The opinion
JUSTICE ALLOY, specially concurring:
I concur in the result reached by the majority that venue properly lay in Rock Island County for the section 405(b) conspiracy, but whereas the majority finds that just Cooper and Madden are necessary to achieve that result, I believe the presence of a third conspirator, Chuck, is also necessary.
As the majority correctly indicates, a calculated criminal drug conspiracy is somewhat of a rare avis because it requires agreement among at least three participants (Ill. Rev. Stat. 1979, ch. 56½, par. 1405(b)(2)), while an ordinary conspiracy takes just two conspirators to result in criminal liability (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 2). Thus, it is possible to have an agreement between two persons which results in no criminal liability under section 405(b) until another agreement by a third conspirator occurs. Placed in perspective of the present case, although Cooper and Madden agreed in Rock Island to sell heroin to Haley, a section 405(b) conspiracy was legally impossible because the minimum number of conspirators was then lacking. The majority, however, would interpret the venue section of the Criminal Code of 1961 to include the situs of this first, incipient agreement as a possible trial situs, even though that agreement did not itself result in criminal liability. For this reason I do not find the case law cited by the majority to be directly persuasive, because in every instance the offense involved was ordinary conspiracy where criminal liability results at the moment an agreement is reached between at least two participants. The majority’s application of the vicarious liability rule to an agreement not itself resulting in criminal liability only expands the already bloated bounds of conspiracy law which have made the offense the “ '* * * darling of the * * * prosecutor’s nursery.’ ” (W. LaFave & A. Scott, Jr., Criminal Law sec. 61, at 455 (1972), quoting from Harrison v. United States (2d Cir. 1925), 7 F.2d 259 ).) The accused’s right to be tried by a jury in the county where the offense allegedly took place is an important constitutional guarantee, for it safeguards against unfairness and hardship caused when he is prosecuted in a remote place and should not be restricted without express legislative authority.
I also submit that today’s result is inconsistent with the result that would occur in an analogous situation involving ordinary conspiracy. The following example illustrates. A is in Rock Island and decides he wants to sell some heroin. He has none, but he knows that B, who lives in Chicago, can get some. A goes to Chicago and contacts B who agrees to sell heroin to A. Later they meet at B’s Chicago apartment and conclude the transaction. They are then arrested. Under the majority’s holding, B could be tried in Rock Island County because the incipient or intended conspiracy, which at that time did not constitute an offense since only one conspirator then existed, began with A in Rock Island. Under established conspiracy law, however, venue lies exclusively in Cook County because all three conspirators were in Chicago when the agreement was made and all acts done in furtherance thereof also occurred there.
Nevertheless, venue for the section 405(b) charge did lie in Rock Island County because the defendant joined a pre-existing conspiracy consisting of Cooper, Madden, and Chuck. In his brief, the defendant concedes that a possible venue for this conspiracy rests in Rock Island County because Cooper and Madden were located in Rock Island County when they agreed over the telephone to buy heroin from Chuck. He argues, however, that once Chuck was arrested, Chuck withdrew from that conspiracy leaving only Cooper and Madden; with only two conspirators, a section 405(b) conspiracy was legally impossible, thus terminating the conspiracy which began in Rock Island. The defendant concludes that although a second section 405(b) conspiracy arose when he agreed to sell Cooper and Madden heroin, the agreement and all acts done in furtherance thereof occurred in Chicago; thus, venue lay exclusively in Cook County. The defendant’s argument fails because he incorrectly equates Chuck’s arrest with his withdrawal. In order to withdraw from a conspiracy, a conspirator must take some affirmative action, either confessing to police or informing his co-conspirators that he has withdrawn. (United States v. Borelli (2d Cir. 1964), 336 F.2d 376 , cert. denied in Cinquegrano v. United States (1964), 379 U.S. 960 , 13 L. Ed. 2d 555 , 85 S. Ct. 647 .) In applying this definition of withdrawal, courts have consistently held that, while a conspirator’s arrest accompanied by his confession to the conspiracy may constitute a withdrawal, a conspirator’s arrest or incarceration alone is not a disavowal of his participation and will not work his withdrawal from the conspiracy as a matter of law. (United States v. Panebianco (2d Cir. 1976), 543 F.2d 447 , cert. denied in Anatala v. United States (1977), 429 U.S. 1103 , 51 L. Ed. 2d 553 , 97 S. Ct. 1128 ; United States v. Harris (7th Cir. 1976), 542 F.2d 1283 , cert. denied in Clay v. United States (1977), 430 U.S. 934 , 51 L. Ed. 2d 779 , 97 S. Ct. 1558 ; United States v. Borelli.) This is especially true where, as here, the incarceration was for a matter unrelated to the offense charged in the conspiracy indictment. Thus, because Chuck’s arrest did not end his participation in the calculated criminal drug conspiracy, which the defendant concedes began in Rock Island, and because this conspiracy was not otherwise terminated before the defendant entered, the defendant entered into a pre-existing calculated criminal drug conspiracy and was vicariously liable for the previous agreement, made partially in Rock Island, to deliver heroin. For this reason the circuit court of that county was authorized under section 1 — 6(m) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 1 — 6(m)), to try the defendant for the charge of calculated criminal drug conspiracy despite his never having set foot in Rock Island County. People v. Pascarella (1981), 92 Ill. App. 3d 413 , 415 N.E.2d 1285 .