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Smith v. US: Who Bears the Burden of Conspiracy Withdrawal?

By Robyn Hagan Cain on November 05, 2012 | Last updated on March 21, 2019

Can a defendant withdraw from a conspiracy and beat the conspiracy rap? Who bears the burden of proving, or disproving, withdrawal?

The circuits are split on this issue. While the Second, Fifth, Sixth, Tenth, and Eleventh Circuits have said that the burden of proving withdrawal always rests on the defendant, the First, Third, Fourth, Seventh, and Ninth Circuit have held that, once the defendant meets his burden of production that he has withdrawn prior to the relevant limitations period, the burden of persuasion shifts to the government. Now it's up the Supreme Court to resolve the split.

During the late 80s and 90s, Calvin Smith conspired with 14 cohorts to run a drug distribution business in Washington, D.C. In the course of conducting that business, various co-conspirators committed wide-ranging acts of violence, including 31 murders.

The feds obtained a 158-count indictment charging 15 defendants in the scheme with crimes ranging from conspiracy to murder. After a 10-month trial, the district court explained in the jury instructions: "If you find that the evidence at trial did not prove the existence of the narcotics conspiracy at a point in time continuing in existence within five years before May 5th, 2000 for defendant Calvin Smith, you must find the defendant not guilty of Count One."

After deliberating for nearly 12 days, the jury asked the court: "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 that defendant not guilty?"

Over Smith's objections, the district court told the jury that "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."

The jury returned verdicts of guilty on several of the charges, including the drug conspiracy, the RICO conspiracy. (There were also convictions like murder, witness tampering, and drug distribution, but they're irrelevant to the appeal before the Supreme Court.)

Smith argues that the district court erred in instructing the jury that he bore the burden of persuasion to show that he had withdrawn from the conspiracy. He believes that, because he met his burden of production to show that he withdrew from the charged conspiracy, due process required the government to prove beyond a reasonable doubt that he was a member of the conspiracy during the relevant period.

The D.C. Circuit Court of Appeals concluded that Smith had "the burden of proving that he affirmatively withdrew from the conspiracy if he wished to benefit from his claimed lack of involvement."

SCOTUSblog notes that, to prevail, Smith must convince the Court to apply the reasoning of Mullaney v. Wilbur to hold that withdrawal from a conspiracy is an element that Congress cannot constitutionally assign to defendants.

Do you think Smith can win? More importantly, should he?

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