§705-525 Duration of conspiracy. For purposes of section 701-108, the following apply:
(1) Conspiracy is a continuing course of conduct which terminates when the crime or crimes which are its object are committed or the agreement that they be committed is abandoned by the defendant and by those with whom the defendant conspired.
(2) It is prima facie evidence that the agreement has been abandoned if neither the defendant nor anyone with whom the defendant conspired did any overt act in pursuance of the conspiracy during the applicable period of limitation.
(3) If an individual abandons the agreement, the conspiracy is terminated as to the individual only if and when the individual advises those with whom the individual conspired of the individual's abandonment or the individual informs the law-enforcement authorities of the existence of the conspiracy and of the individual's participation therein. [L 1972, c 9, pt of §1; gen ch 1993]
COMMENTARY ON §705-525
This section adopts the Model Penal Code's provisions defining the duration of a conspiracy for purposes of time limitations.
Subsection (1) is in accord with the generally accepted doctrine that the conspiracy terminates when the crime or crimes which are its objectives are committed or all the conspirators agree to abandon the conspiracy.
It should be pointed out that where abandonment is not an issue and termination rests on accomplishment of the criminal objective, subsidiary agreements of concealment must be distinguished from offenses requiring an extended period of time for commission and, therefore, also acts of concealment during that period of time. In the former cases it is held that the conspiracy terminates with the accomplishment of its primary objective and its duration is not extended by agreement and effort to conceal the venture from law-enforcement authorities. The latter cases hold that the conspiracy continues until its final objective is reached. Thus, a conspiracy to use undue influence to obtain "no prosecution" rulings from the Bureau of Internal Revenue has been held to terminate upon getting the rulings and is not extended by concealment activities thereafter, whereas a conspiracy to commit the offense of income tax evasion has been held to continue until the period of limitation on tax prosecutions runs, and acts of concealment are regarded as in furtherance of the conspiratorial objective.[1]
Subsection (2) provides that it is prima facie evidence that the agreement has been abandoned prior to the applicable period of limitation by all conspirators if none performs an overt act in pursuance of the conspiracy during period of limitation. This evidentiary rule is, of course, not conclusive and, in the absence of an overt act, other evidence of the vitality of the conspiracy during the period of limitation may be sufficient to prove that the agreement has not been abandoned.
Subsection (3) provides for abandonment of the conspiracy by an individual member and its termination as to the individual member. Abandonment of a conspiracy must be distinguished from renunciation under §705-530(3). The former starts the period of limitation running but does not otherwise affect liability. The latter constitutes an affirmative defense.
The Code's formulation requires that to abandon the conspiracy the individual member must take steps to remove the encouragement which the individual member's prior allegiance had given the individual member's co-conspirators.
As a general matter, the policy behind statutes of limitation dictates that they should begin to run when an individual's criminal conduct ends. If the crime is conspiracy, this conduct theoretically ends when he ceases to agree in the purpose that the conspiratorial objective be committed. Since, however, conspiracy involves the additional considerations that his conduct has incited and encouraged others in their criminal purposes, which they may continue to pursue, the law should require in addition some action to remove the incitement caused by his agreement, in order that the others may be dissuaded and commission of the crime be averted. It is submitted that the generally accepted requirement that he advise his coconspirators of his abandonment should suffice for this purpose. The Draft provides, in addition, the alternative method of informing and confessing to the law enforcement authorities, since this affords an even greater likelihood that commission of the crime will be prevented and may in some cases provide the conspirator with a safer or more practical means of abandoning the scheme.2
There was no previous Hawaii law dealing with the duration of a conspiracy.
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§705-525 Commentary:
1. Compare Grunewald v. United States, 353 U.S. 391 (1957), with Forman v. United States, 361 U.S. 416, rehearing denied, 362 U.S. 937 (1960).
2. M.P.C., Tentative Draft No. 10, comments at 155 (1960).