Smith v. United States

Citation568 U.S. 106,133 S.Ct. 714,184 L.Ed.2d 570
Decision Date09 January 2013
Docket NumberNo. 11–8976.,11–8976.
Parties Calvin SMITH, Petitioner v. UNITED STATES.
CourtUnited States Supreme Court

A.J. Kramer, Washington, DC, for Petitioner.

Sarah E. Harrington, Washington, DC, for Respondent.

A.J. Kramer, Federal Public Defender, Counsel of Record, Rosanna M. Taormina, Assistant Federal Public Defender, Washington, DC, for Petitioner.

Donald B. Verrilli, Jr., Solicitor General, Lanny A. Breuer, Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Sarah E. Harrington, Assistant to the Solicitor General, Counsel of Record, Stephan E. Oestreicher, Jr., Attorney, Department of Justice, Washington, DC, for Respondent.

Justice SCALIA delivered the opinion of the Court.

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.

I

Petitioner Calvin Smith was indicted for crimes connected to his role in an organization that distributed cocaine, crack cocaine, heroin, and marijuana in Washington, D. C., for about a decade. The 158–count indictment charged Smith and 16 alleged co-conspirators with conspiring to run, and actually running, an illegal drug business, as well as with committing acts of violence, including 31 murders, to further their goals. Smith was tried alongside five codefendants. A jury of the United States District Court for the District of Columbia convicted him of (1) conspiracy to distribute narcotics and to possess narcotics with the intent to distribute them, in violation of 21 U.S.C. § 846 ; (2) Racketeer Influenced and Corrupt Organizations Act (RICO) conspiracy, in violation of 18 U.S.C. § 1962(d) ; (3) murder in connection with a continuing criminal enterprise, in violation of 21 U.S.C. § 848(e)(1)(A) ; and (4) four counts of murder while armed, in violation of D.C.Code §§ 22–2401 and 22–3202 (1996).1

At issue here are Smith's conspiracy convictions. Before trial, Smith moved to dismiss the conspiracy counts as barred by the applicable 5–year statute of limitations, 18 U.S.C. § 3282, because he had spent the last six years of the charged conspiracies in prison for a felony conviction. The court denied his motion and Smith renewed his statute-of-limitations defense at trial. In the final jury charge, the court instructed the jury to convict Smith of each conspiracy count if the Government had proved beyond a reasonable doubt that the conspiracies existed, that Smith was a member of those conspiracies, and that the conspiracies "continued in existence within five years" before the indictment. App. 289a, 300a.

After it began deliberations, the jury asked the court what to do in the event that a defendant withdrew from the conspiracies outside the relevant limitations period.2 Smith had not yet raised an affirmative defense of withdrawal, so the court for the first time instructed the jury on the defense. The court explained that "[t]he relevant date for purposes of determining the statute of limitations is the date, if any, on which a conspiracy concludes or a date on which that defendant withdrew from that conspiracy." Id., at 328a. It defined withdrawal as "affirmative acts inconsistent with the goals of the conspiracy" that "were communicated to the defendant's coconspirators in a manner reasonably calculated to reach those conspirators." "Withdrawal," the court instructed, "must be unequivocal." Ibid. Over the defense's objection, the court told the jury that "[o]nce 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."Ibid. The jury then convicted Smith of the conspiracy crimes.

As relevant here, the Court of Appeals affirmed Smith's conspiracy convictions. Recognizing that the Circuits are divided on which party bears the burden of proving or disproving a defense of withdrawal prior to the limitations period, the court concluded that the defendant bears the burden of proof and that such a disposition does not violate the Due Process Clause. United States v. Moore, 651 F.3d 30, 89–90 (C.A.D.C.2011) (per curiam ). We granted certiorari. 567 U.S. ––––, 132 S.Ct. 2772, 183 L.Ed.2d 638 (2012).

II

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 (as discussed in this Part II), nor from the conspiracy and limitations statutes at issue (as discussed in Part III, infra ). Establishing individual withdrawal was a burden that rested firmly on the defendant regardless of when the purported withdrawal took place.

Allocating to a defendant the burden of proving withdrawal does not violate the Due Process Clause. While the Government must prove beyond a reasonable doubt "every fact necessary to constitute the crime with which [the defendant] is charged," In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), "[p]roof of the nonexistence of all affirmative defenses has never been constitutionally required," Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). 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." Martin v. Ohio, 480 U.S. 228, 237, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987) (Powell, J., dissenting). Where instead it "excuse[s] conduct that would otherwise be punishable," but "does not controvert any of the elements of the offense itself," the Government has no constitutional duty to overcome the defense beyond a reasonable doubt. Dixon v. United States, 548 U.S. 1, 6, 126 S.Ct. 2437, 165 L.Ed.2d 299 (2006).

Withdrawal does not negate an element of the conspiracy crimes charged here. The essence of conspiracy is "the combination of minds in an unlawful purpose." United States v. Hirsch, 100 U.S. 33, 34, 25 L.Ed. 539 (1879). To convict a defendant of narcotics or RICO conspiracy, the Government must prove 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).3 Far from contradicting an element of the offense, withdrawal presupposes that the defendant committed the offense. Withdrawal achieves more modest ends than exoneration. Since conspiracy is a continuing offense, United States v. Kissel, 218 U.S. 601, 610, 31 S.Ct. 124, 54 L.Ed. 1168 (1910), a defendant who has joined a conspiracy continues to violate the law "through every moment of [the conspiracy's] existence," Hyde v. United States, 225 U.S. 347, 369, 32 S.Ct. 793, 56 L.Ed. 1114 (1912), and he becomes responsible for the acts of his co-conspirators in pursuit of their common plot, Pinkerton v. United States, 328 U.S. 640, 646, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). Withdrawal terminates the defendant's liability for postwithdrawal acts of his co-conspirators, but he remains guilty of conspiracy.

Withdrawal also starts the clock running on the time within which the defendant may be prosecuted, and provides a complete defense when the withdrawal occurs beyond the applicable statute-of-limitations period.4 A complete defense, however, is not necessarily one that establishes the defendant's innocence. For example, we have held that although self-defense may entirely excuse or justify aggravated murder, "the elements of aggravated murder and self-defense [do not] overlap in the sense that evidence to prove the latter will often tend to negate the former." Martin, supra, at 234, 107 S.Ct. 1098; see Leland v. Oregon, 343 U.S. 790, 794–796, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952) (same for insanity defense). Likewise, although the statute of limitations may inhibit prosecution, it does not render the underlying conduct noncriminal. Commission of the crime within the statute-of-limitations period is not an element of the conspiracy offense. See United States v. Cook, 17 Wall. 168, 180, 21 L.Ed. 538 (1872). The Government need not allege the time of the offense in the indictment, id., at 179–180, and it is up to the defendant to raise the limitations defense, Biddinger v. Commissioner of Police of City of New York, 245 U.S. 128, 135, 38 S.Ct. 41, 62 L.Ed. 193 (1917). A statute-of-limitations defense does not call the criminality of the defendant's conduct into question, but rather reflects a policy judgment by the legislature that the lapse of time may render criminal acts ill suited for prosecution. See, e.g., Toussie v. United States, 397 U.S. 112, 114–115, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970). 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.

III

Of course, 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, supra, at 235, 107 S.Ct. 1098; see 4 W. Blackstone, Commentaries on the Laws of...

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