U.S. Supreme Court On Withdrawal From Conspiracy: Defendant Retains Burden Of Proof
By: Christopher A. Iacono
It is probably fair to assume that withdrawing from a criminal conspiracy is no small task. For someone charged for crimes committed after they withdrew from a conspiracy, however, the burden of establishing that withdrawal remains with them through trial. That is the primary holding of a unamimous opinion of the U.S. Supreme Court, delivered for the Court by Justice Antonin Scalia on Wednesday. Smith v. United States, No. 11-8976 (January 9, 2013).
At his trial in the U.S. District Court for the District of Columbia, petitioner Calvin Smith asserted the defense of withdrawal as support for his claim that conspiracy charges brought against him for his role in an illegal drug organization were barred by the five year statute of limitations. The district court instructed the jury that once the government proved that Smith was a member of the conspiracy, he had the burden to prove, by a preponderance of the evidence, withdrawal outside the statute of limitations. Smith was convicted, and the D. C. Circuit affirmed.
On appeal to the Supreme Court, Smith argued that once he presented evidence that he ended his membership in the conspiracy prior to the statute of limitations period, it became the Government’s burden to prove that his individual participation in the conspiracy persisted within the five year window. The Court disagreed, holding that placing the burden of proving withdrawal on the defendant does not violate the Due Process Clause. The Court stated that unless an affirmative defense negates an element of the crime, the Government has no constitutional duty to overcome the defense beyond a reasonable doubt.
Withdrawal terminates a defendant’s liability for his co-conspirators’ post-withdrawal acts, but he remains guilty of conspiracy. Withdrawal that occurs beyond the statute-of-limitations period provides a complete defense to prosecution, but does not render the underlying conduct noncriminal. Thus, while union of withdrawal with a statute-of-limitations defense can free a defendant of criminal liability, the Court found that it does not place upon the prosecution a constitutional responsibility to prove that he did not withdraw. The Court also noted that because Congress did not address the burden of proof for withdrawal in the applicable criminal statutes, it is presumed that Congress intended to preserve the common-law rule that affirmative defenses are for the defendant to prove.
The Court found that the analysis does not change when withdrawal is the basis for a statute-of-limitations defense. A conspiracy continues until it is terminated or, as to a particular defendant, until that defendant withdraws. In that circumstance the government need only prove that the conspiracy continued past the statute-of-limitations period. The burden is then on the defendant to prove that he or she withdrew outside of the statute-of-limitations period.