Defendant Bears Burden Of Proving Conspiracy Withdrawal Even When Withdrawal Date Implicates Statute Of Limitations Defense On Which Government Normally Bears Burden
Alain Leibman writes:
In a recent case, United States v. Smith, 133 S. Ct. 714 (2013), the Supreme Court had occasion to examine the conspiracy withdrawal defense and to reconsider whether it is the defendant or the government that carries the burden of proof of that defense when the withdrawal arguably occurs at a point in time outside the statute of limitations for a conspiracy charge. Normally, the government bears the burden of proving to the jury beyond a reasonable doubt that the offense it alleges did in fact take place within the limitations period.
In Smith, defendant raised the defense of withdrawal from a drug distribution organization, arguing that he had taken the necessary steps to separate himself from the alleged co-conspirators and had done so more than five years prior to the indictment, making his prosecution untimely under the generally applicable five-year statute of limitations, 18 U.S.C. §3282. A pretrial motion to dismiss the indictment on statute of limitations grounds was denied, and the case went to trial. The jury was charged on the withdrawal defense but was instructed that it was the defendant’s burden to prove his withdrawal outside the five-year period. Smith was convicted.
Writing for a unanimous Supreme Court, Justice Scalia wrote that the common law rule is that affirmative defenses, such as withdrawal from conspiracy, that do not negate elements of the offense are matters for the defendant to prove by a preponderance of evidence. This allocation of the burden of persuasion was fair, he wrote, because it would be "nearly impossible" for the government to prove that a withdrawal had not actually occurred, given that the pertinent facts were in the defendant’s knowledge and control. The appellant argued that his situation was different, because the date of his withdrawal implicated a statute of limitations defense and so reverted the burden of proof to the government, which typically is obliged to prove beyond a reasonable doubt the timing of an offense when they limitations defense is raised. But the government had met its burden by showing that the charged conspiracy continued past a point five years prior to indictment. Smith's argument was not that the government had failed to prove a timely-occurring conspiracy, only that he had successfully withdrawn from that conspiracy, and so leaving the burden of proof on Smith was in accord with the common law understanding.
(Alain Leibman, Esq., the author of this entry and a co-author of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office. A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts)