United States Supreme Court Denies Relief to Defendant who Withdrew from a Criminal Conspiracy

This month the United States Supreme Court released Smith v. United States

Unanimously, the Court held a defendant bears the burden of proving a defense of withdrawal in a criminal conspiracy. Moreover, shifting the burden to the defendant does not violate the Due Process Clause. Only if an affirmative defense negates an element of the crime does the government have a constitutional duty to disprove a defense beyond a reasonable doubt.

Smith was involved in an organization that distributed heroin, cocaine, crack, and marijuana in Washington D.C. for approximately ten years. He was tried with five co-defendants. He was convicted of conspiracy to distribute narcotics and possession with intent to distribute (21 U. S. C. §846); a RICO conspiracy (18 U. S. C. §1962(d)); murder connected with a continuing criminal enterprise (21 U. S. C. §848(e)(1)(A)); and four counts of murder (D.C. Code §§22–2401 and 22–3202 (1996)). The conspiracy conviction was at issue.

Withdrawing from a conspiracy outside the statute-of-limitations period is a complete defense to prosecution. Smith had moved to dismiss the conspiracy charges as time barred by the 5-year statute of limitations (18 U. S. C. §3282), since he had spent the last six years of the charged conspiracies in prison. The court denied the motion and he renewed the defense at trial. Then, Smith was convicted. Ultimately, the Court of Appeals affirmed Smith’s conspiracy convictions, as the circuits were divided on who bears the burden of proving or disproving the withdrawal defense.

Intriguingly, this case intersects at a withdrawal defense and statute of limitations defense. Smith argued that once he presented evidence that he quit the conspiracy prior to the statute of limitations period, then the government had to prove participation within the five-year window. The Supreme Court stated the government cannot shift the burden to a defendant if the defense negates an element of the crime. However, the Court determined the withdrawal defense does not negate the membership element of the offense because it presupposes participation in the conspiracy. In one thoughtful proposition, the Court settled an issue that circuits have wrestled with for years.

Additionally, although the defense shields a defendant from liability for co-conspirators’ acts after the withdrawal, the defendant still remains guilty of the crime of conspiracy. Therefore, the defendant is still liable for any acts in the conspiracy prior to the withdrawal.

The Court went on to state that Congress could choose to assign the government the burden of proving the absence of withdrawal, although not constitutionally required. Since the relevant statutes were silent on burden of proof regarding withdrawal, the Court determined Congress’s intention was to uphold the common-law rule. That is, defendants must prove affirmative defenses.

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