§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).