§705-520 Criminal conspiracy. A person is guilty of criminal conspiracy if, with intent to promote or facilitate the commission of a crime:
(1) He agrees with one or more persons that they or one or more of them will engage in or solicit the conduct or will cause or solicit the result specified by the definition of the offense; and
(2) He or another person with whom he conspired commits an overt act in pursuance of the conspiracy. [L 1972, c 9, pt of §1]
COMMENTARY ON §705-520
The offense of criminal conspiracy provides for intervention by law-enforcement agencies into preparatory conduct prior to consummation of a substantive penal offense and it provides for dealing with "special dangers incident to group activity."[1] Despite the necessity of providing some basis for intervention into criminal preparation and combination, conspiracy offenses have been subject to criticism because they have been used as a vehicle for vague charges, wholesale joinder of defendants, and circumvention of the rules of evidence. Sections 705-520 through 525 attempt to rationalize the law of conspiracy and to eliminate, as much as possible, areas of potential abuse.
Conspiratorial objective. Section 705-520 provides that the conspiratorial objective must be the commission of a crime. Undesirable, but noncriminal, behavior, such as civil frauds, cannot be made the subject of the penal law through broad application of a conspiracy charge.[2] In those relatively few instances where activities are made criminal only when engaged in by a group, and not if engaged in by an individual, e.g., anti-trust legislation, they should be dealt with independently in special conspiracy provisions which should be precise in defining the conduct proscribed.
Unilateral approach. The Code's formulation of the definition of criminal conspiracy, and its exclusion of certain defenses in §705-523, takes a unilateral rather than bilateral or multilateral approach to the offense. Unlike the prior definition based on the concurrence of "two or more persons," the Code focuses on a given defendant and states what conduct on the defendant's part is sufficient to establish the defendant's liability for criminal conspiracy. Group liability is not necessary. The actor's agreement does not require a "meeting of the minds" with one or more other persons; the Code does not require that at least two persons be guilty of a criminal conspiracy. The "agreement" on the part of a "co-conspirator" might be feigned; but this has no bearing on the defendant's individual liability. Implicit in the general formulation of §705-520, and made specific by §705-523, is the concept that the defendant's liability is in no way affected by the immunity, irresponsibility, or incapacity of the person with whom the defendant conspires. Furthermore, under the unilateral approach of §705-520, the failure to prosecute, or the unavailability for prosecution, or the prior acquittal of a co-conspirator would not affect the defendant's liability.
Definition of conspiracy. The greatest difficulty in formulating a definition of conspiracy, and other inchoate crimes, is relating its preparatory nature to the host of substantive offenses to which it might be applicable.
One difficulty common to the definition of all inchoate crimes is that the definition must be expressed in terms of preparation to commit another crime which is the object of the preparation; the definition must take account of both the policy of the inchoate crime and the varying elements, culpability requirements and policies of all substantive crimes.[3]
The Code requires that the culpability sufficient to establish liability for criminal conspiracy be intent to promote or facilitate the commission of a crime. The problem presents itself most acutely in cases where the defendant's "relationship to a criminal plan is essentially peripheral."[4] Thus, for example, one who rents or agrees to rent premises to another knowing that the premises will be used for an illegal activity (e.g., house of prostitution, narcotics den, or gambling casino) would not be guilty of conspiring with another to commit the crime unless it is proved that he intends to promote or facilitate the illegal operation. Mere knowledge of probable illegal use is not sufficient. To some extent, the defendant's ability or inability to control the situation takes on evidentiary significance with relation to the defendant's intent. For example, if the defendant is one of a number of malt dealers and the defendant sells the commodity to a person known to run an illegal still, the basis for finding an intent to promote or facilitate the operation may be considerably less than in the case where the defendant is the only available supplier. In the former case, the defendant's refusal to sell would probably not have any effect on the illegal operation. Moreover, the presence of other malt dealers would mean that the continued operation of the still would not necessarily mean more business for the defendant. In the latter case, the defendant's refusal to sell might prevent the operation of the illegal still, and the defendant's monopoly position provides an incentive for future sales.
Furthermore, regardless of the state of mind required by the definition of a substantive offense to establish culpability with respect to proscribed conduct or results, the Code requires intentional behavior for conspiracy. This can best be illustrated by borrowing two examples from the Model Penal Code commentary.
Thus, it would not be sufficient, as it is under the attempt draft, if the actor only believed that the result would be produced but did not consciously plan or desire to produce it. For example... if two persons plan to destroy a building by detonating a bomb, though they know and believe that there are inhabitants in the building who will be killed by the explosion, they are nevertheless guilty only of a conspiracy to destroy the building and not of a conspiracy to kill the inhabitants. While this result may seem unduly restrictive from the viewpoint of the completed crime, it is necessitated by the extremely preparatory behavior that may be involved in conspiracy. Had the crime been completed or had the preparation progressed even to the stage of an attempt, the result would be otherwise. As to the attempt, knowledge or belief that the inhabitants would be killed would suffice. As to the completed crime, the complicity draft covers the matter, despite its general requirement of a purpose to promote or facilitate the commission of the crime, by the special provision of Section 2.06(4).[5] This provides that where causing a particular result is an element of a crime, a person is an accomplice in the crime if he was an accomplice in the behavior that caused the result and shared the same purpose or knowledge with respect to the result that is required by the definition of the crime.
A fortiori, where recklessness or negligence suffices for the actor's culpability with respect to a result element of a substantive crime--where, for example, homicide through negligence is made criminal--there could not be a conspiracy to commit that crime. This should be distinguished, however, from a crime defined in terms of conduct that creates a risk of harm, such as reckless driving or driving above a certain speed limit. In this situation the conduct rather than any result it may produce is the element of the crime, and it would suffice for guilt of conspiracy that the actor's purpose is to promote or facilitate such conduct--for example, if he urged the driver of the car to go faster and faster.[6]
The Model Penal Code commentary leaves open the question of whether a defendant can be guilty of criminal conspiracy if the defendant is not aware of the existence of attendant circumstances specified by the definition of the substantive offense which is the object of the conspiracy.[7] This is of obvious importance in those crimes which do not require that the defendant act intentionally or knowingly with respect to attendant circumstances. It does not seem wise to leave this question to resolution by future interpretation.
It seems clear, and it is the position of the Code, that, because of the preparatory nature of conspiracy, intention to promote or facilitate the commission of the offense requires an awareness on the part of the conspirator that the circumstances exist.
Nature of the agreement. The agreement required by the Code is a consensus, "which need not, of course, be formal or, indeed, explicit in the sense that it is put into words."[8] Moreover, the consensus need not, as the discussion on the general unilateral approach of the Code would indicate, be characterized by sincerity on the part of the defendant's co-conspirator.
Overt act required. The Code requires that an overt act be done in pursuance to a conspiracy. Previous Hawaii law, following the common law,[9] specifically rejected the requirement of an overt act.[10] The Code imposes this additional requirement because the inchoate nature of the offense requires some indicia of a settled intention. The overt act need not be a substantial step as defined in §705-500 but may be any act in pursuance of the conspiratorial purpose.
Prior law. Prior Hawaii law was somewhat vague in defining conspiracy. The nature of the agreement required was apparently left to an intuitive understanding of the word "conspire."[11] The Code avoids some confusion by requiring that the conspirators "agree" upon penally proscribed conduct or result. No state of mind was specifically required, but the formulation of the previous conspiracy definition in effect required, as the Code does specifically, that the defendant act intentionally.[12]
The prior law made criminal a conspiracy to achieve a noncriminal objective. A conspiracy to maintain a suit known to be groundless is made criminal.[13] Unless malicious prosecution, traditionally a civil tort, is made a criminal offense, the Code eliminates it and other noncriminal wrongs, as a possible objective of a criminal conspiracy.
Hawaii was also in accord with the majority of jurisdictions in taking the bilateral or multilateral approach discussed above.14 The problem of a conspiracy prosecution failing for both conspirators simply because one is found innocent or immune to prosecution has apparently never reached the Supreme Court of Hawaii. However, the Code's unilateral approach, as described above, obviates entirely such potential problems.
Case Notes
Substantial direct and circumstantial evidence existed from which jury could have convicted defendant. 64 H. 65, 637 P.2d 407 (1981).
Jury may render defendant guilty of conspiracy and not guilty of the substantive offense. 69 H. 363, 742 P.2d 369 (1987).
Complaint sufficiently alleged all material elements of offense of criminal conspiracy and thus not fatally defective. 81 H. 198, 915 P.2d 672 (1996).
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§705-520 Commentary:
1. M.P.C., Tentative Draft No. 10, comments at 96 (1960).
2. Cf. 18 U.S.C. §371 (conspiracy "either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose") which "has grown through judicial interpretation to cover 'virtually any impairment of the Government's operating efficiency.'" M.P.C., Tentative Draft No. 10, comments at 103 (1960) quoting Goldstein, Conspiracy to Defraud the United States, 68 Yale L.J. 461n (1959).
3. M.P.C., Tentative Draft No. 10, comments at 106 (1960).
4. Id. at 107.
5. See §702-223 of this Code.
6. M.P.C., Tentative Draft No. 10, comments at 109-110 (1960).
7. Id. at 113.
8. Id. at 117.
9. Id. at 140.
10. H.R.S. §728-3.
11. H.R.S. §728-1.
12. H.R.S. §728-1.
13. Id. §728-1(c).
14. Id.