Supreme Court Watch: Deciding The Burden Of Proof On Conspiracy Withdrawal

In a unanimous ruling resolving a circuit split, the Supreme Court holds that the defendant bears the burden to establish the affirmative defense of withdrawal and the government is not constitutionally required to disprove withdrawal; several circuit jury instructions on the withdrawal issue will need to be updated; the opinion also underscores long-established conspiracy proof and liability issues, in Smith v. United States, 568 U.S. _, 133 S.Ct. 714, 184 L.Ed.2d 570 (Jan. 9, 2013) (No. 11-8976)

Yesterday, the Supreme Court resolved a circuit split “on which party bears the burden of proving or disproving a defense of withdrawal prior to the [statute of] limitations period.” Smith v. United States, 568 U.S. _, 133 S.Ct. 714, 184 L.Ed.2d 570 (2013); see also United States v. Moore, 651 F.3d 30, 90 (D.C. Cir. 2011) (per curiam) (case under review noting circuit split).

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

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.

Justice Antonin Scalia wrote the opinion for a unanimous Court which held that the defendant holds the burden to prove withdrawal. The government does not bear any burden to disprove withdrawal. Once "the defendant produces some evidence" of withdrawal, the Due Process Clause does not require that the government "must prove beyond a reasonable doubt that he did not withdraw outside the statute-of-limitations period." Smith, 568 U.S. at _.

The opinion underscores some important points for conspiracy law. First, given the ongoing nature of a conspiracy, the defendant remains "responsible for the acts of his coconspirators" until withdrawal or the objectives of the conspiracy are accomplished. Smith, 568 U.S. at _ (citing Hyde v. United States, 225 U.S. 347, 369 (1912) ("Having joined in an unlawful scheme, having constituted agents for its performance, scheme and agency to be continuous until full fruition be secured, until he does some act to disavow or defeat the purpose he is in no situation to claim the delay of the law. As the offense has not been terminated or accomplished he is still offending. And we think, consciously offending, offending as certainly, as we have said, as at the first moment of his confederation, and consciously through every moment of its existence. The successive overt acts are but steps toward its accomplishment, not necessarily its accomplishment."); Pinkerton v. United States, 328 U.S. 640, 646 (1946) ("so long as the partnership in crime continues, the partners act for each other in carrying it forward")). The Court emphasized "the established proposition that a defendant’s membership in the conspiracy, and his responsibility for its acts, endures even if he is entirely inactive after joining it." Smith, 568 U.S. at _ (citing Hyde, 225 U.S. at 369-70 (“As he has started evil forces he must withdraw his support from them or incur the guilt of their continuance.”)) (emphasis in original).

Second, the defendant holds the burden to establish the affirmative defense of withdrawal. Because “[w]ithdrawal does not negate an element of the" charged drug and RICO conspiracies, the Due Process Clause does not require the government to disprove withdrawal. Smith, 568 U.S. at _.

Third, even where withdrawal may be established, withdrawal has liability limitations and certainly does not exonerate the defendant. While “[w]ithdrawal terminates the defendant’s liability for post withdrawal acts of his co-conspirators, the defendant "remains guilty of conspiracy” for pre-withdrawal acts. Only when withdrawal is established "beyond the applicable statute-of-limitations period" does "a complete defense" result. However, this "complete defense" does "necessarily" prove "the defendant's innocence." Smith, 568 U.S. at _.

Fourth, in clarifying the government's obligations, the Court held that the government does not hold the burden to prove “the non-existence of withdrawal” under the Constitution. Smith, 568 U.S. at _.

Fifth, on the issue of the statute of limitations, the defendant must raise this defense. After a statute of limitations defense is asserted, the government need only show that the “conspiracy continued past the statute-of-limitations period.” Smith, 568 U.S. at _.

Finally, the Court noted that while neither the Constitution nor conspiracy and statute of limitations statutes require the government to disprove withdrawal, Congress could adjust the allocation of proof of the parties. In the absence of such a congressional directive, the Court applied the common-law rule that the defendant holds the burden to establish the affirmative defense. As a policy matter, however, the opinion noted that the defendant was in the best position to bear the burden to establish withdrawal, as it "would be nearly impossible for the Government to prove the negative that an act of withdrawal never happened." Smith, 568 U.S. at _.

The Smith case is significant for two reasons. First, the case clarifies proof issues concerning withdrawal from a conspiracy which had divided the lower courts. Several circuit jury instructions will have to be modified to conform with the decision. As one example, the following statement from Ninth Circuit Criminal Jury Instruction 8.24 (Withdrawal from Conspiracy) is no longer an accurate statement of law:

The government must prove beyond a reasonable doubt that the defendant did not withdraw from the conspiracy before the overt act—on which you all agreed—was committed by some member of the conspiracy.

Manual of Model Criminal Jury Instructions for the District Courts of the Ninth Circuit, Prepared by the Ninth Circuit Jury Instructions Committee, at p. 150 (2010 ed.). For other jury instructions, see the Federal Jury Instructions Resource Page. Second, as summarized above, the case underscores some long-standing principles concerning liability under conspiracy law. For more on the Smith case, including the case briefs and related materials, see Supreme Court Watch: Proving Conspiracy Withdrawal Before The Statute Of Limitations Has Run.

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