Whether the government bears the burden of proving to a jury that a non-overt-act conspiracy existed within the limitations period

QUESTION PRESENTED Congress has long provided that, “[e]xcept 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” of the offense. 18 U.S.C. § 3282(a). That provision “imposes a nonjurisdictional defense that becomes part of a case” once “a defendant raises it in the district court.” Musacchio v. United States, 577 U.S. 237, 246 (2016). At that point, the government “bears the burden of establishing compliance with the statute of limitations by presenting evidence that the crime was committed within the limitations period.” Id. at 248. Section 3282(a) applies to several criminal conspiracy statutes, including the federal money-laundering conspiracy statute, 18 U.S.C. § 1956(h), which does not require proof of an overt act for the government to satisfy its elements. Whitfield v. United States, 543 U.S. 209, 214 (2005). The Court has long “held that the Government must prove the time of the conspiracy offense if a defense is raised.” Smith v. United States, 568 U.S. 106, 113 (2013) (citing Grunewald v. United States, 353 U.S. 391, 396 (1957)). The question presented is whether, to comply with 18 U.S.C. § 3282(a) in a prosecution for a non-overtact conspiracy, the government bears the burden of proving to a jury that the conspiracy existed within the limitations period (as the First, Second, Third, Fifth, Sixth, and Ninth Circuits hold); or bears no burden beyond proving the elements of the non-overt-act conspiracy (as the Fourth Circuit, joining the Eleventh Circuit, held below).