§705-521  Scope of conspiratorial
relationship.  If a person guilty of criminal conspiracy, as defined in
section 705-520, knows that a person with whom he conspires to commit a crime
has conspired with another person or persons to commit the same crime, he is
guilty of conspiring to commit the crime with such other person or persons,
whether or not he knows their identity. [L 1972, c 9, pt of §1]



 



COMMENTARY ON §705-521



 



  This section is addressed to the problem of defining the
scope of the conspiratorial relationship.  Organized crime may involve a
network of activity of which the defendant's conduct is but a small part.  For
example, the narcotics traffic may involve smuggling, possession, and sale of
the narcotic.  Questions affecting multiple prosecutions, joint prosecution,
admissibility of evidence, and the statute of limitations have conventionally
turned on the scope of the conspiracy charged.



  The Code divorces procedural and evidentiary problems from
the definition or scope of criminal conspiracy.  Procedural problems are
handled separately in §705-524 (dealing with venue) and in the rules of court
and statutes relating to penal procedure.



  The definition of §705-520 in effect limits the scope of the
conspiracy to those crimes which the defendant intends to promote or
facilitate.  Section 705-521 limits the scope of the conspiracy "in term
of parties, to those with whom he agreed, except where the same crime that he
conspired to commit is, to his knowledge, also the object of a conspiracy between
one of his co-conspirators and another person or persons."[1]  In cases
involving a broad scope of criminal operations entailing numerous different
offenses, the focus is on whether the defendant knows that the defendant's
co-conspirator has conspired with another person to commit the same crime. 
Focusing separately on each criminal objective, it is possible to conclude that
different members of a criminal network are guilty of different conspiracies. 
Thus, in a narcotics operation, a smuggler, a distributor, and a retailer may
all be guilty of conspiring that the retailer possess the narcotics, whereas
the retailer may not be guilty of a conspiracy to have the smuggler engage in
smuggling.  The retailer may have no knowledge of or may be completely indifferent
to the source or character of the retailer's supply.



  Agreement under §§705-520 and 521 need not be explicit; it
can, of course, be inferred from mutual facilitation and purpose.  Section
705-521 specifically provides that in cases where there is no direct
correspondence or cooperation, the defendant may be guilty of conspiracy with
other persons, possibly unidentified, if the defendant knows that the
defendant's co-conspirator has conspired with them to commit the same offense.



  The inquiry which the Code requires is more complicated than
that allowed under current and past doctrine which, in some statements,[2] has
permitted a member of an illegal operation to be guilty of a conspiracy
involving all of the operation's criminal objectives no matter how remote from
the defendant's individual involvement.



We recognize
that the inquiry demanded by the Draft will often be more detailed and
sometimes will be more complicated than that called for under looser, current
doctrine.  We submit that any greater difficulty involved is justified by the
need for effective means of limiting a conspirator's criminal liability and
preventing the other abuses possible under looser approaches toward the scope
of a conspiracy.  Further, we submit that the focus upon each individual's
culpability with regard to each criminal objective should be more helpful to
juries than the broad formulations with which they are often charged today; and
that it accords more closely with traditional standards for testing criminal liability.[3]



  Previous Hawaii law made no reference to the scope of
conspiracy in terms of the parties involved.



 



__________



§705-521 Commentary:



 



1.  M.P.C., Tentative Draft No. 10, comments at 119 (1960).



 



2.  See United States v. Bruno, 105 F.2d 921 (2d Cir. 1939).



 



3.  M.P.C., Tentative Draft No. 10, comments at 126 (1960).