Abandonment or withdrawal from conspiracy is a defense available to a conspirator to escape liability. In cases of conspiracy requiring an overt act for conviction, a defendant can escape from the liability if s/he proves that they have withdrawn from the conspiracy prior to the performance of an overt act[i]. Any withdrawal or abandonment taken subsequent to an overt act’s performance will not protect a defendant from liability[ii]. The defense of withdrawal or abandonment is not applicable in the case of a conspiracy that does not involve an overt act[iii].
To make the defense of withdrawal or abandonment, a defendant must satisfy the following conditions:
- a defendant must take some positive action to withdraw from conspiracy[iv];
- a defendant must make a timely communication of the withdrawal with the co-conspirators[v];
- a defendant must make the withdrawal prior to completion of conspiracy’s object[vi]; and
- a defendant must prove that there was a sufficient interval between the withdrawal or abandonment and commission of the conspiracy[vii].
When a defendant makes the defense of withdrawal or abandonment, s/he must prove the withdrawal or abandonment before the court[viii]. However, withdrawal or abandonment will not be fulfilled by the mere cessation of activities of the co-conspirators[ix]. A conspirator’s arrest or incarceration also will not constitute a withdrawal or abandonment[x].
But if a defendant, after withdrawal, stays in touch with the co-conspirators and takes part in the goals of the conspiracy, then the defense of withdrawal or abandonment will be nullified by the court.
[i] People v. Sconce, 228 Cal. App. 3d 693 (Cal. App. 2d Dist. 1991)
[ii] State v. Liljedahl, 327 N.W.2d 27 (Minn. 1982)
[iii] United States v. Therm-All, Inc., 373 F.3d 625 (5th Cir. Tex. 2003)
[iv] United States v. Swiss Valley Farms Co., 1995 U.S. Dist. LEXIS 21378 (C.D. Ill. Oct. 30, 1995)
[v] State v. Shriver, 741 S.W.2d 836 (Mo. Ct. App. 1987) and United States v. Fernandez Torres, 604 F. Supp. 2d 356, 360 (D.P.R. 2008)
[vi] Commonwealth v. Carlitz, 319 Pa. Super. 580 (Pa. Super. Ct. 1983)
[vii] Commonwealth v. Laurin, 269 Pa. Super. 368 (Pa. Super. Ct. 1979)
[viii] Jackson v. United States, 54 Fed. Appx. 594 (6th Cir. Tenn. 2001)
[ix] United States v. Juodakis, 834 F.2d 1099 (1st Cir. Mass. 1987)