The Supreme Court yesterday delivered a major conspiracy decision in a non-tax case, holding that the defendant must prove the defense of withdrawal from the conspiracy. Smith v. United States, ___ U.S. ___, 2013 U.S. LEXIS 601 (2013), here. The decision is unanimous and is authored by Justice Scalia. Although not couched in this language, the Court held that, on the affirmative defense of withdrawal, the defendant bears the burden on persuasion (stated in risk terms, the risk of nonpersuasion). It is a very short opinion, so I encourage readers interested in the subject of withdrawal from a conspiracy or burdens imposed upon the parties in a criminal case with respect to affirmative defenses to read the opinion. I will introduce the opinion by the key excerpts from the Syllabus (page and case citations omitted):
Held: A defendant bears the burden of proving a defense of withdrawal.
(a) Allocating to the defendant the burden of proving withdrawal does not violate the Due Process Clause. Unless an affirmative defense negates an element of the crime, the Government has no constitutional duty to overcome the defense beyond a reasonable doubt. Withdrawal does not negate an element of the conspiracy crimes charged here, but instead presupposes that the defendant committed the offense. Withdrawal terminates a defendant’s liability for his co-conspirators’ post-withdrawal acts, but he remains guilty of conspiracy.
Withdrawal that occurs beyond the statute-of-limitations period provides a complete defense to prosecution, but does not render the underlying conduct noncriminal. Thus, while union of withdrawal with a statute-of-limitations defense can free a 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. Pp. 3-6.
(b) Although Congress may assign the Government the burden of proving the nonexistence of withdrawal, it did not do so here. Because Congress did not address the burden of proof for withdrawal in 21 U. S. C. §846 or 18 U. S. C. §1962(d), it is presumed that Congress intended to preserve the common-law rule that affirmative defenses are for the defendant to prove. The analysis does not change when withdrawal is the basis for a statute-of-limitations defense. In that circumstance, the Government need only prove that the conspiracy continued past the statute-of-limitations period. A conspiracy continues until it is terminated or, as to a particular defendant, until that defendant withdraws. And the burden of establishing withdrawal rests upon the defendant.
