Argument recap: If it walks like a rabbit-duck . . .

During Tuesday’s oral argument in Smith v. United States, the Court grappled with basic, yet complex, questions about the nature of criminal conspiracies, the difference between elements of crime and affirmative defenses, statutes of limitations, and burdens of production and persuasion.  The Court and counsel struggled, without much success, to identify apt analogies and comparisons, and to simplify the question before them.  But that question – whether withdrawal from a conspiracy more than five years before the date of the indictment, which would bring the crime outside of the federal statute of limitations, is an affirmative defense that the defendant can be required to prove, or whether participation in the conspiracy  within five years of the date of the indictment is instead an element of the offense that the government must prove beyond a reasonable doubt – eluded any simple answer, and the argument seemed to circle on the same unsolvable questions.  Justice Stephen Breyer, who found himself “torn,” at one point characterized the issue as being “like a rabbit-duck.  You know, is it a rabbit or is it a duck?”  Justice Antonin Scalia, unfamiliar with the rabbit-duck species, suggested helpfully, “It’s a jackalope, maybe.”

The petitioner in the case, Calvin Smith, received a life sentence for – among other things – murder, conspiracy to distribute narcotics, and Racketeer Influenced and Corrupt Organizations (RICO) conspiracy.  But although the conspiracies – which involved fifteen defendants – spanned over a decade, Smith was in prison for the last six years of that time, raising the issue of whether he could not be prosecuted for conspiracy because he had withdrawn from the conspiracy more than five years (the limitations period) before the indictment was filed in 2000.

A.J. Kramer, the Federal Public Defender for the District of Columbia, began his argument by emphasizing that Smith’s defense was the statute of limitations, not withdrawal, and that withdrawal merely triggers the statute of limitations.  In response to Justice Scalia, Kramer admitted that the statute of limitations is an affirmative defense, which does not have to be charged in the indictment and, accordingly, cannot be an element of the crime.  Justice Ginsburg added that in civil cases, the defendant bears the burden to plead and prove the statute of limitations as a defense.  Kramer responded that, in criminal cases, once the defendant raises the issue, the government must prove that a crime is within the limitations period.  He equated the statute of limitations with defenses such as entrapment and alibi, which the defendant raises, but which the government must overcome.

Kramer then moved to the main argument in his brief:  membership is an element of the crime of conspiracy, but withdrawal negates that element.  Justice Ginsburg challenged this assertion, noting that withdrawal does not reach back and negate the defendant’s conspiracy liability; instead, it merely establishes the end point of his liability for the actions of the conspiracy.

The Chief Justice noted that conspiracy is treated as a group offense:  once the government establishes that the conspiracy continued into the limitations period, it does not have to prove that each member participated during the limitations period.  Kramer countered that if the defendant raises the issue of withdrawal, the government must prove an overt act during the limitations period – exactly as the government’s brief had characterized Smith’s argument.

Justice Breyer, searching for an analogy without a statute of limitations issue, suggested The Thomas Crown Affair: if a defendant robs an art museum, but has an intent to return the stolen painting, would the burden shift to the defendant to prove he intended to return it?  Kramer answered that the burden would remain on the government to prove what it had to prove originally – that the defendant had the intent to permanently deprive.   By contrast, Kramer offered the defenses of self-defense and duress, which are affirmative defenses where the burden rests on the defendant because these defenses do not negate the elements of the crime.

Justice Breyer, however, asked why, if the burden remains with the defendant in those cases, it also shouldn’t remain in the context of withdrawal from a conspiracy, because the defendant is “the one most likely to know”?  Justice Ginsburg, Chief Justice Roberts,  and Justice Alito all voiced pragmatic concerns about the difficulty of requiring the government to prove that the defendant never withdrew from the conspiracy before the limitations period.

Justices Ginsburg and Alito both pointed out that the defendant’s argument changed the nature of withdrawal.  Justice Ginsburg noted that the government would have to prove membership in the conspiracy twice:  once at the outset of the conspiracy, and again after the point in time that the defendant claimed he withdrew.  Justice Alito said Kramer was asking the government to prove active participation in the conspiracy during the limitations period, rather then having the defendant show affirmative withdrawal.

Sarah Harrington, Assistant to the Solicitor General, argued the case for the United States.  In response to Justice Breyer’s question whether the government must prove that the defendant was a member of the conspiracy during the necessary time period, Ms. Harrington clarified that what Kramer referred to as the “membership” or “participation” element was actually the element of “agreement” – that he intentionally agreed to join the conspiracy.  The government does not have to prove that this agreement took place inside the limitations period, just that the conspiracy continued within five years of the indictment.  Justice Kagan pushed Harrington to explain why the government does not have to prove membership during the limitations period.  Ms. Harrington responded that, since the Court’s 1912 decision in Hyde v. United States,  it is established that if the defendant agrees to participate but then asserts that he took no action during the limitations period, he is still liable for the continuing conspiracy because he took no affirmative steps to withdraw.  This established definition of withdrawal necessarily implies that active participation is not an element.

Justice Breyer observed that the question was a “puzzle” that could be viewed either way –membership in the conspiracy during the limitations period could be an element that the government must prove, or withdrawal prior to the statute of limitations could be an affirmative defense for the defendant to prove.   Harrington responded that withdrawal does not negate membership, because membership is really “agreement”; in fact, the act of withdrawal confirms the prior agreement.

In response to questioning by Justice Sotomayor, Harrington conceded that the government always has the burden to prove that the crime took place within the limitations period if the issue is raised, but she insisted that the government does not have to prove that any individual defendant’s agreement happened in the limitations period or that the defendant had to do something “to sort of re-agree within the limitations period.”

Justice Kennedy observed that the government’s argument relied on the fact that conspiracy is a continuing offense, and Harrington added that in this case the conspiracy began outside of the limitations but was not complete until a time within the period; therefore, it “makes sense” to require the defendant to prove he took an affirmative act to establish that the conspiracy was complete as to him before the limitations period.  Justice Scalia agreed that it would be up to the defendant to prove that the statute of limitations barred his conviction.  Justice Breyer also expressed agreement with that proposition, but then pulled the rabbit-duck out of his hat and expressed concern about relieving the government of the burden of proving the crime beyond a reasonable doubt.

Justice Alito suggested another animal comparison: a conspiracy could be thought of as rounding up or setting loose “a pack of lions or wolves,” which continue to be a danger if you walk away and do nothing.   Ms. Harrington argued that law of conspiracy, and the defense of withdrawal, have long been interpreted that way.  At this point, the Chief Justice expressed concern about relying on proof that the conspiracy, rather than an individual’s participation, was within the statute of limitations period.

Justice Kagan asked how the government could contend that the statute of limitations is not an element when the government concedes it has the burden of proof on that issue?  Ms. Harrington said that the Court’s decisions in that regard seemed based on pragmatic factors – since the government must already prove the crime beyond a reasonable doubt, it does not impose much of an extra burden to require the government to prove when the crime occurred.  By the same token, a defendant should be required to prove withdrawal, since he is at a comparative advantage as to proving that contention.

When Kramer returned for rebuttal, Justice Alito observed that the “crux” of his argument is that the government must prove active participation during the limitations period, because it is impossible for the government to prove beyond a reasonable doubt that he did not withdraw at any time.  “It simply can’t be done.”  The defendant would have to be “under 24-hour video surveillance.”

Throughout oral argument, the concept of due process was barely mentioned.  If oral argument is any indication, this case appears to turn on exactly what kind of animal the Court determines it has in front of it: an element of active participation during the limitations period, or an affirmative defense of withdrawal outside of the limitations period?