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Argument preview: Withdrawal from conspiracy – affirmative defense, or unconstitutional burden shifting?

Next week, in Smith v. United States, the Supreme Court will consider a question of federal criminal conspiracy law that has long divided the courts of appeals: which party bears the burden of proof that an alleged conspirator’s withdrawal from a conspiracy occurred outside of the limitations period, such that the prosecution is barred?  The Court’s decision on this narrow issue, however, may inject instability into an area of due process law that has been settled for thirty-five years.

Factual and procedural background

Petitioner Calvin Smith was one of fifteen defendants charged in a 158-count indictment.  The charges grew out of a drug conspiracy in the Washington, D.C., area that spanned from the late 1980s to 2000, involving the distribution of heroin, cocaine, crack, and marijuana, and resulting in thirty-one murders.  Smith and five other defendants were tried together in a jury trial that lasted over ten months.  Smith was convicted of three counts of murder while armed; murder in connection with a continuing criminal enterprise; conspiracy to distribute narcotics; and Racketeer Influenced and Corrupt Organizations (RICO) conspiracy.  He received a life sentence.

Smith and his co-defendants were indicted in 2000, effectively ending the criminal enterprise.  The statute of limitations on narcotics and RICO conspiracies is five years.  Smith, however, had been arrested and incarcerated from June 1, 1994, through the remainder of the conspiracy, for a shooting that was charged in the indictment.  The trial judge instructed the jury that the government had to prove beyond a reasonable doubt “that there was a [narcotics or RICO] conspiracy, [that Smith] was a member of that conspiracy, and that the conspiracy continued in existence within five years before” the filing of the indictments in 2000.  After twelve days of deliberations, the jury returned with a note: “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 judge responded, over Smith’s objection, “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.”

On appeal, the D.C. Circuit rejected Smith’s challenge to the instruction.  While acknowledging that the courts of appeals were divided five to five on the question, the court followed circuit precedent that requires a defendant to prove his withdrawal in the context of sentencing, so that conduct attributed to the conspiracy after his withdrawal is not considered in the calculation of his sentence. (The court disposed of this issue in just six paragraphs of its seventy-three-page decision.)

Smith then filed a petition for certiorari, which the Court granted on June 18, 2012.

Conspiracy, burden of proof, and the parties’ arguments

Under federal law, to obtain a conviction for narcotics or RICO conspiracy, the government must prove both that there was a conspiracy and that the defendant agreed to participate in it.  The government does not need to prove any overt act.  Once there is agreement, the defendant is culpable for all of the actions of his co-conspirators in furtherance of the conspiracy until the conspiracy ends or he withdraws.  To withdraw, he must take affirmative action inconsistent with the object of the conspiracy, such as notifying the police or unequivocally notifying his confederates that he has withdrawn.  If withdrawal occurs outside of the five-year limitations period, it is a complete bar to prosecution.  If it occurs within the limitations period, the defendant is still liable for the conspiracy, but not for conduct that occurred after his withdrawal.  In addition, co-conspirator statements after a defendant’s withdrawal are not admissible against him.

In his brief, Smith argues that a defendant’s continuing participation in a conspiracy into the limitations period is an essential element of the crime, which the government must prove beyond a reasonable doubt.  To hold an individual criminally liable for either a narcotics or RICO conspiracy, the government must prove, essentially, only that the individual knowingly and willfully participated in the conspiracy.  The defendant’s withdrawal from the conspiracy, Smith reasons, negates this essential element, and requiring a defendant to negate an essential element of a crime impermissibly shifts the burden to him.

Smith relies heavily on Mullaney v. Wilbur, a 1975 decision in which the Court held that Maine had violated the Due Process Clause by requiring the defendant to prove that he acted in the heat of passion upon sudden provocation to reduce a murder charge to manslaughter.  The Court determined that evidence of heat of passion negated the element of malice aforethought; therefore, requiring the defendant to prove heat of passion as an affirmative defense relieved the state of the burden of proving malice.  The same reasoning, Smith contends, applies when he is required to prove his withdrawal from the conspiracy outside of the limitations period, because it relieves the government from having to prove that he was a participant in the conspiracy during that period.

Mullaney, however, is sui generis.  Just two years later, starting with Patterson v. New York in 1977, and in every subsequent case presenting the issue, the Court has consistently held that the government could require the defendant to shoulder the burden to prove affirmative defenses that appeared inconsistent with the elements of the crime.  In Patterson, the Court held that the defense of “extreme emotional disturbance” was properly assigned to the defendant and did not relieve the government from proving intent to kill or any other element of murder.  In Martin v. Ohio, the Court held that the government could place the burden of proving self-defense on the defendant; it is not required to prove the absence of self-defense.  Although the Patterson Court famously observed that “there are obviously constitutional limits beyond which the States may not go” in shifting the burden to prove affirmative defenses to the defendant, only Mullaney seems to have gone beyond those limits.

To synthesize this line of cases, and to align his case with Mullaney, Smith offers an elegant argument:  affirmative defenses such as self-defense and extreme emotional disturbance may relate to elements of the offense, but they do not necessarily negate them.  In other words, “the element and the affirmative defense can coexist.”  A defendant can simultaneously have intent to kill and act in self-defense, so the affirmative defense does not necessarily negate an element of the crime.  Here, Smith argues, his withdrawal from the conspiracy negates his participation, so the government must prove that he had not withdrawn, just as after Mullaney, it must also prove the absence of heat of passion.

In its brief, the government argues that withdrawal from a conspiracy is not only an affirmative defense on which Congress is free to put the burden on the defendant, it is moreover an affirmative defense within an affirmative defense, the statute of limitations.  (This clever argument, of course, is susceptible to the rebuttal that once the statute of limitations claim is raised, the government carries the burden to prove that the crime was within the limitations period.  The defendant carries the burden of production, but not the burden of persuasion.)

To support its argument that withdrawal is an affirmative defense, the government appeals to congressional intent and history.  When Congress enacted the narcotics and RICO conspiracy statutes in 1970, it did so against a background of federal court decisions that had repeatedly characterized withdrawal from a conspiracy as an affirmative defense, on which the defendant carried the burden of persuasion.  The proposition that the burden of persuasion rests with the government did not appear in the federal courts until 1981, when the Seventh Circuit issued its decision in United States v. Read, engendering the circuit split presented in this case.

The government further argues that Smith’s proposition in effect requires it to prove that the defendant committed an overt act.  A conspiracy is a continuing offense, and the government need only prove the existence of the conspiracy during the limitations period, not each defendant’s participation.  Once he agrees to participate, a defendant is presumed to continue in the conspiracy until he withdraws.  The only way to demonstrate that any given individual conspirator continued to participate is to prove an overt act taken during the limitations period; however, the narcotics and RICO conspiracy statutes do not require the government to prove an overt act for a conviction.

Finally, as a practical matter, the government argues that the pragmatic solution weighs in favor of assigning the burden of proof on the issue of withdrawal to the defendant, as he is in the best position to know the steps he took that were inconsistent with his participation, and the government is in a particularly poor position to prove that he did not communicate his withdrawal to his peers.  (For this proposition, the government quotes a 2012 law review article that Prof. R. Michael Cassidy and I authored.)


To prevail, Smith must convince the Court to apply the reasoning of Mullaney to hold that withdrawal from a conspiracy is an element that Congress cannot constitutionally assign to defendants (or at the very least, infer that Congress intended to make it an element, to avoid reaching the constitutional issue).  However, Smith’s bright-line rule for distinguishing elements from affirmative defenses – a proper affirmative defense can logically coexist with an element – may be fuzzier than he claims.   Consider Mullaney: a defendant can have malice aforethought and also be acting in the heat of passion.  The quintessential example – the man who finds his lover in bed with another and commits a homicide – certainly does intend to kill, but is excused from liability for murder anyway.   Even so, the Mullaney Court held that the government could not require the defendant to prove heat of passion upon sudden provocation without violating the Due Process Clause.  If the Court applies the same reasoning to the withdrawal defense, what principle distinguishes the permissible assignment of affirmative defenses?

Recommended Citation: Gregory Massing, Argument preview: Withdrawal from conspiracy – affirmative defense, or unconstitutional burden shifting?, SCOTUSblog (Nov. 1, 2012, 12:20 PM),