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SUPREME COURT OF THE UNITED STATES
CALVIN SMITH, PETITIONER v.
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
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
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
that the conspiracies “continued in
existence within five years” before the indictment. App.
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
, 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
The jury then convicted Smith of the
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
, 651 F.3d 30,
89–90 (CADC 2011) (per curiam
). We granted certiorari.
567 U. S. ___ (2012).
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.
, 364 (1970), “[p]roof of the nonexistence of all
affirmative defenses has never been constitutionally
v. New York
, 432 U.S.
, 210 (1977). The State is foreclosed from shifting the
burden of proof to the defendant only “when an affirmative
negate an element of the crime.”
, 480 U.S.
, 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
, 548 U.S.
, 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.”
, 100 U.S.
, 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
, 218 U.S.
, 610 (1910), a defendant who has joined a conspiracy
continues to violate the law “through every moment of [the
conspiracy’s] existence,” Hyde
, 225 U.S.
, 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.
, 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
] 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.”
, at 234; see Leland
, 343 U.S.
, 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
is not an element of the conspiracy offense. See
, 17 Wall. 168, 180 (1872). The
Government need not allege the time of the offense in the
, at 179–180, and it is up to the
defendant to raise the limitations defense, Biddinger
Commissioner of Police of City of New York
, 245 U.S.
, 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.
, 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.
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.”
, 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.,
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
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
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
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.
v. United States
, 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.”
, 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
It is so ordered.