Appeal History for Smith v. United States
by Amber Maccione
Smith v. United States
The question that arose out of the Smith v. United States case was, “Does withdrawing from a conspiracy prior to the statute of limitations period put the burden of persuasion on the government to prove beyond a reasonable doubt that the accused was a member of the conspiracy during the relevant period?” (Smith v. United States 2012). The Supreme Court has yet to argue it, but I find that the answer is yes based upon the 14th and 5th Amendments due process clauses as well as three previous cases (Winship, Mullaney, & Sullivan) where burden of proof and erroneous instruction to the jury were debated and the majority favored the government’s constitutional obligation to prove beyond a reasonable doubt.
During the 1980’s through the 1990’s, Smith and some other defendants were a part of two conspiracies [drug and RICO – racketeer influenced and corrupt organization] (“Supreme Court Rejects Confrontation Clause Challenge to Admission of Expert Testimony; Grants Cert on Conspiracy Issue.” 2012). Smith was charged with one count of conspiracy to distribute a controlled substance, one count of conspiracy to participate in RICO, two counts of continuing criminal enterprise murder, four counts of assault with intent to murder, four counts of first degree murder while armed, and three counts of using and carrying a firearm during a drug trafficking offense. Smith petitioned to have both conspiracy charges dropped because the statute of limitations (which is five years) had expired since Smith had withdrawn prior to the expiration of the limitations. Smith stated that his incarceration dates proved he was not a part of the conspiracies (incarcerated December 3, 1990 to March 9, 1993 and again from June 1, 1994 to the date of the trial, November 17, 2000). Smith claimed he had withdrawn from the conspiracy since he had been incarcerated over 6 years and was still incarcerated before his indictment of the conspiracy charges (Kramer 2012). Unfortunately, the District Court denied his petition on the grounds that the Grand Jury had found probable cause that the conspiracy had continued along with his membership within it.
For the trial, Smith’s defense team took an affirmative defense saying that he was not a member within the five year statute of limitations preceding his indictment. They showed his dates of incarceration as proof along with testimonial evidence that Smith had withdrawn from the conspiracy (Kramer 2012).
When the case went to the jury, the District Court instructed the jury that the government (the prosecution) had t prove beyond a reasonable doubt that the conspiracies continued within the statute of limitations (Kramer 2012). What the District Court failed to tell the jury was that the government also was constitutionally responsible for proving Smith’s membership (Kramer 2012). After twelve days of deliberating, the jury came back with a question that led to Smith appealing his case. The question was, “If we find that the Narcotics of RICO conspiracies continued after the relevant date under the statute of limitations, but that a particular defendant left the conspiracy before the relevant date under the statute of limitations, must we find that defendant not guilty?” (Kramer 2012). Smith lawyers answered yes, but the District Court answered no even after the prosecutor said they would take on burden (Kramer 2012). The District Court instructed the jury against Smith’s defense teams wishes that “once 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” (Kramer 2012). With that, Smith was convicted of seven of the eight charges resulting in a life sentence, on which his defense team appealed saying that the District Court had violated his due process right when they instructed the jury that the burden of persuasion/burden of proof fell upon the defendant instead of the government (Kramer 2012).
The appeals court was split fifty/fifty on the issue. Some said that the burden was on the defendant and others said that once the defendant met the burden of production, the burden of persuasion was put upon the government (Kramer 2012). The latter recognized that Smith’s 14th Amendment right of due process required the government to prove beyond a reasonable doubt his involvement and it was on them to disprove his withdrawal defense since the withdrawal defense negates the element of offense (Kramer 2012). Unfortunately, the court of appeals had to side with the District Court because their law held “albeit in the context of sentencing”, therefore saying that Smith had the burden of proof on is shoulders (Kramer 2012).
Burden of Proof Explained
The main issue of this case was where the burden of proof/burden of persuasion fell. According to Smith’s team, he only had to prove production and the government had to prove persuasion. They stated that Smith’s withdrawal negated his membership, which in turn places the burden on the government to disprove his withdrawal (Kramer 2012). With this, the answer to the issue must come from what the Constitution has to say. The lawyers brought up two amendments: the 14th and the 5th.
Both of these amendments (14th & 5th) protect the accused against conviction unless the prosecution can prove beyond a reasonable doubt that every fact points to the defendant being a part of the crime (“Proof, Burden of Proof, Presumptions” 2012). The proof beyond a reasonable doubt is the prime component that the statement “innocent until proven guilty” stands on – the presumption of innocence (“Proof, Burden of Proof, Presumptions” 2012). By having these guidelines in place, the accused is assured to have a fair trial and that the jury will only be allowed to use evidence presented in the trial to base their decision on (“Proof, Burden of Proof, Presumptions” 2012). In the Mullaney v. Wilbur case it was said that forcing the defendant to prove his in the “heat of passion” was violating his constitutional right (Massing 2012). Smith’s lawyer’s claimed that Smith was being violated against in the same manor by being asked to prove his withdrawal instead of the government being told to disprove (“Proof, Burden of Proof, Presumptions” 2012).
The 5th Amendment in Smith’s case applies to him being a witness for himself and having his testimony possibly cause him to incriminate himself (O’Toole 2012). If the burden of proof falls upon the defendant to prove his withdrawal instead of the government disproving, Smith would have to testify on the stand. This would essentially violate his constitutional right to plead the fifth.
The difference between the 14th and 5th Amendments is who they apply to. The 5th Amendment applies to the actions of the federal government whereas the 14th applies to that of the states (Davis 2008 p. 352). Therefore, the 14th Amendment would hold more weight in Smith’s case being that it has been decided so far at state level. The 14th Amendment states that people who are citizens of the United States can not be deprived of life, liberty, or property without due process (Davis 2008 p. 421, 423). The purpose of due process is to “ensure fair procedures when the government imposes a burden on an individual” (Davis 2008 p. 353). What the 14th Amendment does is protect the accused from being infringed upon by the government (Davis 2008 p. 419).
So how does the 14th and 5th Amendment apply to Smith’s case? In order for Smith to have a fair trial, the government must present all its evidence against Smith to the jury and court. They have the burden of proof on their shoulders to show that the conspiracies did occur, that there were acts to further the conspiracies, and that the defendant knowingly and intentionally became a member (United States v. Read 1981). Unfortunately, Smith’s team took the defense that he withdrew prior to the expiration of the statute of limitations therefore negating his membership. Hence, if the government wanted to prove he was a member, they would have to show evidence to disprove his withdrawal defense (burden of persuasion).
Due Process Explained
The Winship case is very important to Smith’s defense in that it states that the Due Process Clause of the 14th Amendment protects the accused from being convicted unless the government can prove beyond a reasonable doubt every fact necessary to say that this person was a part of the crime he is being accused of. Winship established the preponderance of evidence. (O’Toole 2012). Basically, the evidence had to be greater to prove Smith’s membership than Smith’s withdrawal. If the evidence pointed more so to his membership than the government had met its constitutional obligation of proving beyond a reasonable doubt that Smith was a part of the conspiracy during the statute of limitations time period.
As brought up earlier, the Mullaney case debated the issue of burden of persuasion by asking the defendant to prove he acted in the heat of passion when he committed murder (Massing 2012). The Supreme Court found in this case that holding the defendant responsible for the burden of proof violated his right to due process. They stated that it was the state’s constitutional obligation to disprove his defense of acting in the heat of the moment (Mullaney v. Wilbur 2012). With this, Smith shouldn’t have to prove his withdrawal since that is his defense. Instead, it is on the government to disprove that he withdrew. Their evidence must show that based on his behavior and acts, withdrawal never happened.
In the Read case, it was said that withdrawal from a conspiracy prior to the statute of limitations period negates the knowingly participated element of membership. Therefore, the burden of persuasion rests upon the government to disprove (O’Toole 2012). Further, all the defendant must do is give rise to the fact that he withdrew (meeting the burden of production). Once a defendant gives a defense that negates an element he is being charged with (in Smith’s case conspiracy), it is the government who must disprove his defense and therefore have to meet the burden of persuasion (O’Toole 2012). In the outcome of the Read case, it was stated that if the instructions to the jury were erroneous, than the conviction couldn’t stick unless the government was able to disprove beyond a reasonable doubt that withdrawal didn’t happen (United States v. Read 1981). In Smith’s case, the District Court had failed to inform the jury that the government had to disprove Smith’s defense of withdrawal beyond a reasonable doubt. The only thing that the District Court instructed the jury upon was that the government had to prove beyond a reasonable doubt Smith’s membership and that it was on Smith to prove his withdrawal (Kramer 2012). Based on the Read case, Smith’s conviction on the counts of conspiracy should be thrown out because the instructions to the jury were erroneous.
A Supreme Court case that supports the Read case and which was used in the appeal to the Supreme Court for Smith is the Sullivan v. Louisiana case. In this case, the Supreme Court looked at the issue of harmless error when it came to instructions given to the jury about proving beyond a reasonable doubt. The Supreme Court reversed the lower courts decision of it being a harmless error to that of it being an error that effected the defendant’s right to a beyond a reasonable doubt jury (Schubert 2012). With Smith’s case, the District Court had instructed the jury only partly in regards to proving beyond a reasonable doubt. The District Court failed to instruct the jury that it was the government’s constitutional obligation to disprove Smith’s withdrawal defense.
Who Should Have the Burden?
Should Smith have to prove he withdrew or should the Prosecution have to disprove he withdrew?
What this all boils down to is whether placing the burden of persuasion on the defendant instead of the government would violate the defendant’s constitutional rights of due process. If due process says that it is the government who has a constitutional obligation to prove beyond a reasonable doubt within the statute of limitations and withdrawal happened before the statute of limitations ended than the due process clause would place the burden of persuasion in the government’s hands. The government would have to disprove Smith’s defense of withdrawal – the burden of persuasion.
The rebuttal to this is that the withdrawal defense is an affirmative defense; hence the government is free to push the burden onto the defense to prove that they did some act to show they withdrew (Massing 2012). Unfortunately, the Read & the Sullivan cases introduced a new burden, that of persuasion. Basically, once the defense fulfills burden of production (which they did by showing Smith had been incarcerated during the statue of limitations), it was on the government to disprove its withdrawal defense (burden of persuasion) (Massing 2012). Therefore, in the case of Smith v. United States, the decision of the District Court should be reversed on the grounds that the burden of persuasion falls into the government’s hands to disprove Smith’s withdrawal based on the Due Process clauses stated in our Constitution.
(1970) In Re Winship. Retrieved from http://www.foofus.net/~foofus/lawSchool/criminal/InReWinship.html
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(2012) Mullaney v. Wilbur. US Supreme Court Center.Retrieved from http://supreme.justia.com/cases/federal/us/421/684/
(2012) “Proof, Burden of Proof, Presumptions.” U.S. Constitution: 14th Amendment. Find Law. Retrieved from http://caselaw.lp.findlaw.com/data/constitution/amendment14/16.html
(18 June 2012) “Supreme Court Rejects Confrontation Clause Challenge to Admission of Expert Testimony; Grants Cert on Conspiracy Issue.” 2012 Lastest News Archieves. www.fd.org. Retrieved from http://www.fd.org/ods-other/latest-news-archives/2012-latest-news-archives
(16 October 2012) Smith v. United States. The Oyez Project at IIT Chicago-Kent College of Law. Retrieved from http://www.oyez.org/cases/2010-2019/2012/2012_11_8976
(2 November 2012) Smith v. United States. Scotus Blog. Retrieved from http://www.scotusblog.com/case-files/cases/smith-v-united-states-2/
Davis, S. (2008). Corwin and Peltason’s Understanding the Constitution (17th ed.).
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Kramer, A.J. (20 August 2012). “On Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit: Brief for Petitioners.” Smith & Reynor v. the United States. American Bar Association. Retrieved from http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/11-8976_pet.authcheckdam.pdf
Massing, G. (1 November 2012). “Argument preview: Withdrawal from conspiracy – affirmative defense, or unconstitutional burden shifting?” Scotus Blog. Retrieved from http://www.scotusblog.com/?p=154591
O’Toole, T. (27 August 2012). “On Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit: Brief of Amicus Curiae the National Association of Criminal Defense Lawyers in support of Petitioners supporting reversal.” Smith & Reynor v. the United States. American Bar Association. Retrieved from http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/11-8976_petitioner_amcu_nacdl.authcheckdam.pdf
Schubert, F. (2012) “Sullivan v. Louisiana.” Introduction to Law and the Legal System (8th Ed.) Cengage Learning. Retrieved from http://college.cengage.com/polisci/schubert/law_legal_process/8e/students/cases/08.html
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