Doublethink: The Impossibility of Withdrawing from Conspiracies

Doublethink means the power of holding two contradictory beliefs in one's mind simultaneously, and accepting both of them.

 - George Orwell

It is an axiom of due process that the government bears the burden to prove beyond a reasonable doubt every element of the charge and that that burden never shifts to the defendant.  Normally, when a defendant raises an affirmative defense, this requires the government to disprove that defense beyond a reasonable doubt in order to comport with due process of law.  In Smith v. United States, the Court changed the paradigm for conspiracy cases by declaring that because withdrawal of a conspiracy does not negate any element of the "conspiracy crimes" the defendant bears the burden of proof by a preponderance of the evidence to assert this affirmative defense.  

Unpacking that a bit: conspiracy (agreement to commit a crime with knowledge of that agreement where at least one participant takes a step in furtherance of the conspired act) is a crime separate and apart from the substantive offenses.  If the government has its quantum proof that an individual agreed to such an arrangement at any time, the defendant bears the burden - not of production of evidence that he withdrew from the agreement, but with a preponderance of the evidence of withdrawal from that agreement - because "withdrawal presupposes that the defendant committed the offense."  The Court did not explain how any defendant could possibly so demonstrate when his co-conspirators - to whom he needed to convey his withdrawal - are probably not talking.

In truth, ALL affirmative defenses presume that the defendant committed the offense; that is kind of the point.  Duress, insanity, and self defense all presume that action occurred; the element in question is the mens rea for those actions to be considered criminal.  Similarly, withdrawal of a conspiracy presumes that the defendant initially agreed but then changed his mind about participating and cannot be held responsible for the later intentional acts of others.  Affirmative defenses excuse or justify; they do not deny. 

For example, self defense provides a complete exoneration of wrongdoing.  For a defendant to obtain a jury instruction on self-defense, the evidence is viewed in the light most favorable to the defendant.  That is, the court need not believe the defense, but because it is a jury question, submission of any evidence to so suggest vaults this evidence over the bar of getting to the jury and receiving the benefit of the self defense jury instruction. In Massachusetts, there are two separate self defense instructions: one for deadly force and the other for non-deadly force.  The two standards are not equivalent: to justify the employment of deadly force (force intended or likely to cause death or great bodily harm), the actor must reasonably believe he was in danger of death or serious bodily harm; to justify the employment of nondeadly force (force neither intended nor likely to cause death or great bodily harm), the actor must have reasonably feared for his personal safety. But, the resulting injury is irrelevant to the analysis.

The burden to the defendant, however, is to raise even the slightest evidence to demonstrate that he acted out of self defense and that the force he used was appropriate given his legitimate fear in the moment.  Once he satisfies that burden of production, the prosecution must disprove that claim beyond a reasonable doubt to satisfy the burden of proof.  This is due process of law.  "Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In Re Winship, 397 U.S. 358, 364 (1970).  Intent is an element of the offense and a fact necessary to prove any crime.  Smith morphs the traditional burden of production into a burden of proof in contravention of all notions of due process of law.

 

Conspiracy itself consists of an agreement to commit wrongful acts where at least one of those who is party to the agreement takes an overt step in committing the underlying crimes.  The agreement and its continuing nature is an element of the offense.  Indeed, allegations of conspiracy so radically alter the rules of evidence and the notion of fair play that if the government can demonstrate by a preponderance of the evidence that a conspiracy existed, then statements of all other confederates are admissible against all involved in the conspiracy.  The rationale behind this is that statements in furtherance of a conspiracy are admitted not because of their reliability but because of the legal concept of agency, that co-conspirators speak with one voice. United States v. Inadi, 475 U.S. 387, 395 (1986); Bourjaily v. United States, 483 U.S. 171, 188 (1987) (Blackmun, J. dissenting).  And, to obtain submission of this type of evidence, the government need only demonstrate the agreement by a civil law standard.

The agreement to conspire creates a new world for the criminal venture linking everyone like a Borg and, according to the Court this continues ad infinitum until such point as the defendant can prove that he unequivocally conveyed to the other members of the conspiracy (even if he did not know them or what they were doing) that he was not interested any longer and that he could somehow - without violating the 5th Amendment privileges of all of those to whom he so conveyed - could prove this to a jury by a preponderance of the evidence.  As an aside, this is not and never has been the rule in Massachusetts where the defendant must raise an affirmative defense passing the ball to the government's court to disprove it beyond a reasonable doubt.

The Smith case presented two affirmative defenses: (1) the defendant presented evidence that he withdrew from the conspiracy outside the limitations period with no applicable tolling period and (2) the statute of limitations prevented prosecution for the conspiracy as to him. The withdrawal provides immunity for all acts after such withdrawal and the statute of limitations defense would bar prosecution outright.  For both, the defendant should be entitled to raise the defense with disproof by the government.  Yet,

[t]he State is foreclosed from shifting the burden of proof to the defendant only when an affirmative defense does negate an element of the crime.  Where instead it excuses 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.

Smith v. United States, slip. op. at *3 (emphasis in original, internal quotation marks and citations omitted).

That headsnap is called whiplash.  Mental state IS an element of the offense, any offense...that's what makes it criminal in the first place.  Affirmative defenses negate the mens rea of the crime in some capacity - even the statute of limitations affirmative defense so demonstrates as it infers the legislative directive that after a certain period of time, the defendant's inability to defend trumps the state's interest in prosecution.

Statutes of limitations primarily serve, in both equity and law, as statutes of repose.  In Toussie v. United States, 397 U.S. 112, 114 (1970), the Court stated that,

[t]he purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past.  Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity.  For these reasons and others, we have stated before the principle that criminal limitations statutes are to be liberally interpreted in favor of repose.  We have also said that statutes of limitations normally begin to run when the crime is complete. 

 Id. at 114 (internal quotation marks and citations omitted).

The most conservative interpretation is that statutes of limitation, legislative animals all, prohibit the executive branch from bringing any charges and admonish the judiciary from entertaining such charges.  In Smith, the Court manifestly alters the equation and states that while a statute of limitations "may inhibit prosecution, it does not render the underlying conduct noncriminal."  Well, duh - the underlying conduct WAS criminal but the state failed to prosecute it within its own self-prescribed timetable and therefore, no matter how criminal the acts, if the limitations period has run, the defendant cannot be prosecuted.  Not any more, at least not for conspiracies: "[c]ommission of the crime within the statute-of-limitations period is not an element of the conspiracy offense." Smith, slip.op. at *4 (emphasis in original).

In Stogner v. California, the Court reflected upon the resurrection of an offense after the statute of limitations had passed.  In its analysis under ex post facto jurisprudence, the Court stated that, “a statute of limitations reflects a legislative judgment that, after a certain time, no quantum of evidence is sufficient to convict.” Id.  That same year, in United States v. Jimenez Recio, the Court reaffirmed that the essence of conspiracy is the agreement. Combining those cases, one would presume that if the essence of the crime ceased to exist outside the limitations period, then the crux of the crime ended as to this individual and the government had no interest in prosecuting him.

A decade later the Court is saying something very different; it is looking to a preponderance of evidence related to guilt in deciding the efficacy of a procedural tool designed to protect the interests of due process of law and then declaring that subverting established due process is not a violation of the Constitution.   It makes virtually impossible the ability to demonstrate proof of withdrawal from a conspiracy once any proof of an original agreement occurs and it then ensnares all those accused of conspiracy at any point into every act committed by any conspirator.

Like all affirmative defenses, statutes of repose and limitation, by their own definition, presume that a criminal act occurred.  However, they also reflect a balance between society’s interest in prosecuting wrongdoing and an individual’s interest in having fair notice and the ability to defend himself against accusations which could deprive him of liberty.  Additionally, proof beyond a reasonable doubt of every element of the charge has consistently been presumed as a fundamental principle of due process.  The flippancy of this unanimous decision bodes poorly when considering the significant number of cases affecting individual liberties before the Court this term. 

Criminal conspiracy has always been troublesome, but this case adds an uncomfortable new barrier to defense.  It affirms that due process of law exists for everyone except for this defendant under these circumstances - two contradictory beliefs one is asked to hold simultaneously.  Maybe this one should be rethought.