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January 9, 2013

SCOTUS unanimously rules defendants have federal burden to prove withdrawal from conspiracy

As reported in this brief AP account of the ruling, today the US Supreme Court has said "it is up to defendants to prove they withdrew from criminal conspiracies in time to take advantage of a five-year statute of limitations on prosecution." The short unanimous ruling in Smith v. United States, No. 11–8976 (S. Ct. Jan. 9, 2013) (available here), was authored by Justice Scalia and it starts and ends this way:

Upon joining a criminal conspiracy, a defendant’s membership in the ongoing unlawful scheme continues until he withdraws.  A defendant who withdraws outside the relevant statute-of-limitations period has a complete defense to prosecution. We consider whether, when the defendant produces some evidence supporting such a defense, the Government must prove beyond a reasonable doubt that he did not withdraw outside the statute-of-limitations period....

Having joined forces to achieve collectively more evil than he could accomplish alone, Smith tied his fate to that of the group. His individual change of heart (assuming it occurred) could not put the conspiracy genie back in the bottle.  We punish him for the havoc wreaked by the unlawful scheme, whether or not he remained actively involved. It is his withdrawal that must be active, and it was his burden to show that.

January 9, 2013 at 10:55 AM | Permalink


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hmm guess we know who needs new copies of the United States Constitution.

Last time i looked it required the State bear the burdon of proof especialy in cases of Unconvicted Citizens!

Silly Me!

Posted by: rodsmith | Jan 9, 2013 11:18:42 PM

Doesn't withdrawal from conspiracy as a defense also require:

1) active interference with the conspiracy, such as snitching;

2) that arrest not be considered to be a withdrawal;

3) aren't there a dozen cases with the same holding already?

and, 4) the burden is on the person, except in RICO, where it is on the government.

From the fed prosecution manual:


Statute of Limitations for Conspiracy
Conspiracy is a continuing offense. For statutes such as 18 U.S.C. § 371, which require an overt act in furtherance of the conspiracy, the statute of limitations begins to run on the date of the last overt act. See Fiswick v. United States, 329 U.S. 211 (1946); United States v. Butler, 792 F.2d 1528 (11th Cir. 1986). For conspiracy statutes which do not require proof of an overt act, such as RICO (18 U.S.C. § 1961) or 21 U.S.C. § 846, the government must allege and prove that the conspiracy continued into the limitations period. The crucial question in this regard is the scope of the conspiratorial agreement, and the conspiracy is deemed to continue until its purpose has been achieved or abandoned. See United States v. Northern Imp. Co., 814 F.2d 540 (8th Cir. 1987); United States v. Coia, 719 F.2d 1120 (11th Cir. 1983), cert. denied, 466 U.S. 973 (1984).

An individual's "withdrawal" from a conspiracy starts the statute of limitations running as to that individual. "Withdrawal" from a conspiracy for this purpose means that the conspirator must take affirmative action by making a clean breast to the authorities or communicating his or her disassociation to the other conspirators. See United States v. Gonzalez, 797 F.2d 915 (10th Cir. 1986).

[cited in Criminal Resource Manual 651; USAM 9-18.000]

Posted by: Supremacy Claus | Jan 10, 2013 5:16:52 AM

Rod, where in the Constitution does it say that the State has the burden of proof? The answer is that it does not. The case law on burden of proof comes from the gloss that the Supreme Court has put on the due process clause, not from the express langauage of the Constitution. That gloss has mostly consistently held that the State has the burden of proof on the elements of the offense, but that a State can put the burden of proof on the defendant to prove affirmative defense -- and can, to some degree, define what is an element and what is an affirmative defense. Withdrawal is a classic affirmative defense which is why the vote was unanimous.

Posted by: tmm | Jan 10, 2013 9:59:24 AM

Well tmm since the govt continues to beat the hell out of us with the commerce clause. I figure turn about is fair place and we can beat them up with the due process clause.

Why shouldn't the side the most resources be required to supply any proof in a conflict!

In a trial the state says you did "X" fine PROVE IT!

Posted by: rodsmith | Jan 10, 2013 1:32:04 PM

tmm --

Nailed it.

Posted by: Bill Otis | Jan 10, 2013 1:32:15 PM

Not so fast boys.

The word, element, is from the catechism when used as a part of the analysis of a criminal act or a moral act. I would demand a mistrial if anyone uttered the "e" word in court. It is highly offensive to the Establishment Clause, Jews, Protestants, Muslims, all descendants of victims of the Inquisition 1.0. How intelligent lawyers allow the continuing use of this highly offensive word, is a measure of the effectiveness of the criminal cult indoctrination of 1L.

Posted by: Supremacy Claus | Jan 10, 2013 11:40:36 PM

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