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A Crime Long Ago and Far Away: the Supreme Court Confronts Issues Surrounding Which Side Has the Burden of Proving “withdrawal” From a Criminal Conspiracy

Kish Law LLC

We have represented executives who worked years ago in businesses that are now under federal investigation for supposedly committing fraud and other white collar offenses. Because our clients left the business many years ago, we are closely following a case that might have a big impact on how we handle the matter. As most people know, crimes almost always are subject to what most people refer to as “the Statute of Limitations,” or “SOL”. In a few weeks the Supreme Court will hear arguments in a fascinating case involving the SOL. The main issue is whether a defendant who was in jail for more than the past 20 years can be forced to prove that he was no longer a member of and withdrew from a conspiracy that continued past the year 2000. The case is Smith v. United States.

The SOL means that once the limitations period has passed, prosecutors can no longer bring a case against a defendant. The general SOL in federal criminal cases says that the prosecutors must get an indictment within 5 years of a crime.

A subsidiary principle in SOL cases involves the idea of “withdrawal” from a conspiracy. Under this principle, a Defendant who is a member of a conspiracy can get out of the illegal agreement, but only if he does something to defeat the purposes of the conspiracy or lets the other members know that he is through with it. A Defendant who withdraws therefore is not guilty of the crime if he withdraws from the illegal agreement more than 5 years before the indictment was issued by the grand jury.

Mr. Smith has been in prison continually since 1990, except for about 16 months in 1993-94. During those 16 months prosecutors proved that he was a member of a far-flung and very violent drug gang in Washington, D.C. Mr. Smith went back to prison the last time on June 1, 1994. In the year 2000, federal prosecutors got an indictment which included a claim that Mr. Smith was a member of a conspiracy that started back in the early 1990’s and went up to 2000. Mr. Smith’s legal team argued that he had withdrawn from the conspiracy by virtue of being locked up for the 6 years preceding the day when the feds got their indictment.

The trial took 10 months. After 12 days of deliberation, the jury asked a very reasonable question: which side has the burden of proving whether a Defendant withdrew from a conspiracy? The trial judge told the jury that it was the Defendant who had the burden of proof, and furthermore, that he had to prove his withdrawal by a “preponderance” of the evidence, meaning it was more likely than not he had gotten out of the illegal agreement. In other words, the trial judge told the jurors that if they were 50% convinced that he had not withdrawn, then Smith was still guilty.

This issue has caused a big rift among the various federal courts of appeals, with 6 going one way, and 6 seeing it differently. The Supreme Court will address a series of questions in this important federal criminal appeal. First, under the Due Process Clause of the Fifth Amendment the prosecutors always have the burden of proof beyond a reasonable doubt for all “elements” of a crime. Because the existence and membership are elements of any federal conspiracy crime, Mr. Smith contends that it violates the Due Process Clause to make him disprove that he continued to be a part of the illegal gang. Second, the Supreme Court will confront a series of questions stemming from how to analyze the case if the trial judge made a mistake when telling the jury that Mr. Smith had the burden of proof. A very important case from a few years back written by Justice Scalia held that an erroneous instruction about the burden of proof means that the whole trial was tainted, regardless of how much evidence implicated the Defendant in question.

We think this is a very important federal criminal case, and will follow it closely.

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