Outline - Criminal

Mistake of Law

-A mistake of law must be honest and reasonable for general intent crimes -A mistake of law must merely be honest for specific intent crimes -In both cases, the mistake must negate the mens rea associated with the crime charged.

Accomplice Liability

-An accomplice is a person who aids in the commission or cover-up of a felony. -A person cannot be an accomplice to a misdemeanor crime.

Concurrence

-Concurrence means that there must be temporal overlap between the actus reus and mens rea, i.e., that they must coincide/occur at the same time. -There are generally two types of concurrence defenses: -A defendant claiming that he did not possess the requisite mental state to be convicted of the crime charged until after the prohibited result had already occurred -A defendant claiming that the mens rea and actus reus did not coincide for a snapshot crime

Strict Liability

-Crimes that do not require proof that the defendant possessed a certain mens rea are known as strict liability or absolute liability offenses. -There are two types of criminal statutes that continue to punish strict liability offenses: -The first type are statutory rape laws. -The second type are public-welfare offenses.

Battered Spouse Syndrome

-Defendants are allowed to present evidence on battered spouse syndrome and its effect on the elements of self-defense

The Act Requirement

-Defendants can't be convicted of status crimes like being an addict or a pedophile

Judicial Discretion in Sentencing Eighth Amendment

-Eighth Amendment: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." -A punishment can be found cruel and unusual under the Eight Amendment for one of two reasons: -First, if it makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering -Courts are split over whether death row inmates can involuntarily be given drugs just so that they are competent for their executions -Second, if it is grossly out of proportion to the severity of the crime First factor: Can the defendant can make a threshold showing of gross disproportionality? Three Subfactors: -The first sub-factor is the length of the prison term in real time -The second sub-factor is the sentence-triggering criminal conduct -The third sub-factor is the offender's criminal history Second factor: What are the sentences imposed on other criminals is the same jurisdiction? Third factor: What are the sentences imposed for commission of the same crime in other jurisdictions? -Courts consistently have upheld two strikes & three strikes laws despite Eighth Amendment challenges -In Kennedy v. Louisiana, the Supreme Court found that the death penalty is only warranted for murder and certain crimes against the state, such as treason

Actus Reus

-Every crime in this country contains an actus reus requirement, the requirement that the defendant (1) voluntarily engage in a prohibited act, or, in some cases, (2) fail to act in the face of a legal duty.

Felony Murder

-Felony murder is an example of implied malice -The felony murder rule only applies to foreseeably dangerous felonies: -(1) in a general sense, how dangerous (to human life) is the felony; and (2) what were the specific circumstances of the commission of the felony in the case at hand? -The defendant or someone acting in concert with the defendant be the actual cause/cause in fact of the victim's death. -Merger Rule: the felony murder rule does not apply when the defendant's felony was inherent in the act of murder itself.

General Intent Crimes

-General intent "is defined as 'the state of mind required for the commission of certain common law crimes not requiring specific intent' and it 'usually [but not always] takes the form of recklessness...or negligence.'" -If a crime is a general intent crime, a defendant can only prove a mistake or ignorance of fact defense if his mistake/ignorance was honest AND reasonable

Homicide

-Homicide consists of one human being killing another human being. -The mens rea for murder in South Carolina and most jurisdictions is malice aforethought, which encompasses four mental states:

The Knowing Mens Rea

-If a conduct crime contains a knowing mens rea, the prosecution must prove that the defendant was consciously aware that he was engaging in prohibited conduct. -If a crime is a continuing crime, any overlap between actus reus and mens rea will suffice until the act is completed -If a result crime contains a knowing mens rea, the prosecution must prove that the defendant was consciously aware that his conduct was practically certain to cause the prohibited result.

The Criminally Negligent Mens Rea

-If a conduct crime contains a negligent mens rea, the prosecution must prove that the defendant should have been but was not aware of a substantial and unjustifiable risk created by engaging in certain conduct. -If a result crime contains a criminally negligent mens rea, the prosecution must prove that the defendant should have been but was not aware of a substantial and unjustifiable risk that his conduct would cause the prohibited result.

The Purposeful/Intentional Mens Rea

-If a conduct crime contains a purposeful/intentional mens rea, the prosecution must prove that it was the defendant's goal/conscious objective that he engage in the prohibited conduct. -If a result crime contains a purposeful/intentional mens rea, the prosecution must prove that it was the defendant's goal/conscious objective that he also cause the prohibited result.

The Reckless Mens Rea

-If a conduct crime contains a reckless mens rea, the prosecution must prove that the defendant consciously disregarded a substantial and unjustifiable risk by engaging in certain conduct. -If a result crime contains a reckless mens rea, the prosecution must prove that the defendant consciously disregarded a substantial and unjustifiable risk that his conduct would cause the prohibited result.

Result Crimes vs. Conduct Crimes

-If a crime is a conduct crime, the State can prosecute the defendant based solely upon the defendant's act or failure to act, regardless of whether any prohibited result occurred. -If a crime is a result crime, the State can only prosecute a defendant if he has acted or failed to act and caused the prohibited result

The Insanity Defense

-If the defendant is able to prove that he is not guilty by reason of insanity (NGRI), he receives no criminal sentence. -Section 17-24-10 of the South Carolina Code: -(A) It is an affirmative defense to a prosecution for a crime that, at 397 the time of the commission of the act constituting the offense, the defendant, as a result of mental disease or defect, lacked the capacity to distinguish moral or legal right from moral or legal wrong or to recognize the particular act charged as morally or legally wrong. -(B) The defendant has the burden of proving the defense of insanity by a preponderance of the evidence. -(C) Evidence of a mental disease or defect that is manifested only by repeated criminal or other antisocial conduct is not sufficient to establish the defense of insanity.

Ignorance of Law

-Ignorance of the law is no defense unless a statute that places an obligation on the government to provide notice to the defendant.

Involuntary Intoxication

-Involuntary intoxication defense: a defendant unknowingly drinks alcohol or takes drugs to the point of intoxication.

The Constitutional Innocence Defense

-It is a violation of the Due Process Clause to interpret a crime as a strict liability crime if such an interpretation could lead to the prosecution of innocent and maybe even constitutionally protected behavior.

Mens Rea

-Jurors can, and usually must, infer that the defendant possessed the requisite mens rea from the surrounding circumstances, BUT -Jurors cannot be told that they may/shall presume or infer a mental state from the presence of attendant circumstances -When a crime is a result crime, the prosecution must prove both that the defendant's act and the prohibited result were accompanied by the prescribed mental state.

Jury Nullification

-Jurors have the power of jury nullification, i.e., the power to issue a verdict contrary to the weight of the evidence -Jurors have no right to be informed of this power

Legal Impossibility

-Legal impossibility occurs when the actions that the defendant performs or sets in motion, even if fully carried out as he or she desires, would not constitute a crime

Necessity

-The elements of the necessity defense in South Carolina are that: -(1) there was a present and imminent emergency arising without fault on the defendant's part; -(2) the emergency gave rise to well-grounded apprehension of death or serious bodily injury if the criminal act was not done; and -(3) there was no other reasonable alternative to avoid the threat of harm except to commit the criminal act. -The defendant bears the burden of proving the necessity defense by a preponderance of the evidence

Factual Impossibility vs. Inherent Impossibility

-The factual impossibility defense is a defense in which the defendant claims that he cannot be convicted of an attempt crime because it was impossible for him to commit the substantive offense. -As with the mistake of fact defense, however, factual impossibility is only a defense if it negates an element of the crime charged. -Inherent impossibility is a defense when there is no conceivable way that the defendant's intended crime could actually result in a completed crime.

Voluntary Intoxication

-The general rule in South Carolina is that "voluntary intoxication does not relieve an individual from criminal responsibility." -If a defendant claims voluntary intoxication as a defense, he is really raising an insanity defense and must prove that his habitual intoxication rendered him permanently unable to distinguish right from wrong.

Ex Post Facto Clauses

The Ex Post Facto Clauses prohibit the retroactive application of four types of criminal statutes: -First, every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action -Second, every law that aggravates a crime, or makes it greater than it was, when committed -Third, every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed -Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender

Transferred Intent

-A defendant's intent to cause some prohibited result (e.g., death) to Victim A can transfer to Victim B, allowing the defendant to be convicted of a crime based upon the result caused to Victim B. -The harm caused must be the same category as the harm intended for the defendant's intent to transfer from Victim A to Victim B. -Under South Carolina, transferred intent applies even if the defendant harms his intended victim

Proximate Causation

-A dependent intervening cause is foreseeable and insufficient to sever the causal chain -An independent intervening cause is unforeseeable and sufficient to sever the causal chain and absolve the defendant of liability for causing the prohibited result.

Willful Blindness/Deliberate Ignorance

-A jury can only find that a defendant acted with willful blindness if (1) the circumstances would have made a reasonable man suspicious of the legality of his actions; (2) the defendant could confirm or dispel his suspicion; and yet (3) the defendant deliberately avoided confirming or dispelling his suspicion

Actual Causation/Cause in Fact

-"But For" Causation: "What would have happened in an alternate universe in which the defendant did not commit his criminal act or omission?" -Substantial Factor: There multiple causes, each alone sufficient to bring about the harmful result, operate together to cause it. -A defendant is an actual cause of a prohibited result if he hastens or accelerates the result

Express Malice

-(1) Intent to kill -The prosecution can prove prior bad acts committed by the defendant against the victim, not to prove that the defendant is generally a violent person, but to prove the animus between the two and the defendant's specific motive to harm/kill the victim. -(2) Intent to inflict grievous bodily harm

Implied Malice - Extremely Reckless Indifference to the Value of Human Life (Depraved Heart Murder)

-(3) evidence that the defendant acted with extremely reckless indifference to the value of human life and caused the death of the victim -This mens rea contains both a subjective & an objective element: -(1) subjective element: that the defendant acted with extremely reckless indifference to the value of human life; and -(2) objective element: that it was highly probable that the defendant's act/omission would result in death. -Once the prosecution has proven this mens rea, the jury must still infer malice to convict the defendant.

Attempt

-A defendant can be convicted of an attempt crime if the prosecution proves two elements beyond a reasonable doubt: (1) specific intent to commit the crime (mens rea); and (2) an overt act in furtherance of the crime. -If a defendant is convicted of an attempt crime, he is subjected to the same penalty as a defendant who is convicted of the completed substantive offense. -Mere preparation does not constitute an overt act

Voluntary Manslaughter

-A defendant can be convicted of the lesser offense of voluntary manslaughter rather than murder if the prosecution can prove all of the elements of murder, but the defendant creates reasonable doubt that two additional elements existed at the time of the killing: -(1) sufficient legal provocation; and (2) heat of passion. -Sufficient legal provocation is such an act or event "as would naturally disturb the sway of reason, and render the mind of an ordinary person incapable of cool reflection, and produce what, according to human experience, may be called an uncontrollable impulse to do violence." -The heat of passion element focuses on (1) whether this particular defendant was actually provoked into losing his control; and (2) whether too much of a cooling off period occurred between the legal provocation and the act of killing such that the defendant had cooled off OR the ordinary person would have cooled off. -Courts have found that mutual quarrel can constitute sufficient legal provocation that will allow for a voluntary manslaughter instruction if the defendant did not have adequate time to cool off before killing the victim. -A victim's overt, threatening act toward the defendant can constitute sufficient legal provocation -While overt, threatening acts can support a jury instruction on voluntary manslaughter, mere words cannot. -While it is generally said that mere words are not enough to get a jury instruction on voluntary manslaughter, some courts have carved out an exception for so-called informational words. -In South Carolina, even informational words about a past act can never constitute sufficient legal provocation. -Adultery is an act that can constitute sufficient legal provocation. -The "[d]efendant's own actions, no matter how outrageous or violent, cannot legally provoke himself." -Another act that can serve as sufficient legal provocation is a false or unlawful arrest. -If a defendant is subjected to a lawful arrest, that lawful arrest cannot serve as sufficient legal provocation to support a jury instruction on voluntary manslaughter.

Capital Murder

-Pursuant to Section 16-3-20 of the South Carolina Code, there only three sentences that can be imposed on a defendant convicted of murder: (1) the death penalty; (2) life imprisonment; or (3) a mandatory minimum sentence of thirty years. -Mandatory death penalty statutes - statutes which require the judge or jury to impose a death sentence for certain crimes - are unconstitutional. -The death penalty can only be imposed after jurors balance aggravating and mitigating circumstances -The requirement that a jury decide whether to impose the death penalty is waivable -An indictment need not mention which aggravating circumstances the prosecution will seek to prove -The jury (or judge) must find that at least one aggravating circumstance applies to give the defendant the death penalty. -The prosecution must prove aggravating circumstances beyond a reasonable doubt -There is no per se bar to the admission of victim impact evidence, but the defendant can get his death sentence reversed if he can prove that such evidence was "so unduly prejudicial that it render[ed] the trial fundamentally unfair" under "the Due Process Clause of the Fourteenth Amendment...."

Rule of Lenity

-Rule of lenity: any ambiguities in criminal statutes are construed against the government and in favor of the criminal defendant

Inchoate Offenses Conspiracy

-Section 16-17-410: "Conspiracy" is defined as a combination between two or more persons for the purpose of accomplishing an unlawful object or lawful object by unlawful means. -(1) the actus reus of conspiracy is an agreement to accomplish an unlawful object or a lawful object by unlawful means; and (2) the mens rea of conspiracy is the conscious goal (intent) of accomplishing an unlawful object or a lawful object by unlawful means. -No overt act is required for defendants to be convicted of conspiracy -South Carolina applies the bilateral approach to conspiracy theory, pursuant to which there can only be conspiracy liability if there are at least two guilty minds ready, willing, and able to accomplish the unlawful object. -In the absence of direct evidence of an agreement, an agreement and thus conspiracy can be proven through circumstantial evidence. -South Carolina does not apply the merger doctrine to conspiracy liability -A co-conspirator is liable for all of the acts committed by co-conspirators during the course of and in furtherance of the conspiracy. -Pinkerton acknowledges a limitation on co-conspirator liability for crimes "which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement." -A chain conspiracy is a conspiracy in which there are several links in a criminal chain, with the ability of each later criminal actor to complete his task dependent upon the success of the prior criminal actors -There is automatically a community of interests in a chain conspiracy -A wheel conspiracy contains a hub at the center of the wheel and spokes emanating from the hub -With a wheel conspiracy, the prosecution must prove a community of interests (rim) as opposed to independent contractors

Guilty But Mentally Ill (GBMI)

-Section 17-24-20(A): A defendant is guilty but mentally ill if, at the time of the commission of the act constituting the offense, he had the capacity to distinguish right from wrong or to recognize his act as being wrong as defined in Section 17-24-10(A), but because of mental disease or defect he lacked sufficient capacity to conform his conduct to the requirements of the law. -While the defendant has the burden of proving mental illness, all that the defendant needs to get a GBMI jury instruction is some evidence of such an illness.

Inchoate Offenses Solicitation

-Solicitation requires proof of (1) an intentional mens rea; and (2) an actus reus of enticing, advising, inviting, ordering, or otherwise encouraging another person to commit a crime.

Diminished Capacity

-South Carolina has never had the diminished capacity defense.

Self-Defense

-South Carolina requires a defendant who used attempted or actual lethal force to present some evidence regarding each of the following four elements to get a jury instruction on self-defense: -(1) the defendant must be without fault in bringing on the difficulty, i.e., the defendant can't be the initial aggressor -There is an exception if the defendant is the initial aggressor but then communicates to his adversary his intent to withdraw and in good faith attempts to withdraw. -(2) the defendant must have been in actual imminent danger of losing his life or sustaining serious bodily injury, or he must have actually believed he was in imminent danger of losing his life or sustaining serious bodily injury -The defendant has to present evidence that the danger he faced or thought that he faced was imminent, i.e., about to happen. -The amount of force used by the defendant must be proportionate to the force that he faced -(3) If the defendant incorrectly believed he was in imminent danger of losing his life or sustaining serious bodily injury, that belief must have been reasonable -The reasonable person in a given case is a reasonable person with the defendant's particular history -Moreover, the reasonable person in a given case is a reasonable person with the defendant's personal characteristics -(4) the defendant had no other probable means of avoiding the danger. -Under the common law, there was a duty to retreat unless doing so would increase his danger of being killed or suffering serious bodily injury.

Specific Intent Crimes

-Specific intent is intentionally or knowingly doing an act with an intentional or knowing goal in mind -Mistake or ignorance of fact will be a defense to a specific intent crime as long as the mistake or ignorance was honest and regardless of whether the mistake or ignorance was reasonable. -Mistake or ignorance of fact is only a defense when it negates the mens rea of the crime. -Mistake and ignorance of fact cannot be raised if the defendant is charged with a strict liability offense.

Guilt Beyond a Reasonable Doubt

-The Due Process Clause requires the prosecutor to persuade the factfinder beyond a reasonable doubt of every fact necessary to constitute the crime charged -The standard requires that a juror's mind be in a subjective state of near certitude of guilt -Constitution neither prohibits courts from defining reasonable doubt nor requires them to do so, but -Definition, taken as a whole, cannot create a reasonable likelihood of a conviction insufficient to meet the constitutional standard -Any attempt to quantify the standard likely impermissibly lowers the prosecutor's burden of proof

Defense of Property/Habitation

-The defendant must present some evidence of two elements to get a jury instruction on the defense of habitation: -(1) that the victim committed a trespass by unlawfully entering the defendant's property without permission or refusing to leave after being asked; and -(2) that the chosen means of ejectment, up to and including lethal force, were reasonable under the circumstances. -The defendant does not need to present any evidence that he was or believed that he was in imminent danger of sustaining serious bodily injury

Accessory Before the Fact

-The prosecution must prove three elements beyond a reasonable doubt to secure a defendant's conviction for being an accessory before the fact/aiding and abetting: -That the accused, with the intent that the offense be committed: (1) either advised and agreed, urged, or in some way aided some other person to commit the offense; (2) was not present when the offense was committed; and (3) that some principal committed the crime. -Section 16-1-50 of the South Carolina Code provides that A person who counsels, hires, or otherwise procures a felony to be committed may be indicted and convicted: (1) as an accessory before the fact either with the principal felon or after his conviction; or (2) of a substantive felony, whether the principal felon has or has not been convicted or is or is not amenable to justice, and may be punished as if convicted of being an accessory before the fact.

Voluntary vs. Involuntary Acts

-There are four types of acts that are involuntary, meaning that they cannot support a criminal conviction: -a reflex or convulsion -a bodily movement during unconsciousness or sleep -conduct during hypnosis or resulting from hypnotic suggestion -a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual

Attempt Defenses Voluntary Abandonment

-There are no reported South Carolina cases recognizing a defense of abandonment of attempt -While voluntary abandonment is not technically a defense to attempt liability, such abandonment can be used to prove that the defendant never had the fixed, permanent intent to commit the subject crime.

Duress

-There are three elements in South Carolina to a viable duress defense: -(1) there was a present and imminent degree of coercion; -(2) that coercion was of such a nature as to cause a reasonable apprehension of death or serious bodily injury is the criminal act was not done; and -(3) there was no reasonable way, other than committing the crime, to escape the threat of harm. -Duress and necessity are not defenses to murder in South Carolina.

Void for Vagueness

-There are two ways in which a court can find a statute void for vagueness under the Due Process Clause: -The first way is when the statute fails to (1) give adequate notice to ordinary people so that they understand what conduct it prohibits; or (2) establish minimal guidelines to govern law enforcement in enforcing the law -The second way in which a law can be found void for vagueness is when it is written so broadly that it can encourage arbitrary and discriminatory enforcement by law enforcement.

Conspiracy Defenses Wharton's Rule

-There can be no conspiracy liability if a crime requires the participation of two wrongdoers.

The Failure to Act and Legal Duties

-There is generally no duty to act, meaning that the failure to act cannot lead to the imposition of criminal liability -There are five situations in which there is a duty to act, allowing a defendant to satisfy the actus reus requirement through the failure to perform an act of which he is physically capable: -First, where a statute imposes a duty to care for another -Second, where one stands in a certain status relationship to another -Third, where one has assumed a contractual duty to care for another -Fourth, where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid. -Fifth, where the defendant initially engages in a voluntary act, placing the victim in a perilous position, and then fails to remediate the situation.

Protection of Persons and Property Act

-There is no duty for a defendant to retreat before using or attempting lethal force as long as he is in a place where he is legally authorized to be -Section 16-11-420(D): a person "who unlawfully and by force enters or attempts to enter a person's dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or a violent crime." Section § 16-11-420(A), a homeowner or car owner who has his home or car broken into "is presumed to have a reasonable fear of imminent peril of death or great bodily injury to himself or another person when using deadly force that is intended or likely to cause death or great bodily injury to another person if the person: -(1) against whom the deadly force is used is in the process of unlawfully and forcefully entering, or has unlawfully and forcibly entered a dwelling, residence, or occupied vehicle...; and -(2) who uses deadly force knows or has reason to believe that an unlawful and forcible entry or unlawful and forcible act is occurring or has occurred...." -Section 16-11-450(A): A person who uses deadly force as permitted by the provisions of this article or another applicable provision of law is justified in using deadly force and is immune from criminal prosecution and civil action for the use of deadly force, unless the person against whom deadly force was used is a law enforcement officer.... -The burden of proof at an immunity hearing is a preponderance of the evidence.

Conspiracy Defenses The Victim Defense

-There usually cannot be a conspiracy to violate a criminal statute if one of the two alleged co-conspirators is the - whom the statute was designed to protect -But there can be conspiracy liability if the victim was an active participant in the crime

Involuntary Manslaughter

-Under South Carolina law, involuntary manslaughter is the criminally negligent killing of a human being. -What criminal negligence really means is one of two things: (1) the unintentional killing of another without malice, but while engaged in an unlawful activity not naturally tending to cause death or great bodily harm; or (2) the unintentional killing of another without malice, while engaged in a lawful activity with reckless disregard for the safety of others.

Entrapment

-Under South Carolina law, the defense of entrapment contains two elements: (1) government inducement; and (2) lack of predisposition. -A prior criminal record will often defeat a claim of entrapment due to predisposition -The government merely providing a defendant the opportunity to commit a crime is insufficient government inducement to receive a jury instruction on entrapment

Mental Defenses Incompetence to Stand Trial

-Under the Due Process Clause, a defendant is not competent to stand trial if he lacks the capacity (1) "to understand the proceedings against him;" OR (2) "to assist in his own defense as a result of a lack of mental capacity." -The defendant bears the burden of proving that he is incompetent to stand trial by a preponderance of the evidence. -Section 44-23-410(A): the judge "shall" instigate the relevant procedures to determine whether the defendant is competent to stand trial "[w]henever [the] judge...has reason to believe that a person on trial before him...lacks the capacity to understand the proceedings against him or to assist in his own defense as a result of a lack of mental capacity...." -Ordering a competency examination is within the discretion of the trial judge and a refusal to grant an examination will not be disturbed on appeal absent a clear showing of an abuse of discretion -Even if the parties do not request a competency examination, the court can grant one sua sponte.

Principle of Legality Due Process Clauses

-Under the Due Process Clauses, courts cannot interpret an existing statute in a new way and apply that new interpretation retroactively to punish a defendant -Such an interpretation would violate the requirement of the Due Process Clause that a criminal statute give fair warning of the conduct which it prohibits. -Judicial alteration of a common law doctrine of criminal law violates the principle of fair warning, and hence must not be given retroactive effect, only where it is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue

Self-Defense In Non-Lethal Force Cases

-Under the second element, the defendant must have been in actual imminent danger or he must have actually believed he was in imminent danger of some bodily injury and not the serious bodily injury or death required for lethal force. -The same holds true under the third factor -The fourth element is simply inapplicable in a case in which the defendant does not use or attempt lethal force.

Defense of Others

-Under the theory of defense of others, one is not guilty of taking the life of an assailant who assaults a friend, relative, or bystander if that friend, relative, or bystander would likewise have the right to take the life of the assailant in self-defense.

Conspiracy Defenses Withdrawal

-Withdrawal is a viable defense to conspiracy if (1) the defendant communicates his withdrawal to all co-conspirators; and (2) that communication takes place under circumstances as would permit his associate(s) to withdraw.