The Withdrawal Defense, Statutes of Limitations and Burdens of Proof in Conspiracy Cases

Conspiracy charges are very common in New Mexico. The word conspiracy sounds may suggest something very serious, sinister and complex but in actuality it is a fairly simple charge to derive in criminal cases involving multiple defendants.

The Mexico Jury instruction is pretty straightforward and from it, it is easy to see why conspiracy charges are often charged where there is more than one defendant. The jury instruction on conspiracy sets forth 3 basic elements: 1) the defendant and another person or persons by words or acts agreed together to commit a crime, 2) the defendant and the other person or persons intended to commit the crime, and 3) it happened in New Mexico.

In short, it is quite easy to get an indictment on conspiracy when 2 or more defendants are allegedly involved in a crime. One defense that may be asserted is “withdrawal” from the conspiracy. It is possible for a defendant to conspire to commit a crime but subsequently withdraw from the conspiracy. In other words, the defendant was no longer involved.

The Supreme Court case of Smith v. United States has implications for those charged with conspiracy in in New Mexico on a number of fronts. The case addressed a situation involving the asserted “withdrawal” defense. The case was made more interesting by the fact that it was also alleged that the statute of limitations had run since the alleged withdrawal. Interestingly, the statute of limitations was 5 years and the defendant had been in prison on other charges for 6.

The Court made a number of important findings regarding “withdrawal” with consequent implications for the statute of limitations. First, the court addressed who bears the burden of proving withdrawal. The Court stated that because withdrawal from a conspiracy is an affirmative defense and affirmative defenses must be proved by the defendant, the burden was on the defendant to prove withdrawal and not upon the prosecutor to disprove it.

The Court also set forth the rule which also governs withdrawal in New Mexico regarding the nature of the withdrawal. In short, the defendant must prove unequivocally by words or deeds that he or she withdrew. Apparently, imprisonment does not quite meet this high standard.

The Court further stated that defendant remains criminally liable for all criminal acts that occurred prior to the withdrawal. So a defendant cannot simply assert that he withdrew, and somehow disavow responsibility for acts occurring before the withdrawal. An effective withdrawal will prevent criminal responsibility for any acts or crimes occurring after the withdrawal. However, there may be issues and problems for a defendant for the natural progression of the conspiracy of which he was apart and failed to stop. That topic is beyond the scope of this article.

Finally, there is a statute of limitations on conspiracy charges. In Smith v. United States, it was 5 years. However, the statute of limitations does not begin to run until the withdrawal. And once again, the defendant must prove the withdrawal and the date of withdrawal in asserting the statute of limitations. If there was an effective withdrawal, and the statute of limitations has run since that withdrawal, then indeed the prosecution would be barred from pursuing charges.

In short, the issues are complicated and require the assistance of an experienced criminal law attorney. If you have been charged, you should not delay in speaking with an attorney. If you cannot afford an attorney, there are many very skilled New Mexico public defenders and you should apply for assistance immediately.


Related Reading:
Speedy Trial Requirement & Six Month Rule on Misdemeanor Cases: Exceptional Circumstances Required for Deviations
Speedy Trial Rights in New Mexico
Speedy Trial Rights Stumble Up from the Mat: Oral Rulings Will Not Extend the Rule in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

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