Proving Gang Retreat Is a Defense, Not Fed, Burden

     WASHINGTON (CN) – The government did not have the burden of proving a gang member’s continued participation in a criminal conspiracy, the U.S. Supreme Court ruled Tuesday.
     Calvin Smith is serving a life sentence after being charged with 16 alleged co-conspirators in a 158-count superseding indictment regarding crimes committed in the 1980s and 1990s.
     Prosecutors said pinned 31 murders to the drug-dealing enterprise in Washington, D.C.
     Smith claimed, however, that that the conspiracy counts against him failed under the five-year statute of limitations.
     In the last six years of the charged conspiracies, Smith had been in prison on an earlier felony.
     The trial judge would not dismiss the conspiracy counts on that basis, and the jury later found that Smith participated in the charged conspiracies, which “continued in existence within five years” before the indictment.
     The jury also found that Smith had not withdrawn from the conspiracies, relying on the court’s charge for Smith “to prove withdrawal from a conspiracy by a preponderance of the evidence.”
     Smith claimed on appeal that the government actually had the burden of disproving his withdrawal defense, but the D.C. Circuit disagreed and affirmed in July 2011.
     The U.S. Supreme Court agreed unanimously Wednesday.
     “Having joined forces to achieve collectively more evil than he could accomplish alone, Smith tied his fate to that of the group,” Justice Antonin Scalia wrote for the court. “His individual change of heart (assuming itoccurred) could not put the conspiracy genie back in the bottle. We punish him for the havoc wreaked by the un­lawful scheme, whether or not he remained actively in­volved. It is his withdrawal that must be active, and it was his burden to show that.”
     Smith had been convicted of narcotics conspiracy, violating federal anti-racketeering law, murder in connection with a continuing criminal enterprise and four counts of murder while armed.
     His conspiracy convictions alone went before the high court.
     In a footnote to the opinion, Scalia noted that the D. C. Circuit remanded two of the murder counts on which Smith had been convicted. The appellate panel wanted the District Court to conduct an evidentiary hearing regarding whether Smith received ineffective assistance of counsel as to those convictions.

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