A conspiracy may be formed by any number of people, and any number may subsequently join or
leave the conspiracy. The conspirators do not need to know the precise part which the others will play
or even the identity of all of the others. The parties are liable for all acts done by co-conspirators in
furtherance of the conspiracy. A conspirator may withdraw and not be liable for acts done after the
withdrawal as long as he can show affirmative evidence of his withdrawal. The burden is on the
accused to show the withdrawal. For example, clear evidence of withdrawal from a conspiracy is when
one of the co-conspirators reports the conspiracy to law enforcement officials. Merely making oneself
scarce or for unexplained reasons having limited or no contact with fellow conspirators after the
conspiracy has been formed probably will not be found to be a withdrawal from the conspiracy.
The overt act does not have to be criminal, nor does it have to be the intended crime itself. The
conspiracy and the crime itself are separate offenses and may be separately punished.
PART C - INVESTIGATIVE TOOLS
A. Military Search Authorization.
Military Rule of Evidence 315 defines an authorization to search as an express permission, written
or oral, issued by competent military authority to search a person or an area for specified property or
evidence or for a specific person and to seize such property, evidence or person. Military personnel
may be searched wherever found; anyone or anything within military control may be searched pursuant
to an authorization. The Manual requires a probable cause determination by the authorizing official.
The determination may be made based upon oral, written, or telephonic communications. The
authorization may be given by a commander, with authority over the area or person to be searched, a
military judge, or (in the Army) a military magistrate (paragraph 9-7, AR 27-10).
B. Search Warrants Under the Federal Rules of Criminal Procedure.
Rule 41 of the Federal Rules of Criminal Procedures sets out the rules for searches in the federal
system. The warrant may be issued by a federal magistrate/judge or a judge of a state court of record
within the district where the person or property to be searched is located. The warrant may be
requested by an attorney for the government or by a federal law enforcement officer. Military agents of
the department of defense who are authorized to enforce the UCMJ are included in the definition of
"federal law enforcement officer" (28 CFR Part 60).
The federal rule normally requires a sworn affidavit setting out the grounds for the requested
warrant. The magistrate can require the affiant to appear personally and to be examined under oath to
help in determining whether probable cause exists.
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