(Slip Opinion)              OCTOBER TERM, 2012                                       1

                                       Syllabus

         NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
       being done in connection with this case, at the time the opinion is issued.
       The syllabus constitutes no part of the opinion of the Court but has been
       prepared by the Reporter of Decisions for the convenience of the reader.
       See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.


SUPREME COURT OF THE UNITED STATES

                                       Syllabus

                      SMITH v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
          THE DISTRICT OF COLUMBIA CIRCUIT

  No. 11–8976. Argued November 6, 2012—Decided January 9, 2013
Petitioner Smith claimed that conspiracy charges brought against him
  for his role in an illegal drug business, see 21 U. S. C. §846 and 18
  U. S. C. §1962(d), were barred by 18 U. S. C. §3282’s 5-year statute of
  limitations. The District Court instructed the jury to convict Smith
  of each conspiracy count if the Government had proved beyond a rea-
  sonable doubt that the conspiracies existed, that Smith was a mem-
  ber of those conspiracies, and that the conspiracies continued within
  the applicable statute-of-limitations period. As to the affirmative de-
  fense of withdrawal from the conspiracy, the court instructed the jury
  that once the Government proved that Smith was a member of the
  conspiracy, Smith had the burden to prove withdrawal outside the
  statute of limitations by a preponderance of the evidence. Smith was
  convicted, and the D. C. Circuit affirmed.
Held: A defendant bears the burden of proving a defense of withdrawal.
 Pp. 3–8.
    (a) Allocating to the defendant the burden of proving withdrawal
 does not violate the Due Process Clause. Unless an affirmative de-
 fense negates an element of the crime, the Government has no consti-
 tutional duty to overcome the defense beyond a reasonable doubt.
 See Dixon v. United States, 548 U. S. 1, 6. Withdrawal does not ne-
 gate an element of the conspiracy crimes charged here, but instead
 presupposes that the defendant committed the offense. Withdrawal
 terminates a defendant’s liability for his co-conspirators’ postwith-
 drawal acts, but he remains guilty of conspiracy.
    Withdrawal that occurs beyond the statute-of-limitations period
 provides a complete defense to prosecution, but does not render the
 underlying conduct noncriminal. Thus, while union of withdrawal
 with a statute-of-limitations defense can free a defendant of criminal
2                      SMITH v. UNITED STATES

                                 Syllabus

    liability, it does not place upon the prosecution a constitutional re-
    sponsibility to prove that he did not withdraw. As with other affirm-
    ative defenses, the burden is on him. Pp. 3–6.
       (b) Although Congress may assign the Government the burden of
    proving the nonexistence of withdrawal, it did not do so here. Be-
    cause Congress did not address the burden of proof for withdrawal in
    21 U. S. C. §846 or 18 U. S. C. §1962(d), it is presumed that Congress
    intended to preserve the common-law rule that affirmative defenses
    are for the defendant to prove. Dixon, supra, at 13–14. The analysis
    does not change when withdrawal is the basis for a statute-of-
    limitations defense. In that circumstance, the Government need only
    prove that the conspiracy continued past the statute-of-limitations
    period. A conspiracy continues until it is terminated or, as to a par-
    ticular defendant, until that defendant withdraws. And the burden
    of establishing withdrawal rests upon the defendant. Pp. 6–8.
651 F. 3d 30, affirmed.

    SCALIA, J., delivered the opinion for a unanimous Court.
                        Cite as: 568 U. S. ____ (2013)                              1

                             Opinion of the Court

     NOTICE: This opinion is subject to formal revision before publication in the
     preliminary print of the United States Reports. Readers are requested to
     notify the Reporter of Decisions, Supreme Court of the United States, Wash-
     ington, D. C. 20543, of any typographical or other formal errors, in order
     that corrections may be made before the preliminary print goes to press.


SUPREME COURT OF THE UNITED STATES
                                   _________________

                                   No. 11–8976
                                   _________________


  CALVIN SMITH, PETITIONER v. UNITED STATES
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

    APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

                               [January 9, 2013]


  JUSTICE SCALIA delivered the opinion of the Court.
  Upon joining a criminal conspiracy, a defendant’s mem-
bership in the ongoing unlawful scheme continues until he
withdraws. A defendant who withdraws outside the rele-
vant statute-of-limitations period has a complete defense
to prosecution. We consider whether, when the defend-
ant produces some evidence supporting such a defense,
the Government must prove beyond a reasonable doubt
that he did not withdraw outside the statute-of-limitations
period.
                                I
   Petitioner Calvin Smith was indicted for crimes con-
nected to his role in an organization that distributed
cocaine, crack cocaine, heroin, and marijuana in Washing-
ton, D. C., for about a decade. The 158-count indictment
charged Smith and 16 alleged co-conspirators with con-
spiring to run, and actually running, an illegal drug busi-
ness, as well as with committing acts of violence, including
31 murders, to further their goals. Smith was tried along-
side five codefendants. A jury of the United States Dis-
trict Court for the District of Columbia convicted him of (1)
conspiracy to distribute narcotics and to possess narcotics
2                     SMITH v. UNITED STATES

                          Opinion of the Court

with the intent to distribute them, in violation of 21
U. S. C. §846; (2) Racketeer Influenced and Corrupt Or-
ganizations Act (RICO) conspiracy, in violation of 18
U. S. C. §1962(d); (3) murder in connection with a contin-
uing criminal enterprise, in violation of 21 U. S. C.
§848(e)(1)(A); and (4) four counts of murder while armed,
in violation of D. C. Code §§22–2401 and 22–3202 (1996).1
   At issue here are Smith’s conspiracy convictions. Before
trial, Smith moved to dismiss the conspiracy counts as
barred by the applicable 5-year statute of limitations, 18
U. S. C. §3282, because he had spent the last six years of
the charged conspiracies in prison for a felony conviction.
The court denied his motion and Smith renewed his
statute-of-limitations defense at trial. In the final jury
charge, the court instructed the jury to convict Smith of each
conspiracy count if the Government had proved beyond a
reasonable doubt that the conspiracies existed, that Smith
was a member of those conspiracies, and that the conspir-
acies “continued in existence within five years” before the
indictment. App. 289a, 300a.
   After it began deliberations, the jury asked the court
what to do in the event that a defendant withdrew from
the conspiracies outside the relevant limitations period.2
Smith had not yet raised an affirmative defense of with-
drawal, so the court for the first time instructed the jury
on the defense. The court explained that “[t]he relevant
date for purposes of determining the statute of limitations

——————
   1 On appeal, the D. C. Circuit remanded two of the murder counts for

the District Court to conduct an evidentiary hearing regarding whether
Smith received ineffective assistance of counsel as to those convictions.
United States v. Moore, 651 F. 3d 30, 89 (2011) (per curiam).
   2 The note to the judge inquired: “ ‘If we find that the Narcotics or

RICO conspiracies continued after the relevant date under the statute
of limitations, but that a particular defendant left the conspiracy before
the relevant date under the statute of limitations, must we find that
defendant not guilty? ’ ” App. 174a.
                 Cite as: 568 U. S. ____ (2013)            3

                     Opinion of the Court

is the date, if any, on which a conspiracy concludes or a
date on which that defendant withdrew from that conspir-
acy.” Id., at 328a. It defined withdrawal as “affirmative
acts inconsistent with the goals of the conspiracy” that
“were communicated to the defendant’s coconspirators in
a manner reasonably calculated to reach those conspira-
tors.” “Withdrawal,” the court instructed, “must be un-
equivocal.” Ibid. Over the defense’s objection, the court
told the jury that “[o]nce the government has proven that
a defendant was a member of a conspiracy, the burden is
on the defendant to prove withdrawal from a conspiracy
by a preponderance of the evidence.” Ibid. The jury then
convicted Smith of the conspiracy crimes.
   As relevant here, the Court of Appeals affirmed Smith’s
conspiracy convictions. Recognizing that the Circuits are
divided on which party bears the burden of proving or dis-
proving a defense of withdrawal prior to the limitations
period, the court concluded that the defendant bears the
burden of proof and that such a disposition does not vio-
late the Due Process Clause. United States v. Moore, 651
F. 3d 30, 89–90 (CADC 2011) (per curiam). We granted
certiorari. 567 U. S. ___ (2012).
                               II
  Petitioner’s claim lies at the intersection of a withdrawal
defense and a statute-of-limitations defense. He asserts
that once he presented evidence that he ended his mem-
bership in the conspiracy prior to the statute-of-
limitations period, it became the Government’s burden to
prove that his individual participation in the conspiracy
persisted within the applicable five-year window. This
position draws support neither from the Constitution (as
discussed in this Part II), nor from the conspiracy and
limitations statutes at issue (as discussed in Part III,
infra). Establishing individual withdrawal was a burden
that rested firmly on the defendant regardless of when the
4                     SMITH v. UNITED STATES

                          Opinion of the Court

purported withdrawal took place.
   Allocating to a defendant the burden of proving with-
drawal does not violate the Due Process Clause. While the
Government must prove beyond a reasonable doubt “every
fact necessary to constitute the crime with which [the de-
fendant] is charged,” In re Winship, 397 U. S. 358, 364
(1970), “[p]roof of the nonexistence of all affirmative de-
fenses has never been constitutionally required,” Patterson
v. New York, 432 U. S. 197, 210 (1977). The State is fore-
closed from shifting the burden of proof to the defendant
only “when an affirmative defense does negate an element
of the crime.” Martin v. Ohio, 480 U. S. 228, 237 (1987)
(Powell, J., dissenting). Where instead it “excuse[s] con-
duct that would otherwise be punishable,” but “does not
controvert any of the elements of the offense itself,” the
Government has no constitutional duty to overcome the
defense beyond a reasonable doubt. Dixon v. United
States, 548 U. S. 1, 6 (2006).
   Withdrawal does not negate an element of the conspir-
acy crimes charged here. The essence of conspiracy is “the
combination of minds in an unlawful purpose.” United
States v. Hirsch, 100 U. S. 33, 34 (1879). To convict a de-
fendant of narcotics or RICO conspiracy, the Govern-
ment must prove beyond a reasonable doubt that two or
more people agreed to commit a crime covered by the
specific conspiracy statute (that a conspiracy existed) and
that the defendant knowingly and willfully participated in
the agreement (that he was a member of the conspiracy).3
——————
    3 Narcoticsconspiracy under 21 U. S. C. §846 criminalizes “con-
spir[ing] to commit any offense” under the Controlled Substances
Act, including the knowing distribution of, or possession with intent to
distribute, controlled substances, §841(a)(1). Section 1962(d) of Title 18
makes it unlawful to “conspire to violate” RICO, which makes it unlaw-
ful, among other things, “for any person employed by or associated with
any enterprise engaged in, or the activities of which affect, interstate or
foreign commerce, to conduct or participate, directly or indirectly, in the
                     Cite as: 568 U. S. ____ (2013)                     5

                          Opinion of the Court

Far from contradicting an element of the offense, with-
drawal presupposes that the defendant committed the
offense. Withdrawal achieves more modest ends than
exoneration. Since conspiracy is a continuing offense,
United States v. Kissel, 218 U. S. 601, 610 (1910), a de-
fendant who has joined a conspiracy continues to violate
the law “through every moment of [the conspiracy’s] exist-
ence,” Hyde v. United States, 225 U. S. 347, 369 (1912),
and he becomes responsible for the acts of his co-
conspirators in pursuit of their common plot, Pinkerton v.
United States, 328 U. S. 640, 646 (1946). Withdrawal
terminates the defendant’s liability for postwithdrawal
acts of his co-conspirators, but he remains guilty of
conspiracy.
  Withdrawal also starts the clock running on the time
within which the defendant may be prosecuted, and pro-
vides a complete defense when the withdrawal occurs
beyond the applicable statute-of-limitations period.4 A
complete defense, however, is not necessarily one that
establishes the defendant’s innocence. For example, we
have held that although self-defense may entirely excuse
or justify aggravated murder, “the elements of aggravated
murder and self-defense [do not] overlap in the sense that
evidence to prove the latter will often tend to negate the
former.” Martin, supra, at 234; see Leland v. Oregon, 343
U. S. 790, 794–796 (1952) (same for insanity defense).
Likewise, although the statute of limitations may inhibit
——————
conduct of such enterprise’s affairs through a pattern of racketeering
activity,” §1962(c).
   4 The conspiracy statutes at issue here do not contain their own limi-

tations periods, but are governed by §3282(a), which provides: “Except
as otherwise expressly provided by law, no person shall be prosecuted,
tried, or punished for any offense, not capital, unless the indictment is
found or the information is instituted within five years next after such
offense shall have been committed.” At the time petitioner was in-
dicted, §3282 contained no subsections; what was the full text of the sec-
tion is now subsection (a).
6                 SMITH v. UNITED STATES

                     Opinion of the Court

prosecution, it does not render the underlying conduct
noncriminal. Commission of the crime within the statute-
of-limitations period is not an element of the conspiracy
offense. See United States v. Cook, 17 Wall. 168, 180
(1872). The Government need not allege the time of the
offense in the indictment, id., at 179–180, and it is up to
the defendant to raise the limitations defense, Biddinger
v. Commissioner of Police of City of New York, 245 U. S.
128, 135 (1917). A statute-of-limitations defense does not
call the criminality of the defendant’s conduct into ques-
tion, but rather reflects a policy judgment by the legis-
lature that the lapse of time may render criminal acts ill
suited for prosecution. See, e.g., Toussie v. United States,
397 U. S. 112, 114–115 (1970). Thus, although union of
withdrawal with a statute-of-limitations defense can free
the defendant of criminal liability, it does not place upon
the prosecution a constitutional responsibility to prove that
he did not withdraw. As with other affirmative defenses,
the burden is on him.
                              III
  Of course, Congress may choose to assign the Govern-
ment the burden of proving the nonexistence of withdrawal,
even if that is not constitutionally required. It did not
do so here. “[T]he common-law rule was that affirmative
defenses . . . were matters for the defendant to prove.”
Martin, supra, at 235; see 4 W. Blackstone, Commentaries
on the Laws of England 201 (1769). Because Congress did
not address in 21 U. S. C. §846 or 18 U. S. C. §1962(d)
the burden of proof for withdrawal, we presume that Con-
gress intended to preserve the common-law rule. Dixon, 548
U. S., at 13–14.
  That Congress left the traditional burden of proof undis-
turbed is both practical and fair. “ ‘[W]here the facts with
regard to an issue lie peculiarly in the knowledge of a
party,’ ” that party is best situated to bear the burden of
                     Cite as: 568 U. S. ____ (2013)                    7

                          Opinion of the Court

proof. Id., at 9. On the matter of withdrawal, the in-
formational asymmetry heavily favors the defendant. Pas-
sive nonparticipation in the continuing scheme is not
enough to sever the meeting of minds that constitutes the
conspiracy. “[T]o avert a continuing criminality” there
must be “affirmative action . . . to disavow or defeat the
purpose” of the conspiracy. Hyde, supra, at 369. The
defendant knows what steps, if any, he took to dissociate
from his confederates. He can testify to his act of with-
drawal or direct the court to other evidence substantiating
his claim.5 It would be nearly impossible for the Gov-
ernment to prove the negative that an act of with-
drawal never happened. See 9 J. Wigmore, Evidence §2486,
p. 288 (J. Chadbourn rev. 1981) (“It is often said that the
burden is upon the party having in form the affirmative
allegation”). Witnesses with the primary power to refute a
withdrawal defense will often be beyond the Government’s
reach: The defendant’s co-conspirators are likely to invoke
their right against self-incrimination rather than explain
their unlawful association with him.
  Here again, the analysis does not change when with-
drawal is the basis for a statute-of-limitations defense. To
be sure, we have held that the Government must prove
the time of the conspiracy offense if a statute-of-limitations
defense is raised. Grunewald v. United States, 353 U. S.
391, 396 (1957). But the Government satisfied that bur-
den here when it proved that the conspiracy continued
past the statute-of-limitations period. For the offense in
these conspiracy prosecutions was not the initial act of
agreement, but the banding-together against the law
effected by that act, which continues until termination of
——————
  5 Here, Smith introduced a stipulation of his dates spent incarcerated,

as well as “testimonial evidence showing that he was no longer a
member of the charged conspiracies during his incarceration.” Brief for
Petitioner 3. The jury found that this did not establish by a preponder-
ance of the evidence an affirmative act of withdrawal.
8                SMITH v. UNITED STATES

                     Opinion of the Court

the conspiracy or, as to a particular defendant, until that
defendant’s withdrawal. And as we have discussed, the
burden of establishing that withdrawal rests upon the
defendant.
  Petitioner’s claim that assertion of a statute-of-
limitations defense shifts that burden is incompatible with
the established proposition that a defendant’s membership
in the conspiracy, and his responsibility for its acts, en-
dures even if he is entirely inactive after joining it. (“As
he has started evil forces he must withdraw his support
from them or incur the guilt of their continuance.” Hyde,
225 U. S., at 369–370.) For as a practical matter, the only
way the Government would be able to establish a failure
to withdraw would be to show active participation in the
conspiracy during the limitations period.
                       *     *   *
  Having joined forces to achieve collectively more evil
than he could accomplish alone, Smith tied his fate to that
of the group. His individual change of heart (assuming it
occurred) could not put the conspiracy genie back in the
bottle. We punish him for the havoc wreaked by the un-
lawful scheme, whether or not he remained actively in-
volved. It is his withdrawal that must be active, and it
was his burden to show that.
  The judgment of the Court of Appeals is affirmed.

                                            It is so ordered.
