The Challenges In Establishing Withdrawal From A Conspiracy

One requirement in admitting co-conspirator statements under FRE 801(d)(2)(E) is the defendant's participation in the conspiracy at the time of the statement; First Circuit concludes the defendant failed to show he withdrew from the conspiracy and therefore the challenged statements were properly admitted, in United States v. George, _ F.3d _ (1st Cir. July 30, 2014) (No. 12-2373)

As highlighted in a recent First Circuit case, establishing withdrawal from a conspiracy is not an easy task.

Trial Court Proceedings: Provisionally Admitting Recorded Statements

In the case, defendant George, a defense lawyer, was prosecuted for conspiring to engage in money laundering and related offenses. Unknown to him, an informant obtained a series of recorded conversations concerning the conspiracy. Defendant George introduced the informant to broker Hansen. At trial, the government introduced some of the recorded conversations including the broker (a) “asking” the informant “how many times he would need his laundry services and whether doing time on the state-larceny charge was worth it”; (b) “responding ‘alright’ to” the informant “saying that ‘I'll do a bunch more’ deals and ‘I got all that money from the coke too’”; and (c) “saying ‘oh jeez’ when” the informant “warned him that ‘there's probably fuckin' coke from this guy on it’.” Defendant George argued that these statements were inadmissible against him because he had withdrawn from the conspiracy. The trial judge provisionally admitted these statements subject to the government later establishing their admissibility. George, _ F.3d at _ (citing United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977) (listing foundational elements for co-conspirator statements); United States v. Sepúlveda-Hernández, 752 F.3d 22, 30 n.2 (1st Cir. 2014) (noting procedure to provisionally admit the statements)). After the jury convicted him at trial, on appeal the defendant argued these statements were inadmissible.

First Circuit Review: Inability To Establish Withdrawal

The First Circuit affirmed the admission of the statements under FRE 801(d)(2)(E). The circuit noted that “[w]ithdrawal is a difficult defense, typically requiring evidence that the accused confessed his involvement in the conspiracy to the government or announced his withdrawal to his coconspirators.” George, _ F.3d at _ (citing United States v. Mehanna, 735 F.3d 32, 57 (1st Cir. 2013) ("Avoiding contact with one's coconspirators, without more, is not in any way, shape, or form tantamount to abandoning the conspiracy"); United States v. Ciresi, 697 F.3d 19, 27 (1st Cir. 2012) ("remarks are ambiguous" did not "clearly evince a 'change of heart or abandonment'”) (citation omitted); United States v. Potter, 463 F.3d 9, 20 (1st Cir. 2006) (noting "[w]ithdrawal is a demanding defense requiring affirmative evidence of an effort to defeat or disavow or confess”)). The defendant did not establish either withdrawal option.

The circuit reviewed two occasions in which the defendant claimed that he had withdrawn. During the first meeting, the defendant told the informant (before the broker had been introduced), “if ‘I don't’ phone ‘the guy’ then ‘it's all done.’" George, _ F.3d at _. As the circuit explained, the statement:

obviously, was not a confession to the authorities. George does not argue otherwise. But neither does he explain how these statements — which could suggest that he was champing at the bit to get a deal done — constituted a clear communication to co-conspirator Hansen that he was withdrawing. And far from disavowing the conspiracy, George spent a lot of time at that meeting walking Dardinski through how the deals would work. He also later gave him Hansen's cell-phone number. All of that devastates this line of argument.

George, _ F.3d at _. On a second occasion, the defendant contended, he told the informant
“‘I'm not involved’ and that ‘you can tell [Hansen] what I said.’" In context, this statement did not constitute withdrawal. As the circuit noted:

But other things he said during that same conversation pour cold water on this theory. One example that springs immediately to mind is his telling Dardinski to tell Hansen that "unless he calls and discusses it with me, not to make checks out . . . to me." And do not forget that he later accepted $20,000 from [broker] Hansen for his role in the money-laundering scheme — a cash grab that showed that he had been part of the conspiracy all along.

George, _ F.3d at _. The defendant also argued that “he ‘largely’ would not answer or return” the informant’s telephone calls. However, “mere cessation of activity on behalf of the conspiracy is not enough to show withdrawal.” George, _ F.3d at _ (United States v. Piper, 298 F.3d 47, 53 (1st Cir. 2002) (failure to show "an affirmative showing that the conspiracy ended coincident with the consummation of the April 20 sale"); Mehanna, 735 F.3d at 57 (“[a]voiding contact with one's coconspirators, without more, is not in any way, shape, or form tantamount to abandoning the conspiracy”); United States v. Guevara, 706 F.3d 38, 46 n. 9 (1st Cir. 2013) (co-conspirator skipping meetings and refusing to answer calls from cooperating witnesses and coconspirators “constitute inaction rather than affirmative steps to distance himself from his prior involvement.”)).

None of the arguments advance by the defendant were sufficient to establish withdrawal. Consequently, the challenged statements were made during and in furtherace of the conspiracy and were properly admitted.


The George highlights the challenges in establishing withdrawal from a conspiracy. While not cited in the case, last year, the Supreme Court unanimously held in Smith v. United States, 568 U.S. _, 133 S.Ct. 714, 184 L.Ed.2d 570 (Jan. 9, 2013), that the defendant bears the burden to establish the affirmative defense of withdrawal and the government is not constitutionally required to disprove withdrawal. See Supreme Court Watch: Deciding The Burden Of Proof On Conspiracy Withdrawal.


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