Whether withdrawing from a conspiracy prior to the statute of limitations period negates an element of a conspiracy charge such that, once a defendant meets his burden of production that he did so withdraw, the burden of persuasion rests with the government to prove beyond a reasonable doubt that he was a member of the conspiracy during the relevant period — a fundamental due process question that is the subject of a well-developed circuit split.
Lower court opinion (651 F.3d 30 (D.C. Cir. 2011))
Smith challenges a jury instruction 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.” He argues that, because he met his burden of production on withdrawal form the conspiracy, the government was then required as a matter of due process to prove beyond reasonable doubt that he was in fact a conspirator during the relevant period. Lower courts have apparently reached opposing conclusions (illustrating yet again that an irreconcilable split in authority is the best argument in favor of cert-grant). The question seemingly turns on whether withdrawal from the conspiracy negates an element (thus requiring disproof beyond reasonable doubt of withdrawal) or something more in the nature of an affirmative defense (which, consistent with due process, the defendant may be made to prove). The Seventh seems to have taken Smith’s side of the argument, United States v. Read, 658 F.2d 1225, 1233 (7th Cir. 1981) (“Withdrawal, then, directly negates the element of membership in the conspiracy during the period of the statute of limitations. Under Patterson, Mullaney, and Winship, the government should disprove the defense of withdrawal beyond a reasonable doubt.”) An adverse result, therefore, will impact law in this Circuit.
What about state practice? Take a look at the pattern instruction, “Withdrawal from a Conspiracy” (JI-Crim No. 412 (2005)). The text of the instruction informs the jury it must “consider whether the defendant withdrew from the conspiracy before the crime was committed.” A tad less than elucidating on which side has the burden of proving what, no? The Committee Comment, however, is more enlightening:
The Committee concluded that withdrawal should be handled in the same manner as other affirmative defenses under Wisconsin law. The burden of production is on the defendant to introduce or point to “some evidence” tending to show withdrawal. If that showing is made, the burden of persuasion is on the State to prove beyond a reasonable doubt that withdrawal did not occur. As to the general rules in Wisconsin relating to “affirmative defenses,” see Moes v. State, 91 Wis.2d 756, 284 N.W.2d 66 (1979) and State v. Felton, 110 Wis.2d 485, 329 N.W.2d 161 (1983).
In other words, long-settled state procedure places on the State the burden of disproving an affirmative defense, even though that burden could as a matter of federal due process be placed on the defendant. (Take a look at the discussion in Moes, the seminal case on this point: “Though we conclude that the federal due process clause does not require the state to disprove beyond reasonable doubt the statutory defense of coercion, this burden is imposed upon the state as a matter of Wisconsin law,” 91 Wis. 2d at 768.) As a result, the outcome of this cert grant is unlikely to affect state practice, at least as presently understood.
