No. 11-8976

IN THE

Supreme Court Of The United States___________

CALVIN SMITH AND JOHN RAYNOR,Petitioners,

v.

UNITED STATES OF AMERICA,Respondent.

___________On Writ of Certiorari to the

United States Court of Appealsfor the District of Columbia Circuit

___________

BRIEF OF AMICUS CURIAETHE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERSIN SUPPORT OF PETITIONERS

SUPPORTING REVERSAL___________

TIMOTHY P. O’TOOLECounsel of Record

JEFFREY HAHNMILLER & CHEVALIERCHARTERED655 Fifteenth St., N.W.Suite 900Washington, D.C. 20005(202) 626-5800Email: totoole@milchev.com

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QUESTION PRESENTED

Whether withdrawing from a conspiracy prior tothe statute of limitations period negates an elementof a conspiracy charge such that, once a defendantmeets his burden of production that he did sowithdraw, the burden of persuasion rests with thegovernment to prove beyond a reasonable doubtthat he was a member of the conspiracy during therelevant period.

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TABLE OF CONTENTS

QUESTION PRESENTED ....................................... i

INTEREST OF AMICUS CURIAE ......................... 1

SUMMARY OF ARGUMENT.................................. 2

ARGUMENT ............................................................ 3

I. The Requirement that the ProsecutionProve Guilt Beyond a Reasonable DoubtIs a Criminal Defendant’s ForemostSafeguard Against a WrongfulConviction...................................................... 3

II. By Relieving the Prosecution fromHaving to Prove that Mr. SmithParticipated In the Conspiracy Duringthe Limitations Period, the D.C.Circuit’s Opinion Highlights the VeryImbalance the Reasonable DoubtStandard Serves to Correct........................... 8

A. Mr. Smith’s Withdrawal DefenseNegated the “Participation”Element of Conspiracy ....................... 8

B. Requiring the Defendant to ProveWithdrawal Makes DefendantsEven More Vulnerable toBaseless Conspiracy Convictions..... 10

C. Relieving Prosecutors of TheirBurden to Prove a Defendant’sMental State Is UniquelyPrejudicial to Defendants................. 14

CONCLUSION....................................................... 17

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TABLE OF AUTHORITIES

Page(s)CASES

Bartoli v. United States,192 F.2d 130 (4th Cir. 1951) ............................ 12

Harris v. New York,401 U.S. 222 (1971)............................................. 7

Jackson v. Virginia,443 U.S. 307 (1979)............................................. 3

Krulewitch v. United States,336 U.S. 440 (1949)......................................10, 11

Leland v. Oregon,343 U.S. 790 (1952)............................................. 3

Morissette v. United States,342 U.S. 246 (1952)........................................... 14

Mullaney v. Wilbur,421 U.S. 684 (1975)......................................14, 16

Pinkerton v. United States,328 U.S. 640 (1946)......................................12, 13

Sullivan v. Louisiana,508 U.S. 275 (1993)............................................. 3

United States v. Brodie,403 F.3d 123 (3d Cir. 2005) .............................. 11

United States v. Dazey,403 F.3d 1147 (10th Cir. 2005)......................... 11

United States v. Hansen,256 F. Supp. 2d 65 (D. Mass 2003), aff’d,434 F.3d 92 (1st Cir. 2006) ............................... 13

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United States v. Moore,651 F.3d 30 (D.C. Cir. 2011)............................... 8

United States v. Read,658 F.2d 1225 (7th Cir. 1981) ............................ 9

United States v. Scallion,533 F.2d 903 (5th Cir. 1976) ............................ 12

United States v. Shabani,513 U.S. 10 (1994)............................................. 12

United States v. Sklena,No. 11-2589 (7th Cir. Aug. 23, 2012) ............... 13

Whitfield v. United States,543 U.S. 209 (2005)........................................... 12

In re Winship,397 U.S. 358 (1970)........................................3, 10

STATUTES

18 U.S.C. § 1956..................................................... 12

21 U.S.C. § 846....................................................... 12

OTHER AUTHORITIES

Fed. R. Evid. 801.................................................... 11

Sup. Ct. Rule 37 ....................................................... 1

American Bar Association, Standards ForCriminal Justice,Prosecution Function §3-3.9,http://www.americanbar.org/publications/criminal_justice_section_archive/crimjust_standards_pfunc_blk.html#3.9 (lastvisited Aug. 23, 2012) ......................................... 5

Donald A. Dripps, The Constitutional Statusof the Reasonable Doubt Rule, 75 Calif. L.Rev. 1665 (Oct. 1987).......................................... 6

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Abraham S. Goldstein, Conspiracy toDefraud the United States, 68 Yale L.J.405 (1959).......................................................... 11

Mark Noferi, Towards Attenuation: A ‘New’Due Process Limit on PinkertonConspiracy Liability, 33 Am. J. Crim. L.91 (2006)............................................................ 13

Scott E. Sundby, The Reasonable Doubt Ruleand the Meaning of Innocence, 40Hastings L.J. 457 (Mar. 1989)............................ 4

Brian W. Walsh and Tiffany M. Joslyn,Without Intent: How Congress is Erodingthe Criminal Intent Requirement inFederal Law, at IX (Apr. 2010),http://www.nacdl.org/criminaldefense.aspx?id=10287&terms=withoutintent..............15, 16

INTEREST OF AMICUS CURIAE

The National Association of Criminal DefenseLawyers (“NACDL”) is a non-profit association ofcriminal defense lawyers with a nationalmembership of more than 10,000 attorneys.1 Aspractitioners representing clients in criminal trialsthroughout the federal and state court system,NACDL has a keen interest in ensuring that everycourt, no matter the jurisdiction, holds theprosecution to its constitutional burden ofestablishing beyond a reasonable doubt eachelement of a criminal charge. The reasonable doubtstandard is a criminal defendant’s most effectivecounter-weight to the many advantages enjoyed bythe prosecution. Because the decision of the courtbelow, and others with which it is in agreement,threatens to dilute this vital protection in caseswhere a defendant properly raises the defense ofwithdrawal from a conspiracy prior to the statute oflimitations (and potentially in other cases in whicha defendant raises an element-negating defense),this case is of the utmost interest to NACDL.

1 Pursuant to Sup. Ct. Rule 37.2(a), counsel of record for allparties received notice of the intent of amicus curiae to file abrief at least 10 days prior to the due date. Also pursuant toSup. Ct. Rule 37.2(a), a letter of consent from each partyaccompanies this filing. Pursuant to Sup. Ct. Rule 37.6,amicus states that no counsel for a party authored this briefin whole or in part, and no person or entity, other thanamicus and its counsel, made a monetary contribution to thepreparation or submission of this brief.

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SUMMARY OF ARGUMENT

The requirement that the prosecution proveeach element of the offense beyond a reasonabledoubt is perhaps the single most importantsafeguard against wrongful convictions. Thisrequirement is in many respects “the greatequalizer,” returning a semblance of balance to acriminal justice process in which a lone individualmust face the awesome investigative, charging andprosecutorial powers of the state. But where thegovernment is absolved from having to disprove aproperly raised element-negating defense, thisbalance is impermissibly skewed in favor of thegovernment, which has a significantly strongerhand with respect to all aspects of the criminalprocess.

The problem is particularly acute in casesinvolving conspiracy, a notoriously vague offensethat hinges largely on a criminal defendant’smental state, affords the prosecution significantevidentiary advantages, and subjects defendants toliability for acts they did not personally commit. Asa result, the district court’s withdrawal instructionin this case – which effectively absolved theGovernment from having to prove beyond areasonable doubt that Mr. Smith participated inthe conspiracies in question within the limitationsperiod – serves only to further imperil defendantsfaced with conspiracy charges. As practitioners, weurge the Court to examine this problem closely andto restore the proper constitutional equilibrium onthis important issue.

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ARGUMENT

I. The Requirement that the ProsecutionProve Guilt Beyond a Reasonable DoubtIs a Criminal Defendant’s ForemostSafeguard Against a WrongfulConviction

“[T]he duty of the Government to establish. . . guilt beyond a reasonable doubt,” Justice

Frankfurter wrote, is “basic in our law and rightlyone of the boasts of a free society.” Leland v.Oregon, 343 U.S. 790, 802-03 (1952) (Frankfurter,J., dissenting). It “provides concrete substance forthe presumption of innocence – that bedrock‘axiomatic and elementary’ principle whose‘enforcement lies at the foundation of theadministration of our criminal law,’” and is thus “aprime instrument for reducing the risk ofconvictions resting on factual error.” In re Winship,397 U.S. 358, 363 (1970) (citation omitted). ThisCourt in Winship thus confirmed that “the DueProcess Clause protects the accused againstconviction except upon proof beyond a reasonabledoubt of every fact necessary to constitute thecrime with which he is charged.” Id. at 364.Indeed, the reasonable doubt standard is soimportant to the integrity of a criminal trial that“failure to instruct a jury on the necessity of proofof guilt beyond a reasonable doubt can never beharmless error.” Jackson v. Virginia, 443 U.S. 307,320 n.14 (1979); see also Sullivan v. Louisiana, 508U.S. 275, 281 (1993) (explaining that “amisdescription of the burden of proof . . . vitiates allthe jury’s findings.”).

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This Court’s constitutional enshrinement ofthe reasonable doubt standard, however, is notgrounded in mere theory or rhetoric, but rather inthe recognition that it stands as the single mostimportant corrective to the structuraldisadvantages faced by criminal defendants. Andthose disadvantages are many.

To build its case, the prosecution has behindit the investigatory capabilities and resources of thepolice and the subpoena power of the grand jury.In contrast, court-appointed lawyers who representthe bulk of criminal defendants often have crushingcaseloads and minimal investigative resources,leaving them with neither the time nor the fundingfor anything approaching the government’sinvestigation of the case. The reasonable doubtrequirement mitigates this stark disparity byholding the prosecution’s evidence to the strictest ofstandards.

But even where the prosecution’s evidence isthin, simply being charged with a criminal offensecan be a stigma unto itself, no matter the eventualoutcome. Here too, the reasonable doubtrequirement protects individuals underinvestigation from the black mark of an unfoundedcriminal charge by ensuring that prosecutors bringonly their most meritorious cases. Scott E. Sundby,The Reasonable Doubt Rule and the Meaning ofInnocence, 40 Hastings L.J. 457, 458 (Mar. 1989).The American Bar Association’s Standards forCriminal Justice require prosecutors to considerthe likelihood of conviction in making theircharging decision, a calculus that depends in largepart on where the burden of proof lies. Specifically,Standard 3-3.9(a) provides that “[a] prosecutor

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should not institute, cause to be instituted, orpermit the continued pendency of criminal chargesin the absence of sufficient admissible evidence tosupport a conviction.” See American BarAssociation, Standards For Criminal Justice,Prosecution Function § 3-3.9,http://www.americanbar.org/publications/criminal_justice_section_archive/crimjust_standards_pfunc_blk.html#3.9 (last visited Aug. 23, 2012). If, as inthis case, a critical disputed fact upon which aconviction turns is one that the prosecution neednot prove beyond a reasonable doubt (here, thatMr. Smith’s membership in the conspiracy occurredduring the limitations period, despite Mr. Smith’sintroduction and elicitation of significant facts attrial suggesting he withdrew from the conspiracybefore the onset of the limitations period), aprosecutor may well be more likely to bring a casethat she otherwise would not.

The reasonable doubt standard is also acritical equalizer in the context of plea bargaining.Every criminal defendant faces the same choice: goto trial and risk the possibility of a potentiallysevere punishment, or opt for the guarantee of amore lenient sanction through a plea agreement.In making this decision, a key factor is thedefendant’s assessment of the prosecution’s case,the strength of which directly correlates with theburden of proof. If the prosecution is relieved of itsfull constitutional burden as to a fact essential toconviction, a defendant may be more likely to plea.The reasonable doubt rule thus reduces thepressure defendants face to plead guilty to crimesthey did not commit.

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Once a case proceeds to trial, defendants alsoface evidentiary disadvantages for which thereasonable doubt requirement compensates. Asvirtually every prosecutor reminds jurors inopening statements, prosecutors represent the“people,” the “state,” or “the United States,” andclaim the mantle of the community in a way thattends to make jurors believe that prosecutors cometo the case solely to do justice. By contrast, giventhe potential life-changing repercussions of acriminal conviction, criminal defendants begin theircases with their own interests front and center.This has many consequences for the criminal trial,the most important of which is that a criminaldefendant’s most compelling (and perhaps sole)exculpatory evidence – his own testimony – isinherently tainted by the defendant’s interest inself-preservation. The trier of fact is thus likely todiscount even the most credible and reliableexculpatory testimony offered by the accused. SeeDonald A. Dripps, The Constitutional Status of theReasonable Doubt Rule, 75 Calif. L. Rev. 1665, 1695(Oct. 1987). And this is before accounting for themyriad other factors unrelated to a defendant’sguilt or innocence that can diminish thedefendant’s credibility in the eyes of the fact finder,such as a prior conviction, or simply whether thedefendant appears nervous or unlikeable. Placingthe burden of proof squarely, and solely, on theprosecution puts the onus on the prosecution’sevidence, and ensures that the defendant’ssubjective credibility or objective bias does notbecome the issue upon which the case turns.

Not only is a criminal defendant’sexculpatory testimony potentially counter-productive as an evidentiary matter, but putting

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defendants in the position where they feel theyhave no choice but to offer such testimony impingeson the Fifth Amendment. This Court has madeclear that “[e]very criminal defendant is privilegedto testify in his own defense, or to refuse to do so.”

Harris v. New York, 401 U.S. 222, 225 (1971)(emphasis added). But where guilt or innocenceturns on a fact that the prosecution is absolvedfrom having to disprove, and for which the onlyevidence is the defendant’s own testimony, adefendant effectively cannot refuse to testify in hisown defense, since the alternative is likely to be aprison term. Ensuring that the prosecution is heldfully to its constitutional burden of proving eachelement beyond a reasonable doubt thus giveseffect to the Fifth Amendment’s testimonialprivilege.

In short, the prosecution’s burden to proveguilt beyond a reasonable doubt offers vitalprotections to defendants at virtually every stage ofthe criminal justice process, from chargingdecisions, to plea agreements, to the conduct oftrials themselves. Diluting the reasonable doubtrequirement, therefore, would increase the numberof defendants charged with crimes they did notcommit, increase the likelihood that defendantswill plea to such crimes, and increase the pressureon defendants to offer their own testimonialevidence despite their Fifth Amendment rights.

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II. By Relieving the Prosecution fromHaving to Prove that Mr. SmithParticipated In the Conspiracy Duringthe Limitations Period, the D.C.Circuit’s Opinion Highlights the VeryImbalance the Reasonable DoubtStandard Serves to Correct

The District Court’s withdrawal instructionin this case absolved the Government from havingto prove beyond a reasonable doubt an elementessential for a conspiracy conviction. While that isproblematic – and unconstitutional – in any case, itis particularly troubling in this case, where thecrime is conspiracy, and the omitted element isrelevant to the defendant’s mens rea. Conspiracycases offer the Government unique advantagesunavailable in other cases, and present defendantswith equally unique perils; if balance needs to berestored in any direction, it is on the side ofdefendants, not the Government. And while mensrea requirements are meant to protect defendantsfrom unwarranted conviction, they have beenmarkedly diluted in recent years, a trend that theD.C. Circuit’s opinion will serve only to exacerbate.

A. Mr. Smith’s Withdrawal DefenseNegated the “Participation”Element of Conspiracy

As an initial matter, even the D.C. Circuitacknowledged that “when a defendant raises (bymeeting his burden of production) a defense thatnegates an element of the charged offense, thegovernment bears the burden of persuasion todisprove [that] defense.” United States v. Moore,651 F.3d 30, 89 (D.C. Cir. 2011). This rule is

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compelled by simple logic: where a properly raiseddefense negates an element of the charged crime,the prosecution necessarily cannot prove thatelement “beyond a reasonable doubt” withoutdisproving the defense. Demanding that theprosecution disprove an element-negating defense,therefore, ensures that the prosecution hassatisfied its constitutional burden of proof.Conversely, where the prosecution need notdisprove a defense even if it negates an element ofthe charged crime, the prosecution is relieved of itsburden to establish every element beyond areasonable doubt.

Not even the Government can dispute thatthe defense at issue in this case – withdrawal froma conspiracy prior to the statute of limitationsperiod – directly negates the “knowinglyparticipated” element of the two conspiracy offenses(a narcotics conspiracy and a RICO conspiracy)with which Mr. Smith was charged. With respectto the narcotics conspiracy, the district courtinstructed the jury that the Government mustprove beyond a reasonable doubt “that a particulardefendant knowingly and willfully participated inthe conspiracy . . . .” J.A. 287-91. The district courtsimilarly told the jury that a RICO conspiracyrequires “that the particular defendant . . .knowingly and intentionally agreed with anotherperson to conduct or participate in the conduct ofthe affairs of the enterprise.” J.A. 298. Of course, adefendant who has withdrawn from a conspiracyprior to the statute of limitations period cannot alsohave “participated” in it during the limitationsperiod; the two are mutually exclusive. See UnitedStates v. Read, 658 F.2d 1225, 1233 (7th Cir. 1981)(“Withdrawal, then, directly negates the element of

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membership in the conspiracy during the period ofthe statute of limitations.”).

Thus, after Mr. Smith met his burden ofproduction that he withdrew from the conspiraciesprior to the statute of limitations period, theGovernment at that point could not possibly haveproven “beyond a reasonable doubt” that Mr. Smithparticipated in the conspiracies during thelimitations period unless it disproved Mr. Smith’swithdrawal defense. Nevertheless, the districtcourt excused the prosecution from having to doexactly that, and instead foisted on Mr. Smith theburden of proving his withdrawal defense by apreponderance of the evidence, and in so doingviolated his Due Process rights. Whileunconstitutionally shifting the burden to thedefendant to prove an element-negating defenseincreases “the risk of convictions resting on factualerror” in any type of case, In re Winship, 397 U.S.358, 363 (1970), it is particularly dangerous here,where the crime is conspiracy, and the elementconcerns the defendant’s mental state.

B. Requiring the Defendant to ProveWithdrawal Makes DefendantsEven More Vulnerable to BaselessConspiracy Convictions

The district court’s withdrawal instruction, ifapproved by this Court, would vest in theprosecution yet another advantage among themany it already enjoys in cases chargingconspiracy, “that elastic, sprawling and pervasiveoffense.” Krulewitch v. United States, 336 U.S. 440,445 (1949) (Jackson, J., concurring). Even 60 yearsago, when conspiracy law was still in its early

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stages, Justice Jackson recognized that “loosepractice as to [conspiracy] constitutes a seriousthreat to fairness in our administration of justice.”Id. at 446. That was true then; it is equally truenow.

First, given the secrecy associated withconspiracy and the perceived difficulty in provingits central act – an agreement – prosecutors areafforded significant evidentiary advantages. Toprove an agreement, the prosecutor need notproduce evidence of a formal offer and acceptance(or “meeting of the minds”); rather, “[t]he elementsof conspiracy . . . can be proven entirely bycircumstantial evidence.” United States v. Brodie,403 F.3d 123, 134 (3d Cir. 2005). The jury thus“may infer conspiracy from the defendants’ conductand other circumstantial evidence indicatingcoordination and concert of action.” United Statesv. Dazey, 403 F.3d 1147, 1159 (10th Cir. 2005). Asa result, “the illusory quality of agreement isincreased by the fact that it, like intent, mustinevitably be based upon assumptions about whatpeople acting in certain ways must have had inmind.” Abraham S. Goldstein, Conspiracy toDefraud the United States, 68 Yale L.J. 405, 410(1959). In addition, the Federal Rules of Evidenceexempt from the hearsay rules a co-conspirator’sout-of-court statements. See Fed. R. Evid.801(d)(2)(E). With such relaxed evidentiarystandards, the prospect that a jury will wrongfullyconvict a defendant in a conspiracy case based ontenuous evidence and untested out-of-courtstatements increases markedly.

Compounding matters is the inchoate natureof conspiracy, which often results in the merger of

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the crime’s mens rea and actus reus requirements,making the prosecution’s job even easier. This isbecause with conspiracy, “the criminal agreementitself is the actus reus.” United States v. Shabani,513 U.S. 10, 16 (1994). And as explained above, anagreement, seeing as it almost never takes the formof a formal agreement or written document, hingesalmost entirely on inferences regarding adefendant’s intentions and state of mind. The sameconduct, therefore – often, a defendant’s words –can serve both to prove his guilty mind and guiltyconduct. Id. While some conspiracy crimes, to besure, also require the prosecution to prove an overtact, many do not. See, e.g., id. at 17 (holding that“proof of an overt act is not required to establish aviolation of 21 U.S.C. § 846,” i.e., Title I drugconspiracies); Whitfield v. United States, 543 U.S.209, 219 (2005) (“we hold that conviction forconspiracy to commit money laundering, inviolation of 18 U.S.C. § 1956(h), does not requireproof of an overt act”). But even for the crimes forwhich an overt act is required, it hardly levels theplaying field, since virtually anything can serve asan “overt act.” See United States v. Scallion, 533F.2d 903, 911 (5th Cir. 1976) (holding thattraveling to another city is an overt act); Bartoli v.United States, 192 F.2d 130 (4th Cir. 1951) (holdingthat a phone call is an overt act).

While all of this would be troubling on itsown, it is even more so because of the consequencesa conspiracy conviction carries. Under Pinkerton v.United States, 328 U.S. 640 (1946), a defendantconvicted of conspiracy can be held vicariouslyliable for all “reasonably foreseeable” crimes of hisco-conspirators. While the foreseeability

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requirement, in theory, is meant to assure a degreeof connection between the conspirator and the actsof his co-conspirators for which he is vicariouslyliable, in practice it offers little assurance at all.United States v. Hansen, 256 F. Supp. 2d 65, 67 n.3(D. Mass 2003), aff’d, 434 F.3d 92 (1st Cir. 2006)(“‘Foreseeability’ is the language of negligence law.It is not a usual criminal law concept and surelynot a concept that puts meaningful due processlimits on criminal liability.”);Mark Noferi, Towards Attenuation: A ‘New’ DueProcess Limit on Pinkerton Conspiracy Liability, 33Am. J. Crim. L. 91, 113 (2006) (“courts havecriticized the ‘reasonably foreseeable’ requirementas providing no meaningful limits on vicariousliability.”). Thus, a defendant convicted ofconspiracy could well find himself also convicted ofa substantive crime he did not commit – even firstdegree murder – based on evidence (such as thehearsay of a co-conspirator) that would beinsufficient or even inadmissible in a stand-alonemurder trial against the defendant who actuallycommitted the murder. See also United States v.Sklena, No. 11-2589 (7th Cir. Aug. 23, 2012)(holding that evidence against defendant convictedof wire and commodities fraud was insufficient toprove actual knowledge or conscious avoidance, butsufficient for purposes of Pinkerton liability).Armed with the cudgel of vicarious liability andrelaxed evidentiary standards, prosecutors haveoverwhelming leverage to extract plea bargainsfrom defendants in conspiracy cases. If thedefendant instead chooses to force the Governmentto prove its case in court, he places his fate in thevagaries of conspiracy law and its many attendantadvantages for the prosecution.

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Against this backdrop, this Court should notvest the prosecution with yet another advantage inconspiracy cases. By requiring the Government todisprove that a defendant who met his burden ofproduction on withdrawal did not in fact withdraw,this Court – in addition to being faithful to the DueProcess Clause – would finally restore somesemblance of balance to the heavily lopsided field ofconspiracy law.

C. Relieving Prosecutors of TheirBurden to Prove a Defendant’sMental State Is UniquelyPrejudicial to Defendants

The district court’s withdrawal instruction,and the similar approach taken by other courts, notonly adds to the perils defendants face inconspiracy cases. It also highlights the drift awayfrom robust mens rea requirements, since theelement negated by Mr. Smith’s withdrawaldefense – the “knowing” participation in aconspiracy – goes directly to Mr. Smith’s mens rea.

Relieving prosecutors of their fullconstitutional burden to establish a defendant’smental state is especially troublesome to theamicus and its members. The mens rearequirement “is as universal and persistent inmature systems of law as belief in freedom of thehuman will and a consequent ability and duty ofthe normal individual to choose between good andevil.” Morissette v. United States, 342 U.S. 246, 250(1952). But as this Court recognized in Mullaney v.Wilbur, unlike other elements of a charged crime,“intent is typically considered a fact peculiarlywithin the knowledge of the defendant.” 421 U.S.

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684, 702 (1975). As a result, if prosecutors need notdisprove an element-negating mental state – suchas “knowingly” partaking in a conspiracy –defendants may have no choice but to testify intheir own defense, with all of the evidentiary andconstitutional downsides that such testimonyentails. Not only may such testimony be counter-productive at trial by taking the jury’s focus off ofthe prosecution’s case and shifting it to thedefendant’s perceived credibility, but the possibilityof being forced to offer it would certainly factor intothe defendant’s decision whether to accept a plea orgo to trial.

The problem of relieving prosecutors of theirobligation to sufficiently prove a criminaldefendant’s mental state, as happened in this case,is an especially salient one. A joint report releasedin 2010 by NACDL and the Heritage Foundationdetailed the proliferation of federal criminaloffenses with a deficient or non-existent mens rearequirement. See Brian W. Walsh and Tiffany M.Joslyn, Without Intent: How Congress is Erodingthe Criminal Intent Requirement in Federal Law, atIX (Apr. 2010),http://www.nacdl.org/criminaldefense.aspx?id=10287&terms=withoutintent (explaining that of the 446non-violent criminal offenses proposed by the 109thCongress, “57 percent lacked an adequate mens rearequirement”). The groups recognized that “[m]ensrea requirements . . . not only help to assignappropriate levels of punishment, but also toprotect from unjust criminal punishment those whocommitted prohibited conduct accidentally orindadvertently.” Id. at 4-5. With “thedisappearance of adequate mens rea requirements,”

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the criminal law “becomes a broad template for themisuse and abuse of governmental power.” Id. at10.

Ensuring that prosecutors bear fully theburden of establishing a defendant’s mental state,therefore, is a critical check on prosecutorial power.But the district court’s instruction effectivelyabsolved the Government of that obligation here byrequiring Mr. Smith to prove by a preponderance ofthe evidence that he withdrew from the chargedconspiracies, and that he thus did not “knowinglyparticipat[e]” in them. This Court should put astop to the continued dilution of mens rearequirements.

* * *None of this is to suggest that Mr. Smith or

other criminal defendants in like circumstancesshould play no role in establishing theirwithdrawal from a conspiracy prior to the statute oflimitations (or in establishing any other element-negating defense). To the contrary, this Court inWilbur, after holding that Maine impermissiblyrequired a defendant charged with murder to provethat he acted in the heat of passion, explicitlyapproved of the requirement in many states thatthe defendant “show that there is ‘some evidence’indicating that he acted in the heat of passionbefore requiring the prosecution to negate thiselement.” Wilbur, 421 U.S. at 702 n.28. Indeed,the Court made clear that “[n]othing in [its] opinionis intended to affect that requirement.” Id. Thus,even if this Court reverses, Mr. Smith and others inhis position would still be required to at least meettheir burden of production regarding their element-negating defenses.

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But once an element negating defense isproperly raised, the prosecution, in order to satisfyits constitutional burden to prove each elementbeyond a reasonable doubt, must disprove thatdefense. Relieving the prosecution of thisobligation not only offends this Court’s precedentsand the United States Constitution, but, asexplained, it substantially undermines the fairnessof trial by diluting one of the most importantprotections against wrongful convictions.

CONCLUSION

For the foregoing reasons, the judgment of thecourt of appeals should be reversed and remanded.

Respectfully submitted,

TIMOTHY P. O’TOOLECounsel of Record

JEFFREY HAHNMILLER & CHEVALIER CHARTERED655 Fifteenth St., N.W., Suite 900Washington, D.C. 20005(202) 626-5800Email: totoole@milchev.com

August 27, 2012