Calvin Smith was charged along with 16 others in a 156 count indictment alleging drug and RICO conspiracies in Washington D. C. He was charged in the conspiracy counts and with committing four murders. He appealed the conspiracy counts claiming that he left the conspiracy over five years prior to the indictment and therefore the statute of limitations had run and the convictions must be reversed.
It is clear that he did not participate in the conspiracy during the six year period prior to the indictment. He was in prison.
But the Supreme Court in Smith v. United States ruled today that lack of participation is insufficient to prove withdrawal from a conspiracy. Withdrawal requires “affirmative acts inconsistent with the goals of the conspiracy.” Furthermore, one can only withdraw from a conspiracy by giving notice to his/her co-conspirators of his/her unequivocal withdrawal. A person remains responsible for acts committed by the conspiracy prior to withdrawal as long as those acts occurred within the statute of limitations, i.e. within a five year period ending with the indictment.
Withdrawal is an affirmative defense and unlike evidence of a crime in which the burden is on the prosecution to prove beyond a reasonable doubt, the burden is on the defendant to prove the existence of an affirmative defense but it must only be proven by a preponderance of the evidence standard. That means that there is more evidence of the existence of the affirmative defense than there is evidence against the existence of the affirmative defense. Still it is a heavy burden to switch the burden of proof from the prosecution to the defendant.
The jury, after being correctly instructed on the law, found Smith guilty of the two conspiracy counts. Since the jury instruction properly defined the requirements for withdrawal from a conspiracy and the burden of proof, the Supreme Court upheld the conviction.
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