Applying Both Frameworks

Applying Both Frameworks

A backing-out problem packs two questions into one set of facts, and the law answers them with different rules. The first is whether the defendant is liable for the conspiracy itself, and the second is whether he is liable for crimes the other members commit after he leaves. The characteristic error is to treat a successful answer to the second as an answer to the first, since an effective exit usually ends responsibility for later crimes while leaving the conspiracy conviction in place. At common law the first question has a flat answer: withdrawal is no defense once the parties have formed the agreement and, where the jurisdiction requires it, some conspirator has committed an overt act.¹ The Model Penal Code relaxes that answer only for the actor who, after conspiring, thwarted the success of the conspiracy under circumstances manifesting a complete and voluntary renunciation of criminal purpose.²

The order follows from what each rule operates on. Steps two and four address the conspiracy offense, which is complete once the agreement is made and any required overt act occurs, so only a defense aimed at the offense itself can erase it, and the Code recognizes one only for the member who stops the plan. Steps three and five address membership. A member who gives effective notice stops being someone to whom the others' later acts are attributed, but the earlier agreement still happened, and a withdrawal does not relate back to the formation of the unlawful combination.⁹ Keeping those two layers apart is what lets a single set of facts produce a conviction for the conspiracy and an acquittal for the later crimes.

The Lisa illustrations hold one plan constant and change what Lisa does, which makes them a clean way to watch each step operate. In the first, Lisa has agreed with Mark and Jane to commit a murder, a burglary, and a theft, and she has obtained the murder weapon with the purpose that it be used, but when the time comes she merely fails to appear at the intended crime scene. Step two settles the common-law conspiracy question against her, because the agreement was already complete.¹⁰ Step three then fails, because staying away is not a communication to all of her co-conspirators that would inform a reasonable person and arrive in time for them to abandon the plan. She therefore answers under the Pinkerton rule, which makes a conspirator responsible for crimes the others commit in furtherance of the plan, for the target offenses as well.¹¹ The Code reaches the same place by its own route: she neither thwarted the plan nor advised her co-conspirators or the authorities, so renunciation and § 5.03(7)(c) are both unavailable, and her purposeful supply of the weapon makes her an accomplice to the target offenses.¹²

Change one fact and the result splits. In the second illustration Lisa tells both Mark and Jane, in time for them to abandon the plan, that she firmly intends to have no further involvement in it, and she leaves. At common law she is still guilty of conspiracy, since an exit cannot undo an offense already complete, but she is not responsible under the Pinkerton rule for the murder, burglary, and theft that Mark and Jane commit afterward.¹³ Under the Code she has withdrawn, because she advised all of her co-conspirators that she would have no further involvement and left them, so she is not responsible for crimes committed after that point. She did nothing to thwart the plan, however, so renunciation fails and the conspiracy conviction remains.¹⁴ The notice to everyone is the fact that moved the result on the later crimes, and no fact in this variation moved the result on the conspiracy charge. Students lose this issue when they treat a successful withdrawal as an escape from the conspiracy charge, because withdrawal reaches only what the others do afterward.¹⁵

A third variation removes the notice and adds a failed rescue. Lisa never tells her co-conspirators that she is withdrawing, but she tries to stop the target offense and does not succeed. Her vain effort earns her nothing at common law, because no exit was communicated, and she can be convicted of the conspiracy and of the target offenses.¹⁶ The Code gives the same answer, since she neither communicated an intention to withdraw nor thwarted the success of the conspiracy.¹⁷ A bank-robbery problem involving Badger, who had agreed to hand money over to gunmen, makes the same point: action that could reasonably be expected to thwart the robbery is not enough when the robbery goes forward, because even the jurisdictions that recognize a defense require that the conspiracy actually be thwarted.¹⁸ Thwarting is judged by what happened rather than by what the member tried.

The last Lisa variation is the only one in which she escapes the conspiracy charge. Timely police intervention prevents Mark and Jane from committing the target offenses. At common law Lisa still has no defense to the conspiracy, and it is unclear that she withdrew, because she did not communicate her exit to her co-conspirators in a timely manner. Mark and Jane may be liable for attempting the substantive offenses, and whether Lisa shares in that liability depends on whether she effectively withdrew under step three.¹⁹ Under the Code the same variation is analyzed as one in which Lisa has thwarted the target offenses in a manner reflecting a complete and voluntary renunciation, so she may use the renunciation defense, which cuts off liability both for the conspiracy and for any attempts.²⁰ Only in this variation did she supply what step four demands, a result that stopped the plan.

Decided and exam-style cases follow the same sequence. In People v. Sconce, Sconce offered Garcia $10,000 to kill Elie Estephan, Garcia agreed and offered another man, Dutton, $5,000 to do it, and the two drove to Estephan's house and settled on a bomb under his car, after which Sconce called the plan off about three weeks after the first conversation.²¹ The court held that his withdrawal was no defense to the completed conspiracy, because once an overt act has been committed no later action by a conspirator changes that, and withdrawal reaches only later acts of the members.²² The court did not decide whether he had communicated his exit to each co-conspirator, because the point could not affect the conspiracy charge. Under the Model Penal Code the answer on those facts would be the same, since Dutton's arrest on a parole violation, which Garcia did not know about when Sconce called it off, had nothing to do with anything Sconce did, so he did not thwart the conspiracy's success.²³

Courtney shows what happens when there is no exit to evaluate. She agreed with Anna to sell prescription drugs, but Anna did not follow through and excluded Courtney, so the sale could not be completed. A conspiracy charge looks to the agreement and not to whether the parties carried it out, so Courtney can still be charged.²⁴ The common law gives her no abandonment defense.²⁵ The Code's renunciation requires that the actor voluntarily give up the objective, whereas Anna shut Courtney out, and Courtney never withdrew, because she meant to complete the crime.²⁶ Exclusion by a partner differs from a member's own decision to leave, and only the decision can be tested under steps three through five. One more pair of results confirms the two-question split. Winken, who withdrew without preventing the conspiracy's aims, is guilty of the conspiracy even under the Code's more liberal modern view, yet once he let the other two know he was no longer part of the team, the substantive crimes they later commit may not be attributed to him.²⁷