Petitioner Calvin Smith was involved in a criminal drug distribution organization and imprisoned for a related murder in 1994. In 2000, a grand jury brought indictments against him. Smith defended his two conspiracy charges on the grounds that the statute of limitations barred his conviction because he had withdrawn from the conspiracy more than five years ago. The trial court directed the jury that the burden of proof was on Smith as defendant to prove withdrawal by a preponderance of the evidence. Smith claims his participation in the conspiracy during the statutory period is a necessary element of his crime that the government must prove. Additionally, since withdrawal and participation are mutually exclusive, his withdrawal would negate an essential element of the government's case against him. The United States argues that withdrawal is an affirmative defense, and the burden of proof lies with the defendant. This case will define the boundaries of Due Process Protection in conspiracy cases and similar cases involving amorphous and on-going criminal activity.
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.
Whether requiring the defendant to bear the burden of proving withdrawal from a conspiracy as an affirmative defense violates Due Process.
During the late 1980s and 1990s, Petitioner Calvin Smith, along with several others, engaged in criminal behavior constituting drug distribution. See United States v. Moore, 651 F.3d 30, 39 (D.C. Cir. 2011). Smith and his co-conspirators committed thirty-one murders in furthering this criminal enterprise. See id. Smith was incarcerated beginning on June 1, 1994, for shooting Maurice Willis, a crime that is part of this case. See Brief for Respondent, United States at 4. On November 17, 2000, a federal grand jury brought a 158-count indictment against Smith and other co-conspirators, alleging charges such as drug conspiracy, RICO conspiracy, continuing criminal enterprise, murder, and more. See id.; Moore, 651 F.3d at 39.
Under 18 U.S.C. § 3282, a defendant may not be tried for a noncapital offense committed more than five years prior to the indictment. See Moore, 651 F.3d at 65. Based on this statute, Smith moved pretrial to dismiss the conspiracy charges—one count of conspiracy to distribute controlled substances and one count of conspiracy to participate in a Racketeer Influenced Corrupt Organization—alleged against him. See Brief for Petitioner, Smith at 2. The trial court refused to dismiss the charges, stating that the Grand Jury must have found probable cause to believe that Smith’s involvement in the conspiracies occurred within the statute of limitations period. See Brief for Respondent at 5.
The case proceeded to trial and the central issue in this case arose during jury deliberation. See Moore, 651 F.3d at 89. The jury asked the court whether they must find a defendant not guilty if he left the Narcotics or RICO conspiracies prior to the five-year statute of limitations period. See id. The trial court responded that where the United States has proven a defendant to be a part of a conspiracy, the defendant bears the burden to prove that he did so in fact withdraw. See id. Smith objected to the district court’s response, arguing that due process requires the government to bear the burden of proving that the defendant was a part of the conspiracy at issue once he met his burden of production that he withdrew from the conspiracy. See id.
The United States Circuit Court of Appeals for the D.C. Circuit[JL12] , on July 29, 2011, disagreed with Smith, affirming the trial court on the point. See id. at 90. Although acknowledging a circuit split on this issue, the court wrote that their precedent, albeit in the context of sentencing, requires that the defendant bore the burden of proving that he affirmatively withdrew from a conspiracy. See id. Smith’s request for a rehearing was denied on November 30, 2011. See Brief for Respondent at 1. The Supreme Court granted Smith’s petition for certiorari in part on June 18, 2012. See id.
The dispute in this case revolves around whether the defendant, or the United States, bears the burden of proof in establishing whether a defendant left a conspiracy. See Brief for Petitioner at I. Smith argues that shifting this burden to the defendant is an improper violation of his due process rights because this allows the government to shift the burden of proof pertaining to an element of the offense. See Brief for Petitioner at 31. The United States responds by arguing that, because Congress has not specified who bears this burden, the court's job is to identify which party Congress would have assigned this burden to had they done so. See Brief for Respondent at 18. This case will affect what kinds of cases the government decides to prosecute and those conspiracy cases that deal with factual questions dating deep into the statute of limitations.
Smith argues that putting the burden of proof of withdrawal of the conspiracy outside of the statute of limitations period on the defendant, in cases like these where evidence can be up to five or ten years old, violates his due process concern to the extent that such evidence will not be easily attainable. See Brief for Petitioner at 50-51. Smith argues that putting the burden of proof on the defendant is an impermissible violation of a defendant’s constitutional rights because it will require the defendant to defend himself using evidence that may have already been obscured by time. See id. In addition, Smith contends that there is already the extra hurdle placed in front of the defendant in conspiracy cases who must show that he affirmatively left the conspiracy. See id. at 51. Smith points out that the statute of limitations represents a policy judgment as to when evidence is insufficient to convict; therefore, placing the burden of proof on the defendant under these circumstances would run contrary to legislative intent. See id. at 50.
Respondent, the United States, responds by noting that because of this extra hurdle, the defendant is necessarily in a better position to bear this burden due to his own personal knowledge of the situation. See Brief for Respondent at 25-26. Furthermore, the United States asserts that due to the secretive nature of conspiracies, placing the burden of proof on the government may make acquiring evidence more difficult than it would be for the defendant. See id. at 29. The United States contends that requiring the government to bear the burden of proof creates the nonsensical situation in which a defendant may introduce only enough evidence to meet his burden of production, and subsequently invoke the 5th amendment for himself and among his co-conspirators to prevent adequate prosecution, and thus carrying the burden of proof, against the defendant. See id. at 27-28. The United States points out that this would contravene the clear purpose of the withdrawal defense, which is to provide an incentive to the defendant to leave the conspiracy and weaken the group. See id. at 29.
Protecting Defendants or the Public?
The National Association of Criminal Defense Lawyers (“NACDL”) filed a brief on behalf of Smith, arguing that the due process guarantee of the reasonable doubt standard in criminal prosecutions would be weakened by not requiring the prosecution to prove a key fact-i.e. withdrawal-beyond such a reasonable doubt. See Brief of Amicus Curiae National Association of Criminal Defense Lawyers (“NACDL”) in Support of Petitioner at 3-5. The NADCL asserts that an outcome that places the burden of proof on the defendant would weaken the corrective function that the standard was suppose to serve, and further disadvantage the defendant in a situation that already favors the prosecution. See id. at 4. Also, the NACDL contends that a co-conspirator may be held liable for the acts of the other co-conspirators, making the need for a strong reasonable doubt standard even more important to prevent given the prosecution an unfair advantage. See id. at 11-13.
The United States responds by arguing that the unique public dangers created by a joint criminal enterprise provides one reason why the government should only have to prove that there was a conspiracy; withdrawal should be left to the defendant. See Brief for Respondent at 31-32. Moreover, the United States contends that to decide otherwise would overprotect the defendant, and increase the societal risk that guilty people may go free. See id. at 29–30. The United States argues that assigning the burden of proof to the government would weaken conspirators’ motivation to withdraw from the joint criminal enterprises. See id. at 29.
The Due Process Clause states no person shall be deprived of life, liberty, or property without due process of law. One of the fundamental precepts of due process requires the government to prove each element of an offense beyond a reasonable doubt. See Brief of Amicus Curiae National Association of Criminal Defense Lawyers ("NACDL") in support of Petitioners at 2. Here, Smith contends withdrawing from a conspiracy before the statute of limitations negates an element of the conspiracy offense that the government is required to prove. See Brief for Petitioners, Calvin Smith and John Raynor at 21. Alternatively, the government counters that they proved all necessary elements of the conspiracy, and that withdrawal from the conspiracy is an affirmative defense that places the burden of persuasion on the defendant. See Brief for Respondent, United States at 13. The central legal dispute in the case centers around the application of the statute of limitations. See id. at 23-24. Depending on how the statute of limitations is applied, withdrawal from the conspiracy may be either an affirmative defense or a negating defense. This distinction in turn determines who has the burden of proof in this case.
DIFFERING INTERPRETATIONS OF THE STATUTE OF LIMITATIONS
Smith argues that his withdrawal from the conspiracy negates an essential element of the offense, his membership in the conspiracy. See Brief for Petitioners, Calvin Smith and John Raynor at 30-31. Smith claims that the statute of limitations defines the only relevant time period within which the government can prosecute him, and therefore the relevant time period for the criminal actions in question. See id. at 19. Thus, Smith believes the statute of limitations functions to set the outer boundaries of when the offense must have occurred. See id. at 20. Therefore, Smith argues his withdrawal from the conspiracy more than five years ago is a negating defense that negates an essential element, his participation. See id. at 25-26. If this is true, Smith argues requiring him to prove his withdrawal impermissibly shifts the burden of proof on an essential element and violates his rights. See id. at 31. Smith believes, due to the restrictions the statute of limitations places on when the government can prosecute him for his crimes, that the government must inherently prove beyond a reasonable doubt not only that each element of the crime was committed, but also that each element was committed within the limitations period. See id. at 24. Smith contends that since participation is the only element tying Smith to the conspiracies, it is a critical piece of the government's Due Process burden that they prove his membership, and specifically within the five year statutory period. See id. at 25-28.
Respondent, the United States, argues that both Smith’s withdrawal and the statute of limitations are affirmative defenses that historically require the burden of proof to fall on the defendant. See id. at 20-21. The United States believes they do not need to prove facts about the limitations period because timing is not a statutory element of the offense. See id. at 37. Moreover, the United States contends that because time is not an essential element of the crime, they do not need to allege any facts relating to the statute of limitations in their indictment, unless it’s to respond to the defendant. See id. Furthermore, the United States points out that the reasoning in past cases do not support the defendant’s position, and do not mention the limitations period as an element of conspiracy. See id. at 38. Rather, the United States asserts that because the statute of limitations is traditionally an affirmative defense, the question of the timing of the activities in question is a point for the defendant to raise. See id. at 37-38. The United States explains that once a conspiracy forms, it continues until its objectives are complete, at which point the statute of limitations begins. See id. at 14–15. Since a member is presumed to be a perpetual member unless they withdraw, the United States claims they have carried their burden against Smith by proving that he was a member of these conspiracies at one time, and that the conspiracies continued into the statutory period. See id. at 17. The United States asserts that these two facts create a presumption that Smith was still a member of the conspiracy at all times. See id. Therefore, the United States contends that Smith's withdrawal claims are therefore a defense introduced to refute this presumption, and the burden of proving this defense should fall to him. See id. at 18.
BURDEN OF PROOF FOR VARIOUS DEFENSES
Smith argues that if the government is required to prove his active participation during the statutory period, his claim of withdrawal before this period is a negating defense, which is evidence that directly refutes this element of their burden. See Brief for Petitioners, Calvin Smith and John Raynor at 21. Since a negating defense directly undermines or contradicts an essential part of the government’s case, Smith argues that Due Process dictates the United States, not the defendant, should still carry the burden of proof for this sort of defense. See id. at 35-36. In support of his argument, Smith points out that similar cases have made the distinction between the burden of producing evidence to raise the issue of someone’s innocence and the burden of proving someone guilty, and noted that it must be treated differently. See id. at 46–47. This means that Smith contends he should have the burden of producing the evidence that he withdrew, but not the ultimate burden of proving it. See id. at 47. This way, Smith argues, the burden of proving guilt or disproving the defendant’s withdrawal would remain with the United States to prove he was a member of the conspiracy during the statutory. See id. at 49. Smith argues that if his withdrawal is a negating defense, the alternative of requiring him as defendant to prove a negative, namely that he was not a member of the conspiracy, would shift this burden of proof and violate Due Process. See id. at 40-41.
By contrast, the United States argues that and they do not need to prove Smith’s participation during the statute of limitations period because Smith’s arguments are affirmative defenses instead of negating defenses. See Brief for Respondent, United States at 32-33. The United States cites significant legislative and case history illustrating the established rule that the statute of limitations is an affirmative defense. See id. at 39. Additionally, the United States asserts that Smith's particular withdrawal argument is also an affirmative defense because it does not weaken the evidence that he was a part of the conspiracy, but rather just invokes a statutory bar for prosecuting him for these actions. Id. at 43. The United States then argues that it is settled practice that the burden of proof for affirmative defenses falls on the defendant. See id. at 25. The United States contends that requiring a defendant to bear the burden of proof for affirmative defenses is a long-standing common law rule, and Congress has the ability to assign the burden of proof for affirmative defenses. See id. at 18. The United States argues that in instances such as the present, where Congress does not specify the affirmative defenses available, the common-law applies. See id. at 25. Therefore, the United States asserts that the burden of proof is on the defendant. See id.
The Supreme Court’s holding will determine whether Smith's Due Process rights were violated, and who has the burden of proof in similar conspiracy cases in the future.
The Supreme Court’s decision in this case will decide the current 5-5 split in the Circuit courts regarding who holds the burden of proof concerning withdrawal from a conspiracy. If the Court agrees with Smith, and withdrawal negates an essential element of the crime, the government will have the burden of proving defendants were still members of conspiracies during the statutory period in future cases. This would require the government to prove a defendant was a member of an ongoing conspiracy, and would require they carry their burden of proof despite any evidence presented regarding withdrawal. If the court sides with the government, however, withdrawal and the statute of limitations will be held affirmative defenses, requiring the burden of proof to fall on the defendant to prove, by a preponderance of the evidence, that he had withdrawn from the conspiracy prior to the statutory period.