Smith v. United States (11-8976)

argument 11-8976

Smith v. United States

Supreme Court of the United States 58 min 6 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the statutory‑limitations defense and how does it apply to conspiracy cases?

John G. Roberts 0:01

We'll hear argument first this morning in case 118976, Smith v. United States. Mr. Kramer.

Mr. Kramer 0:08

Mr. Chief Justice, and it may have pleased the Court, from the first Congress in 1790, Congress has made the decision that all federal statutes, which are, of course, creatures created by Congress and statutes, should be subject to a statute of limitations. In this particular case, five years. When it comes to conspiracy cases, as this Court said, in Hyde, the statute of limitations is treated a little differently because conspiracy statutes or conspiracy crimes are continuing offenses. So the Court said the way we determine, one way to determine whether a particular defendant's involvement in a conspiracy has ended, in other words, his membership has ended, is by the doctrine of withdrawal. It's the statute of limitations that is the defense in the case.

Mr. Kramer 0:57

It's the doctrine of withdrawal that triggers, that is the triggering a vent for the statute of limitations which sets the date for when the statute of limitations starts to run. Withdrawal in and of itself is not a defense. It's the statute of limitations that's the defense.

Stephen G. Breyer 1:13

But is that an element of the crime?

Mr. Kramer 1:16

No. This Court has called it a defense in the Cook case, in the Oppenheimer case. It has

Stephen G. Breyer 1:22

to be raised by the defendant, right?

Mr. Kramer 1:24

It does have to be raised initially. Which

Stephen G. Breyer 1:27

means it's not an element. It doesn't have to be charged in the indictment. Now, how can something that goes to the existence or nonexistence of an affirmative defense be an element?

Mr. Kramer 1:41

Well, I don't, it is not an element. I agree with that. But it is I would say that it's engrafted onto every Federal criminal statute by statute. This is not the common law, but by Congress' decision. I would also say that even though it's not an element of the offense in Winship, this Court referred to the fact that the government must prove every fact necessary to prove a crime beyond a reasonable doubt. It's a fact

Sonia Sotomayor 2:07

necessary. JUSTICE SOTOMAYOR But you could prove the crime without a reasonable — beyond a reasonable doubt if you never raised the statute of limitations. And statutes of limitations exist for civil claims as well as criminal claims. And on the civil side, the statute of limitations is an affirmative defense, and it's up to the plaintiff to both plead and prove it, both the burden of production and persuasion. Why should it be different? on the criminal

Mr. Kramer 2:43

side? I think several reasons. First of all, obviously, the burden of proof is different in criminal cases. As the Court said in Mulaney v. Wilbur, it has been suggested that because of the difficulties in negating an argument that a homicide was committed in the heat of passion, the burden of proof should rest on the defendant. And they said the same may be said of the requirement of proof beyond a reasonable doubt of many controverted facts, but this is the traditional burden which our criminal justice system applies. that the Court has distinguished on some grounds and is the civil statute of limitations from the criminal statute. In fact, in the number of cases this Court has talked about the criminal statute of limitations, it has never referred to it as an affirmative defense.

Mr. Kramer 3:30

It has said it's a defense, but it has never said that the defendant is required to prove it. In fact, the Cook case says it's part of the merits of the case, although it doesn't have to be pleaded in the indictment. And that it has to be — the government has to present evidence of it and proof of it.

Sonia Sotomayor 3:48

But you — I think you recognize that the defendant has the burden of production, not the government. The burden of coming forward with this defense and producing some evidence of the withdrawal.

Mr. Kramer 4:07

Yes, Justice Ginsburg, we do accept that there is a burden of production, as with several other things that are not affirmative defenses, like entrapment or alibi, also have a burden of production before the government has to prove the elements of the crime beyond a reasonable doubt. So it's not — I'm sorry. Finish your answer. It's not dissimilar to those in that respect.