Commentary by San Diego Criminal Defense Lawyer Sam Spital:
“On January 9, 2013, the United States Supreme Court in a unanimous 9-0 opinion written by Justice Scalia in the case of Smith vs. U.S., (Case No. 11–8976 http://www.supremecourt.gov/opinions/12pdf/11-8976_k5fl.pdf), affirmed the decision of the U.S. Court of Appeals for the District of Columbia Circuit that held a defendant who had been charged with conspiracy to distribute narcotics and his role in an illegal drug business (RICO conspiracy) could not argue the charges were barred by the five (5) year Federal statute of limitations because he allegedly withdrew from the scheme. A conspiracy is deemed to continue until it is terminated or at the time a particular defendant withdraws, if at all. In this case, the Petitioner was in prison for the last six years of a criminal conspiracy that spanned over a decade. This was the basis for his argument that he could not be prosecuted since he had withdrawn from the conspiracy more than five years before the criminal indictment was filed.
However, the court concluded a defendant has the burden of proving the affirmative defense of withdrawal from the conspiracy by a preponderance of evidence, and it is not the obligation of the Assistant U.S. Attorney to prove a particular defendant participated in the conspiracy during the limitations period; further, this requirement did not violate the Due Process Clause of the U.S. Constitution. The Court ruled that ‘unless an affirmative defense negates an element of the crime, the Government has no constitutional duty to overcome the defense beyond a reasonable doubt.’ A defendant would not be liable for the acts of the co-conspirators after an actual withdrawal from a conspiracy. Based upon such a principle, the defense lawyer contended an element of the crime of conspiracy is one’s membership and, therefore, when one withdraws it negates that component. The Court held the contrary is true and the proposition that one has withdrawn from a conspiracy does not negate any element of the crime since it presupposes there indeed was a conspiracy. In other words, the conspiracy still took place, but it establishes the point in time at which a defendant is no longer liable.
In summary, in order for a defendant to have had a complete defense to the within conspiracy charges, he had to prove by a preponderance of evidence his withdrawal occurred outside of the applicable statute of limitations period of time.”