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SUPREME COURT OF THE UNITED STATES
_________________
No. 11–8976
_________________
CALVIN SMITH, PETITIONER
v. UNITED
STATES
on writ of certiorari to the united states
court of appeals for the district of columbia circuit
[January 9, 2013]
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 defend- ant 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
contin- uing 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 un-
equivocal.”
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 dis- proving
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 (CADC
2011) (
per curiam). We granted certiorari. 567 U. S.
___ (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 de- fendant] is
charged,”
In re Winship,
397 U.S.
358, 364 (1970), “[p]roof of the nonexistence of all
affirmative defenses has never been constitutionally required,”
Patterson v.
New York,
432 U.S.
197, 210 (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 (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 (2006).
Withdrawal does not negate an element of the
conspir- acy 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 (1879). To convict a de- fendant of narcotics or RICO
conspiracy, the Govern- ment 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 (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 (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 (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; see
Leland v.
Oregon,
343 U.S.
790, 794–796 (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 (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 (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 legis- lature 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 (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; 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 Con- gress intended to preserve the common-law rule.
Dixon, 548 U. S., at 13–14.
That Congress left the traditional burden of
proof undisturbed is both practical and fair. “ ‘[W]here the
facts with regard to an issue lie peculiarly in the knowledge of a
party,’ ” that party is best situated to bear the burden of
proof.
Id., at 9. On the matter of withdrawal, the in-
formational asymmetry heavily favors the defendant. Pas- sive
nonparticipation in the continuing scheme is not enough to sever
the meeting of minds that constitutes the conspiracy. “[T]o avert a
continuing criminality” there must be “affirmative action
. . . to disavow or defeat the purpose” of the
conspiracy.
Hyde,
supra, at 369. The defendant knows
what steps, if any, he took to dissociate from his confederates. He
can testify to his act of withdrawal or direct the court to other
evidence substantiating his claim.[
5] It would be nearly impossible for the Gov- ernment to
prove the negative that an act of with- drawal never happened. See
9 J. Wigmore, Evidence §2486, p. 288 (J. Chadbourn rev. 1981) (“It
is often said that the burden is upon the
party having in form
the affirmative allegation”). Witnesses with the primary power
to refute a withdrawal defense will often be beyond the
Government’s reach: The defendant’s co-conspirators are likely to
invoke their right against self-incrimination rather than explain
their unlawful association with him.
Here again, the analysis does not change when
withdrawal is the basis for a statute-of-limitations defense. To be
sure, we have held that the Government must prove the time of the
conspiracy offense if a statute-of-limitations defense is raised.
Grunewald v.
United States,
353
U.S. 391, 396 (1957). But the Government satisfied that burden
here when it proved that the conspiracy continued past the
statute-of-limitations period. For the offense in these conspiracy
prosecutions was not the initial act of agreement, but the
banding-together against the law effected by that act, which
continues until termination of the conspiracy or, as to a
particular defendant, until that defendant’s withdrawal. And as we
have discussed, the burden of establishing that withdrawal rests
upon the defendant.
Petitioner’s claim that assertion of a
statute-of-limitations defense shifts that burden is incompatible
with the established proposition that a defendant’s membership in
the conspiracy, and his responsibility for its acts, endures even
if he is entirely
inactive after joining it. (“As he has
started evil forces he must withdraw his support from them or incur
the guilt of their continuance.”
Hyde, 225 U. S., at
369–370.) For as a practical matter, the only way the Government
would be able to establish a failure to withdraw would be to show
active participation in the conspiracy during the limitations
period.
* * *
Having joined forces to achieve collectively
more evil than he could accomplish alone, Smith tied his fate to
that of the group. His individual change of heart (assuming it
occurred) could not put the conspiracy genie back in the bottle. We
punish him for the havoc wreaked by the unlawful scheme, whether or
not he remained actively involved. It is his withdrawal that must
be active, and it was his burden to show that.
The judgment of the Court of Appeals is
affirmed.
It is so ordered.