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Conspiracy – burden of proof on defendant’s claim of withdrawal

Smith v. U.S., USSC 11-8976, 1/9/13

United States Supreme Court decision, affirming United States v.Moore, 651 F.3d 30 (D.C. Cir. 2011)

Conspiracy – burden of proof on defendant’s claim of withdrawal

Petitioner’s claim lies at the intersection of a withdrawal defense and a statute-of-limitations defense. He asserts that once he presented evidence that he ended his membership in the conspiracy prior to the statute-of-limitations period, it became the Government’s burden to prove that his individual participation in the conspiracy persisted within the applicable five-year window. This position draws support neither from the Constitution.., nor from the conspiracy and limitations statutes at issue…. Establishing individual withdrawal was a burden that rested firmly on the defendant regardless of when the purported withdrawal took place. (Slip op. pp. 3-4).

As the Court explains, allocating to a defendant the burden of proving withdrawal does not violate the Due Process Clause. While the state must prove beyond a reasonable doubt every fact necessary to constitute the crime charged, proof of the nonexistence of affirmative defenses has never been constitutionally required. Instead, the state is foreclosed from shifting the burden of proof to the defendant only when an affirmative defense does negate an element of the crime. Withdrawal does not negate an element of the conspiracy crimes in this case, which required proof beyond a reasonable doubt that two or more people agreed to commit a crime covered by the specific conspiracy statute (that a conspiracy existed) and that the defendant knowingly and willfully participated in the agreement (that he was a member of the conspiracy). Thus, “[f]ar from contradicting an element of the offense, withdrawal presupposes that the defendant committed the offense.” (Slip op. pp. 4-5).

As to the fact that withdrawal starts the time limits for prosecution running, commission of the crime within the statute-of-limitations period is not an element of the conspiracy offense. Moreover, the state need not allege the time of the offense in the indictment, and it is up to the defendant to raise a statute-of-limitations defense. “Thus, although union of withdrawal with a statute-of-limitations defense can free the defendant of criminal liability, it does not place upon the prosecution a constitutional responsibility to prove that he did not withdraw. As with other affirmative defenses, the burden is on him.” (Slip op. pp. 5-6).

Finally, the Court holds, the federal conspiracy statute does not give the state the burden:

Congress may choose to assign the Government the burden of proving the nonexistence of withdrawal, even if that is not constitutionally required. It did not do so here. “[T]he common-law rule was that affirmative defenses . . . were matters for the defendant to prove.” Martin [v. Ohio, 480 U.S. 228,]235 [(1987)]; see 4 W. Blackstone, Commentaries on the Laws of England 201 (1769). Because Congress did not address in 21 U. S. C. §846 or 18 U. S. C. §1962(d) the burden of proof for withdrawal, we presume that Congress intended to preserve the common-law rule….

As noted in our post on the Court’s grant of certiorari, federal circuit courts had divided on the question of which party bears the burden of proving or disproving a defense of withdrawal prior to the limitations period. The Seventh Circuit has taken Smith’s side of the argument, United States v. Read, 658 F.2d 1225, 1233 (7th Cir. 1981) (“Withdrawal, then, directly negates the element of membership in the conspiracy during the period of the statute of limitations. Under Patterson, Mullaney, and Winship, the government should disprove the defense of withdrawal beyond a reasonable doubt.”) This decision, therefore, changes the law in this Circuit.

It does not, however, change state practice.  Long-settled state procedure places the burden on the state to disprove an affirmative defense, even though that burden could as a matter of federal due process be placed on the defendant. The leading case on this point is Moes v. State, 91 Wis. 2d 756, 768, 284 N.W.2d 66 (1979): “Though we conclude that the federal due process clause does not require the state to disprove beyond reasonable doubt the statutory defense of coercion, this burden is imposed upon the state as a matter of Wisconsin law.”

Under Wis. Stat.  § 939.05(2)(c), there is a defense for withdrawal from a conspiracy in the context of a prosecution for being party to a crime. Based on that statute, JI-Criminal 412 (2008) (“Party to Crime: Withdrawal from a Conspiracy”) tells the jury it must “consider whether the defendant withdrew from the conspiracy before the crime was committed.” It is inserted in the relevant substantive conspiracy instruction (i.e., JI-Criminal 410 or 411) which would then also include, in the statement of what the jury must decide, the directive that the state must prove the defendant did not withdraw from the conspiracy. According to the Jury Instruction Committee’s Comment to 412:

The Committee concluded that withdrawal should be handled in the same manner as other affirmative defenses under Wisconsin law. The burden of production is on the defendant to introduce or point to “some evidence” tending to show withdrawal. If that showing is made, the burden of persuasion is on the State to prove beyond a reasonable doubt that withdrawal did not occur. As to the general rules in Wisconsin relating to “affirmative defenses,” see  Moes v. State, 91 Wis. 2d 756, 284 N.W.2d 66 (1979) and State v. Felton, 110 Wis. 2d 485, 329 N.W.2d 161(1983).

Finally, note there is no direct authority regarding whether withdrawal is a defense to the inchoate crime of conspiracy under Wis. Stat.  § 939.31, but the Jury Instruction Committee has concluded, based on cases addressing solicitation and attempt, that it is not a defense because the statute do not provide  for it. See JI-Criminal 570 (2008), Comment at p. 4.

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