of-limitations period has a complete defense to prosecution.⁵⁷ Smith also allocated the burden. Unless the statute assigns it to the government, withdrawal is an affirmative defense that the defendant must prove, and that remains true when it is paired with a limitations defense, without any due process violation.⁵⁸ The allocation fits the facts, because withdrawal requires affirmative steps by the defendant to disavow or defeat the conspiracy's purpose, and the government would find it nearly impossible to prove that no such steps were taken.⁵⁹

The two versions differ in one fact, the date of the indictment measured from the withdrawal. That variable also shows why the previous subsection matters here. The clock starts only with an effective withdrawal, so a member who merely drifts away, or who changes his mind in private, fixes no starting date and remains a member for limitations purposes. A member who cannot prove when and how he gave notice likewise cannot prove when the period began. On an exam, students lose this issue by answering a conspiracy charge with withdrawal alone as though it were a defense, when before the period runs it limits only the liability for what the others do afterward.

The Model Penal Code ties limitations to conspiracy in a related way when a whole group simply goes quiet. A conspiracy is generally treated as abandoned when none of the conspirators is acting to further its objectives, and if that inactivity lasts as long as the limitations period, prosecution is barred; a later section takes up that rule.⁶⁰