Scope of conspiratorial relationship

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).