Where is Oliver Stone when you need him?

It was a sparsely populated day today at the Supreme Court. The press box was depleted. The crowd was thin. Perhaps everyone else was still stuck in line waiting to vote?

Yet despite the low turnout, the Supreme Court made a spirited journey to the very heart of our nation’s federal conspiracy law.

To see the issue the Court wrestled with in Smith v. United States, let’s start with a hypothetical….

Suppose Nate Silver and two other folks at the New York Times are engaged in conspiracy to release knowingly false information that overstates President Obama’s odds of reelection, just so they can manipulate the Intrade Odds that Obama will be reelected. The three are buying bets against Obama’s reelection for less than what they should be (they’re buying risky bets for the price of very risky ones).

It’s a dorky twist on the classic pump and dump scheme.

Let’s imagine that Nate Silver and his two co-conspirators – let’s call then Al and Bill – started two weeks ago.

On Sunday November 4, Bill withdrew from the conspiracy.

He wasn’t involved in the conspiracy yesterday, when Nate Silver predicted that there is a 92.2 percent likelihood that President Obama will be reelected.

Five years to the day from Nate Silver’s 92.2 percent prediction, on November 5, 2017, the federal government brings an indictment against Nate Silver, Al, and Bill, charging them with conspiracy to commit wire fraud (the trades were made through the wires, let’s assume).

The statute of limitations for such a conspiracy is five years.

Bill’s lawyer will want to argue that his client can’t be prosecuted because he didn’t commit a crime within the limitations period.

How will he make such an argument?

This is precisely the question in today’s case.

By way of background, a conspiracy for federal purposes is an agreement between two or more people to commit a crime, and an overt act in furtherance of that agreement. (There are some tweaks to that, but it’s tight enough for our purposes).

The statute of limitations is a little odd for conspiracy cases. While normally the crime has to be committed within the limitations period, for a conspiracy case, the government just has to show the conspiracy was up and running within the statute of limitations.

Withdrawal is also a little odd. It isn’t enough to say that you just stopped working with the co-conspirators. You, instead, have to show some affirmative act to withdraw from the conspiracy. For example, in this case, the man accused of being in the conspiracy was in prison. As Justice Scalia noted, merely being in prison isn’t enough to withdraw. Nor is being dissatisfied with the conspiracy and refusing to interact with it any more.

With that background, how will Bill’s defense work? The government wants Bill to have the burden to prove that he wasn’t involved during the limitations period.

A.J. Kramer, the Federal Public Defender for the District of Columbia, representing the man accused of a crime, argued that Bill would only have to raise a credible defense that he withdrew outside of the limitations period, then the government would have to prove beyond a reasonable doubt that Bill was still in the conspiracy within the limitations period.

Would the government have to prove that Bill did something within the limitations period, or is proving that he joined a conspiracy that continued into the limitations period enough?

Underneath it all was a difference about how federal conspiracy law works.

Justice Alito framed it nicely: in Bill’s view, continuing to participate in a conspiracy has to happen within the limitations period; in the government’s view, “conspiracies are such dangerous things” that once a conspiracy is set up, it runs and continues to be a crime until a person actively comes in to stop it.

The Chief Justice, counter to type, seemed disturbed by this. To the government he said:

“You don’t indict a conspiracy, you indict an individual. It isn’t clear to me why you don’t have to prove that he did something during the limitations period.”

Much time was spent debating what a trial will look like under a rule that the government has to prove a person was still in a conspiracy during the limitations period — Justice Scalia and the Chief Justice were worried this could burden the government.

Their concern was that in a trial the government would have to bring in evidence that the person didn’t withdraw; how would the government ever do that?

A.J. Kramer — a man with more than passing familiarity with federal criminal trial work — pointed out that in just about every case where a defendant takes the stand and says he didn’t do it, the government has the burden of proof that he did it — even beyond a reasonable doubt — yet the government is still able to get a conviction. And they often do it without introducing additional evidence against the person.

Like many folks convicted of a crime, the Justices seemed unable to understand how this could be so.

In the end, the Court appeared unable to divine what the rule should be. As Justice Breyer said, looking at this part of federal conspiracy law is like looking at the picture of a duck/rabbit — “is it a rabbit or is it a duck?”


Matt Kaiser is a lawyer at The Kaiser Law Firm PLLC, which handles complex civil litigation, white collar investigations, and federal criminal cases. On his blog, The Federal Criminal Appeals Blog, he writes about published opinions in criminal cases in the federal circuits where the defendant wins. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.


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