Supreme Court Watch: Proving Conspiracy Withdrawal Before The Statute Of Limitations Has Run

Supreme Court decision will address who bears the burden of persuasion and the type of evidence that may be presented when a statute of limitations claim is based on a prior withdrawal from the conspiracy, in Smith v. United States, 567 U.S. _ (June 18, 2012) (No. 11-8976)

In Smith v. United States, the question presented is:

Whether withdrawing from a conspiracy prior to the statute of limitations period negates an element of a conspiracy charge such that, once a defendant meets his burden of production that he did so withdraw, the burden of persuasion rests with the government to prove beyond a reasonable doubt that he was a member of the conspiracy during the relevant period -- a fundamental due process question that is the subject of a well-developed circuit split.

The case is expected to address what the burden of persuasion is and who bears the burden to establish withdrawal from a conspiracy prior to the statute of limitations. The circuits are evenly divided on this issue.

Case Background

Generally, a five year statute of limitations applies to most criminal offenses under 18 U.S.C. § 3282. In the case, two defendants were convicted with four others of participating in a drug conspiracy, RICO conspiracy, continuing criminal enterprise, murder, and other related offenses. Two of the defendants claimed that they had withdrawn from the conspiracy before the statute of limitations. During the jury deliberations, the jury sent a note to the trial court: “If we find that the narcotics or RICO conspiracies continued after the relevant date under the statute of limitations, but that a particular defendant left the conspiracy before the relevant date under the statute of limitations, must we find the defendant not guilty?” The trial court instructed, after the defendants objected:

Once the government has proven that a defendant was a member of a conspiracy, the burden is on the defendant to prove withdrawal from a conspiracy by a preponderance of the evidence. To prove some¬thing by a preponderance of the evidence means to prove that it is more likely true than not true. It is determined by considering all of the evidence and deciding which evidence is more convincing.

The D.C. Circuit noted a division among the circuits and affirmed the convictions:

Our sister circuits have differed on this issue. While some have said that the burden of proving withdrawal always rests on the defendant, [citing the Second, Fifth, Sixth, Tenth and Eleventh Circuits], others have held that, once the defendant meets his burden of production that he has withdrawn prior to the relevant limitations period, the burden of persuasion shifts to the government [citing the First, Fourth, Third, Seventh and Ninth Circuits].

United States v. Moore, 651 F.3d 30, 90 (D.C. Cir. 2011) (per curiam). Based on prior sentencing precedent in the circuit, the D.C. Circuit held “that the district court correctly instructed the jury that the defendant bore the burden of persuasion to show that he withdrew from the conspiracy outside of the statute of limitations period.” Moore, 651 F.3d at 90.

Questions Raised

The oral argument, on November 6, 2012, highlighted some key issues in the case. A.J. Kramer, Federal Public Defender, Washington, D.C., on behalf of the petitioners, contended that withdrawal triggered the statute of limitations of defense. He conceded in response to questions from Justice Antonin Scalia, that it was not an element of the offense. Oral Argument Transcript, at 4-5, 25-26. He also agreed that the defendant had the burden of production to show initially that the statute of limitations barred prosecution based on withdrawal from the conspiracy. Oral Argument Transcript, at 12:18-20. His primary contention was that withdrawal is “inconsistent” with membership in the conspiracy and therefore “negates the element of membership in the conspiracy. If he withdrew, he cannot, at the same time, be a member of the conspiracy.” Oral Argument Transcript, at 18-19; id. at 27-28. In his view, the government ultimately holds “the burden to prove membership within the limitations period” under the Due Process Clause. Oral Argument Transcript, at 23:20-22.

Chief Justice John G. Roberts, Jr., Justices Ruth Bader Ginsburg and Samuel Alito, Jr., raised questions about the practical impact of the petitioner’s claim and how the government would prove that withdrawal did not occur. Some co-conspirators may assert their Fifth Amendment right against self-incrimination and would not testify on the withdrawal issue. Oral Argument Transcript, at 15, 24-25. Justice Ginsburg noted that under the petitioner's petition, the government would have to prove membership in the conspiracy "twice": "They prove his membership in the conspiracy. And then you say, once he alleges that he withdrew, they have to prove it again." Oral Argument Transcript, at 14:6-9.

Justice Ginsburg noted that in civil cases the statute of limitation is an affirmative defense that must be pled and proven by the plaintiff and asked, “Why should it be different on the criminal side?” Oral Argument Transcript, at 5:10-14.

The government’s position, argued by Sarah E. Harrington, Assistant to the Solicitor General, was that Due Process concerns were not implicated “because lack of withdrawal is not an element of the crime of conspiracy.” Oral Argument Transcript, at 46:7-10. She argued by analogy that the government does not have to disprove insanity or extreme emotional disturbance. Oral Argument Transcript, at 44:4-12.

The decision will impact that type of evidence that will need to be presented in conspiracy cases in which a statute of limitations claim is made. A decision is expected before the end of the Term in June 2013.

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In the meantime, the briefs filed in the case, along with other materials, are available below:

Oral Argument

Merits Briefs

Amicus Curiae Brief

Certiorari Petition Briefs

Lower Court Ruling and Record

  • July 29, 2011: D.C. Circuit Opinion Under Review: United States v. Moore, 651 F.3d 30, 89-90 (D.C. Cir. 2011), cert. granted, 567 U.S. _ (June 18, 2012) (No. 11-8976)
  • Supreme Court Docket

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