Withdrawal Under the MPC

Withdrawal Under the MPC

The Model Penal Code handles a member who wants out through two provisions that do different jobs. Section 5.03(6) is the renunciation defense covered above, a complete defense available only to a member who thwarts the success of the conspiracy under circumstances showing a complete and voluntary renunciation of the criminal purpose.¹ Section 5.03(7) asks a separate question, namely when a conspiracy ends, and it announces that it operates for purposes of § 1.06(4), the Code's provision on periods of limitation for bringing prosecutions.² Subsection (7) therefore supplies the Code's version of partial withdrawal: it fixes dates that matter for limitations and for a departing member's responsibility for later crimes, and it never acquits that member of a conspiracy already formed.³

The Code needs this provision because it treats conspiracy as a continuing course of conduct rather than a single moment.⁴ A limitations period can start only when the offense ends, and an offense that continues needs an ending that a court can identify and a prosecutor can prove. Section 5.03(7) gives two such endings, one for the whole conspiracy and one for a single member who leaves, and those are the two pieces taken up below.

Group Abandonment

Under § 5.03(7)(a), a conspiracy terminates in one of two ways: the crimes that are its object are committed, or the agreement that they be committed is abandoned by the defendant and by those with whom he conspired.⁵ The first ending is straightforward, since once the object crimes are done there is nothing left for the agreement to accomplish. The second ending depends on the conjunction that joins the defendant to everyone he conspired with. Abandonment counts only when every participant has given up the agreement, because a conspiracy is a shared undertaking and the danger it creates lasts as long as any participant remains committed to it. One member who quits leaves the others holding the agreement, so the conspiracy as a whole keeps running.

Abandonment is a state of mind shared across several people, which makes it hard to prove directly, so subsection (b) lets conduct stand in for it. Abandonment is presumed if neither the defendant nor anyone with whom he conspired does any overt act in pursuance of the conspiracy during the applicable period of limitation.⁶ The same idea appears in the usual description of abandonment: a conspiracy is generally considered abandoned when none of the conspirators is doing anything to further its objectives, and if that inactivity lasts as long as the limitations period, prosecution is barred.⁷ The presumption turns collective inactivity into a provable ending, so the defendant gets the benefit of the limitations period without having to prove what every conspirator privately thought.

The ending is fixed by what the conspirators do, and outside events do not fix it. In United States v. Jimenez Recio the police seized a truckload of drugs and used the drivers to set up a sting, and two men who later arrived to collect the drugs were prosecuted for conspiracy. The Ninth Circuit held that the conspiracy ended when the drugs were seized, so that the two men could not be convicted without proof that they joined earlier, and the Supreme Court unanimously rejected that rule of automatic termination.⁸ The reasoning was that where police have frustrated a conspiracy's object but conspirators, unaware of it, have neither abandoned nor withdrawn, the dangers special to conspiracy remain, and so does the agreement itself.⁹ That decision is federal common law rather than the Code, yet it fits the Code's text, which looks for abandonment by the conspirators and not for the failure of the plan.

The two versions differ in one fact, which is whether anyone acted during the period. The presumption looks at every member, so a single overt act by any conspirator in pursuance of the agreement defeats it for all of them, and a defendant's own inactivity is not enough. Students lose this issue when they treat a frustrated plan as an ended conspiracy, because the failure of the plan ends nothing unless the conspirators themselves abandon the agreement.¹⁰

Individual Withdrawal

Because group abandonment requires everyone, one member's exit leaves the conspiracy running, and § 5.03(7)(c) supplies the separate rule for that member. If an individual abandons the agreement, the conspiracy is terminated as to him only if and when he advises those with whom he conspired of his abandonment or informs the law enforcement authorities of the existence of the conspiracy and of his participation in it.¹² Two phrases carry the rule. The words only if exclude every exit that involves no notice, such as private resolve, drifting away, or silence. The words and when fix the effect at the moment notice is given, so the exit counts from that moment and does not reach back to the day the member first had doubts.

The Code ties the exit to notice because notice is visible and has an effect on the group. A private change of mind cannot be proved or disproved by anyone, which would leave a court unable to say when the limitations clock began for that member, and a member who stops quietly keeps the plan alive without warning anyone. Advising the co-conspirators gives them the information they need to drop the plan or to treat the member as out. Informing law enforcement gives the authorities the chance to act. Either way the member has done something datable, which is what a limitations rule requires.

The co-conspirator route lines up with the common-law rule taught earlier, under which a member withdraws by clearly indicating to all of the co-conspirators, in a manner that would inform a reasonable person, that the member is no longer associated with the conspiracy, and does so in time for them to abandon it.¹³ The Code keeps the idea that an exit must be communicated, and it adds the second route of informing law enforcement of both the conspiracy and the member's own part in it. Its timing rule is built into the phrase if and when, which dates the exit from the notice, so crimes committed before the notice remain the member's responsibility.

The Lisa illustration shows the rule operating. Lisa joins Mark and Jane in a plan whose objects are a murder, a burglary, and a theft, and she then advises both of them that she will have no further involvement in the criminal plan and leaves. Under the Code she has withdrawn, so she is not responsible for the crimes Mark and Jane commit afterward.¹⁴ Her exit is not renunciation, however, because she did not thwart the success of the conspiracy, so she may be convicted of the conspiracy even though the target offenses fall away.¹⁵

Now remove the notice. Lisa obtains the murder weapon with the purpose that it be used in the crime and then merely fails to appear at the planned scene, telling neither her co-conspirators nor the police anything. Subsection (c) is not satisfied, so the conspiracy is not terminated as to her, and she can be convicted of the substantive offenses as an accomplice, since she supplied the weapon for the plan.¹⁶ Her absence was a private act that gave Mark and Jane no reason to think she was out, which is why it ends nothing. The weapon explains why accomplice liability attaches in this version, and the absence of notice explains why nothing ended her participation.

If Prentiss's report also led the police to stop the robbery, the analysis would move back to § 5.03(6), where the questions become whether he thwarted the conspiracy and whether his renunciation was voluntary and complete. Subsection (7)(c) asks for none of those things. It requires only notice, and that is why it is a partial result: renunciation requires thwarting and relieves the member of liability for all prior involvement in the conspiracy, while withdrawal does not.¹⁷

Students lose this issue when they treat staying away from the planned crime as an exit, because subsection (c) counts only notice to the co-conspirators or to law enforcement.¹⁸ A member who quietly drifts off has done nothing visible, so the conspiracy is not terminated as to that member, and the later crimes of the others remain chargeable to him.

Group Abandonment

A conspiracy that has been formed must end at some point, and the Model Penal Code fixes when. Section 5.03(7) describes conspiracy as a continuing course of conduct, so the offense is treated as lasting for as long as the agreement is alive and not as a single moment of agreeing.²⁰ Under subsection (a) the course of conduct terminates in one of two ways: the crime or crimes that are its object are committed, or the agreement that they be committed is abandoned by the defendant and by those with whom he conspired.²¹ The first ending needs little explanation, because once the object crimes have been carried out the agreement has nothing left to accomplish. The second ending depends on the word "and" that joins the defendant to everyone he conspired with.

Abandonment counts only when every participant has given up the agreement, and the reason lies in what makes conspiracy dangerous. A conspiracy is a shared undertaking, and the danger it creates lasts as long as any participant remains committed to it. One member who quits leaves the others holding the plan, so the agreement is still in place and the conspiracy as a whole keeps running. What that single member can do to exit for himself is a separate question, taken up in the next section.

Abandonment is a state of mind spread across several people, and that makes it hard to prove directly. Subsection (b) therefore lets conduct stand in for it: abandonment is presumed if neither the defendant nor anyone with whom he conspired does any overt act in pursuance of the conspiracy during the applicable period of limitation.²² The usual description of abandonment says the same thing in general terms. A conspiracy is considered abandoned when none of the conspirators is doing anything to further its objectives, and if that inactivity lasts as long as the limitations period, prosecution is barred.²³ The presumption works because collective silence for that long is strong evidence that every participant dropped the plan. It also spares the defendant from proving what each co-conspirator privately thought, which would otherwise require testimony from people who may be unavailable or unwilling.

The two versions differ in one fact, which is whether anyone acted during the period. The presumption looks at every member, so a single overt act by any conspirator defeats it for all of them, and one defendant's own inactivity does not carry the presumption if a co-conspirator stayed busy.

The opposite pole is a conspiracy whose object has become impossible without the conspirators giving up. In United States v. Jimenez Recio the police stopped a truck carrying illegal drugs, seized the drugs, and, with the help of the drivers, set up a sting.²⁴ The drivers paged two other men, who arrived and drove away with the truck. When those two men were prosecuted for conspiracy, the Ninth Circuit held that their convictions could not stand without evidence that they had joined the conspiracy before the seizure. The Supreme Court unanimously rejected that rule of automatic termination as inconsistent with basic conspiracy law.²⁵

The Court's reasoning follows the same logic as the "and" in subsection (a). Conspiracy threatens the public beyond the threat of the substantive crime, because a combination in crime makes other crimes more likely and makes it less likely that its members will turn back.²⁶ Where police have frustrated the conspiracy's specific objective but conspirators who are unaware of that fact have neither abandoned nor withdrawn, those dangers remain, and so does the agreement itself, which is the essence of the offense.²⁷ The Court also observed that the Ninth Circuit's rule would threaten properly run sting operations, and that any abuse of stings is better addressed by the entrapment defense than by narrowing conspiracy doctrine.²⁸

Set the two poles side by side and the distinguishing fact is who did the stopping. In the rail-yard hypothetical the conspirators themselves went quiet, and their silence supports an inference that they abandoned the plan. In Jimenez Recio the plan failed because of outside events, and the two men who arrived were still committed to it. Students lose this issue when they treat a frustrated plan as an ended conspiracy, because the failure of the object ends nothing unless the conspirators themselves give up the agreement.

Individual Withdrawal

Because group abandonment requires every participant to give up the agreement, one member's change of heart leaves the conspiracy itself running, and the Model Penal Code supplies a separate rule for that member's own exit. Under § 5.03(7)(c), if an individual abandons the agreement, the conspiracy is terminated as to him only if and when he advises those with whom he conspired of his abandonment or informs the law enforcement authorities of the existence of the conspiracy and of his participation in it.³⁰ Two phrases carry the rule. The words "only if" exclude every exit that involves no notice, such as private resolve, drifting away, or silence, and the words "and when" fix the effect at the moment notice is given.³¹ The exit therefore counts from that moment and does not reach back to the day the member first had doubts.

The Code ties the exit to notice because notice is the one feature of a private change of mind that other people can observe. A member who quietly stops participating has done nothing anyone can prove or date, so a court could not say when the limitations clock began to run for that member, and the others would have no warning that the plan had lost a participant. Advising the co-conspirators gives them the information they need to drop the plan or to go on without him, and informing law enforcement gives the authorities a chance to intervene. Either route produces a datable act that changes the position of someone able to respond. The common-law test rests on the same logic, since a member withdraws by an affirmative act that brings the withdrawal home to the confederates, in a way that would inform a reasonable person, in time for them to abandon the conspiracy, and with notice that must reach all of them.³² The Code keeps the requirement of communication, adds the second route of informing the police about both the conspiracy and the member's own part in it, and leaves timing to the words "if and when."³³

Meeting the subsection produces two effects. The member's participation ends from the moment of notice, so crimes the others commit afterward are no longer his responsibility, while anything done before notice stays with him.³⁴ The same notice starts the statute of limitations running as to that member.³⁵ The police route carries its own condition: a report that describes the plan but conceals the reporter's own role does not inform the authorities of his participation, so it leaves subsection (c) unsatisfied.³⁶

The subsection gives only a partial result, and the reason becomes clear from what renunciation demands. In one illustration, Lisa joins two others in a plan to commit a murder, a burglary, and a theft, then advises both of them that she will have no further involvement and leaves. She has withdrawn under the Code and is not responsible for the later crimes, but she has not thwarted the success of the conspiracy, so she may still be convicted of the conspiracy itself.³⁷ Renunciation under § 5.03(6) is an affirmative defense that requires the actor, after conspiring, to have thwarted the success of the conspiracy under circumstances manifesting a complete and voluntary renunciation of criminal purpose.³⁸ Thwarting is required because the objective of a conspiracy will generally be pursued even after one member quits, so a defense that rewarded quitting alone would leave the group's plan intact.³⁹ A timely report to the police that fails to thwart the plan, because it came too late or the police failed, will not support renunciation, yet it still starts the limitations period for that defendant.⁴⁰ Notice and thwarting therefore do different work: notice dates the exit and cuts off later exposure, and thwarting is what can defeat the conspiracy charge.

Students lose this issue when they treat notice alone as a defense to the conspiracy charge, because subsection (c) cuts off later exposure and starts limitations but leaves the conspiracy conviction in place unless the member also thwarted the conspiracy.⁴¹