United States: Lesson From Smith: Withdrawal From A Criminal Antitrust Conspiracy Must Be Affirmative

Last Updated: January 21 2013
Article by William H. Devaney, Lisa Jose Fales, Leonard L. Gordon and Paul Feinstein

In a narcotics case surprisingly relevant to the antitrust world, the United States Supreme Court recently addressed withdrawal from a criminal conspiracy. In Smith v. United States,1 a unanimous Court held that the burden rests with the defendant to prove withdrawal from a criminal conspiracy. Although, as noted, the decision involved a drug and racketeering conspiracy, it will certainly affect future criminal antitrust cases in which individuals or corporations seek to argue that they withdrew from an alleged anticompetitive agreement - a not uncommon defense. This alert summarizes the Smith decision and offers crucial practical advice in order to prove withdrawal from a criminal conspiracy.

Calvin Smith was indicted for crimes involving narcotics and racketeering conspiracies that were alleged to have existed in the Washington, D.C. area from the late 1980s to 2000. At trial, Smith raised a statute-of-limitations defense based on the five-year statute of limitations, arguing that he had spent the last six years of the charged conspiracies in prison. Over the defense's objection, the judge instructed the jury that once the government proved that Smith was a member of the conspiracy, the burden was on the defense to prove by a preponderance of the evidence that Smith withdrew, rather than on the government to prove that he did not. The judge defined withdrawal as "affirmative acts inconsistent with the goals of the conspiracy" that "were communicated to the defendant's co-conspirators in a manner reasonably calculated to reach those conspirators." As evidence of withdrawal, Smith introduced a stipulation of his dates spent incarcerated, in addition to testimonial evidence  showing that he was no longer a member of the conspiracies during his incarceration. Applying the aforementioned standard, the jury found that Smith had not met his burden of proving withdrawal. Smith was subsequently convicted and given a life sentence .

On appeal, the United States Court of Appeals for the D.C. Circuit affirmed Smith's conspiracy convictions and the Supreme Court granted certiorari to resolve a circuit split as to which party bears the burden of proof regarding withdrawal from a conspiracy prior to a limitations period. In a short, unanimous opinion delivered by Justice Scalia, the Supreme Court held that a defendant bears the burden of proving the defense of withdrawal. According to the Court, unless an affirmative defense negates an element of the crime, the government has no constitutional duty to overcome the defense beyond a reasonable doubt. Withdrawal does not negate an element of conspiracy. Withdrawal - which must consist of "affirmative action...to disavow or defeat the purpose" of the conspiracy2 - presupposes that the defendant was at one time part of the conspiracy and only relieves the defendant of liability for the post-withdrawal activities of his or her co-conspirators. Similarly, it relieves the defendant from all liability if the withdrawal occurred outside the statute of limitations. The Court also noted that it is well within the powers of Congress to assign the government the burden of proving the non-existence of withdrawal. Since Congress did not assign such a burden, the common-law rule that affirmative defenses are for the defendant to prove is preserved.

Practical Implications

So what does Smith mean for antitrust? Obviously, from a trial practice perspective, it clarifies any doubt as to whether withdrawal from a conspiracy is an affirmative defense. There is, however, a much more practical application.  If you discover a potential antitrust conspiracy in your company, it is not enough to merely stop the conduct. Rather, in consultation with counsel, you should immediately take "affirmative action...to disavow or defeat the purpose of the conspiracy." At the very least, this should consist of exiting the conspiracy in a manner that is unambiguous and memorable, informing the potential co-conspirators at the competition that your company will no longer participate in the questionable meetings or information exchanges. As the trial judge in Smith stated, "withdrawal must be unequivocal," and communicated in a manner reasonably calculated to reach any alleged conspirators. Also in consultation with counsel, the company must determine whether voluntary withdrawal is enough, or if more action is appropriate. Almost certainly an internal investigation will be warranted, and counsel will want to determine whether to seek amnesty from DOJ.

Smith also serves as a reminder of what to do if an employee unexpectedly finds himself or herself in a questionable conversation with competitors in order to avoid allegations that the company ever entered into a conspiracy in the first place. At the first sign of trouble, such as discussions of pricing, market allocations, etc., walk away, making it clear that you do not wish to receive or provide such information. Immediately report the conversation to your in-house counsel. In consultation with counsel, prepare a memo to the file, laying out the details of the encounter and, most importantly, that you immediately removed yourself from and did not receive or provide any information. This protocol should be part of any company's antitrust compliance training.


1. See No. 11-8976 (U.S. Jan. 9, 2013).

2. Id. (quoting Hyde v. United States, 225 U.S. 347, 369 (1912)).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.