Supreme Court resolves circuit split on proof of withdrawal from conspiracy: Smith v US

Earlier this month, the Supreme Court held that the burden of proving withdrawal from a criminal conspiracy rests with the defendant, even when the defendant’s withdrawal occurs outside of the statute of limitations period and thus would be a complete defence to prosecution.

The court’s unanimous decision resolves a split among the circuit courts on the issue. Although the underlying facts in Smith related to a drug trafficking conspiracy, the decision has antitrust implications because withdrawal is also an affirmative defence to a charge of conspiracy under Section 1 of the Sherman Act.

The defendant in Smith was charged with conspiracy based on his involvement in an illegal drug business. At trial, Smith argued that the conspiracy charges were barred by the five-year statute of limitations because he had been imprisoned on an unrelated offence for the past six years. The trial judge instructed the jury to convict Smith of the conspiracy count if the government had proven beyond a reasonable doubt that Smith was a member of the conspiracy and the conspiracy continued within the statute of limitations period. The jury convicted Smith, finding that he failed to prove by a preponderance of the evidence that he withdrew from the conspiracy before the limitations period began. The DC Circuit Court affirmed the instruction and conviction…

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