I concur in part and dissent in part. I agree with the majority that there is no distinction for sentencing purposes between “trafficking by conspiracy” and “conspiracy to traffic.” I do not agree, however, that we should adopt the Fifth Circuit’s rule1 that an arrest ends the arrestee’s role in a conspiracy as a matter of law. See, e.g. United States v. Dunn, 775 F.2d 604 (5th Cir.1985). I would hold that petitioner may be prosecuted in state court for his role in this conspiracy only if the jury finds that he withdrew and then rejoined it. I would therefore reverse petitioner’s conviction and remand for a new trial.
The gravamen of a conspiracy is the agreement. E.g., State v. Amerson, 311 S.C. 316, 428 S.E.2d 871 (1993). An individual who joins the conspiracy remains a party to it until he withdraws or until the conspiracy terminates. A withdrawal is effective only when it is communicated to the other members of the conspiracy. State v. Woods, 189 S.C. 281, 1 S.E.2d 190 (1939); see also State v. Gunn, 313 S.C. 124, 437 S.E.2d 75 (1993). “It is always a question for the jury to determine by the facts and circumstances in the case if a person has retired from the unlawful and illegal conspiracy.....” State v. Rook, 174 S.C. 225, 235, 177 S.E. 143, 147 (1934).
*655In my view, petitioner’s state prosecution for his role in the drug conspiracy is barred by S.C.Code Ann. § 44-53-410 (Supp.2000)2 unless the state can prove, beyond a reasonable doubt, that petitioner withdrew and then reentered (by making a new agreement) the continuing conspiracy. This evidentiary requirement is consistent with that imposed in successive conspiracy prosecutions by both the Second and the Seventh Circuits. See, e.g. United States v. Romero, 967 F.2d 63, 67 (2d Cir.1992)(Double Jeopardy no bar to a second conspiracy prosecution if the government can “demonstrate that every element of [the second] conspiracy offense happened after the date of the plea [to the first conspiracy indictment]”)(emphasis supplied); United States v. Asher, 96 F.3d 270, 272 (7th Cir.1996) (Double Jeopardy no bar to second conspiracy prosecution if government can show defendant withdrew after his first arrest, conviction, and incarceration, and “that after his release from prison, [he] reentered the conspiratorial agreement thereby committing a new offense”).
There is some appeal to the hard and fast rule adopted by the majority that an arrest terminates participation in a conspiracy as a matter of law. As explained above, however, such a rule does not comport with our conspiracy jurisprudence. I would therefore reverse the decision of the Court of Appeals, and remand this matter for a new trial.
. The majority cites several cases from other jurisdictions that it contends adopt this same rule. In my opinion, however, none of these other cases stand squarely for this proposition. For example, the unpublished decision of the Fourth Circuit in United States v. Lopez, 1998 WL 476788 (4th Cir.1998), holds that "The Defendants' involvement in the conspiracy ... ended with their arrest and conviction.” Id. (emphasis supplied). While the Michigan decision does rely on Fifth Circuit precedent in "noting” the defendants’ part in the conspiracy ended when they were arrested, the issue in that case was whether the government could invoke an exception to the Double Jeopardy bar which allows the state to prosecute a greater crime following a conviction for a lesser included offense where the state learned of additional facts after the first conviction. People v. Wilson, 454 Mich. 421, 563 N.W.2d 44 (1997) (holding government had not met its burden allowing it to invoke the Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) exception).
. Petitioner has no valid Double Jeopardy claim since he is being prosecuted by the state following a federal conviction. Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959).