culpable. The delay in indicting the moving defendants for
their part in the scheme is the basis of the defendants'
motions to dismiss the indictment.
As an initial matter, the court would note that "[i]n
considering a defense motion to dismiss an indictment, the
district court accepts as true the factual allegations set
forth in the indictment." United States v. Besmajian,
910 F.2d 1153, 1154 (3rd Cir. 1990) (citing Boyce Motor Lines v.
United States, 342 U.S. 337, 343 n. 16, 72 S.Ct. 329, 332 n.
16, 96 L.Ed. 367 (1952)). In so doing, the court's inquiry is,
of course, whether the indictment properly alleges a criminal
The defendants first argue that Count I of the indictment
should be dismissed because the statute of limitations has
already run on the conspiracy charges.*fn24 They assert that
confession to the authorities is sufficient to withdraw from a
conspiracy and that here it also insulated them from Walsh's
criminal acts from the time Penn DOT seized the titles to cars
1, 2, 4, 5 and 6,*fn25 to the time he subsequently sold the
cars to consumers. The defendants contend that the government's
intervention, and their subsequent cooperation, terminated the
conspiracy before April 30, 1986.
Defendant Waldrop argues that co-conspirators Walsh, Little and
Sexton effectuated a withdrawal from the conspiracy when they
confessed either to the investigator or before the Grand
Jury.*fn26 This withdrawal, asserts Waldrop, relieved him of
criminal responsibility for the conspiracy as well. Similarly,
Sexton argues that his withdrawal of the conspiracy absolves
him under Count I of the indictment.
By contrast, the government argues that defendants Little,
Sexton and Walsh had not fully disclosed their parts in the
alleged scheme. Moreover, it asserts that the defendants did
not do "everything within their power" to "prevent the
commission of [the] crime," citing United States v. Piva,
870 F.2d 753, 757 (1st Cir. 1989).*fn27 The government argues
further that an assessment of the "quality" of the defendants'
disclosures is required under Hyde v. United States,
225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114 (1912). The gravamen of the
government's position is that the defendants allowed the
clocked cars to remain "in the pipeline," and that such
passivity negated their attempted withdrawals.
"To establish a conspiracy under section 371, the Government
must prove: (1) a combination of two or more persons, (2) an
actual agreement, whether express or tacit, between those
persons, (3) an unlawful purpose, and (4) an overt act by one
of the conspirators." United States v. Bevans, 728 F. Supp. 340,
345 (E.D.Pa. 1990) (citations omitted). Furthermore, "[a]
defendant who is a member of a conspiracy may be charged with
and convicted for substantive offenses committed by a
co-conspirator in furtherance of the conspiracy at a time when
the defendant was a member of the conspiracy." United States
v. Gonzalez, 729 F. Supp. 1057, 1062 (D.N.J. 1990). Indeed,
"[it] is sufficient that the substantive crime be `reasonably
foreseeable as a necessary or natural consequence of the
unlawful agreement.'" Id. at 1063.
The government does not need to show that an alleged
conspirator knew all the details of the conspiracy, or even
he knew all of the conspirators. See, e.g. United States v.
Jannotti, 729 F.2d 213 (3rd Cir. 1984); see also United
States v. Sophie 900 F.2d 1064, 1080 (7th Cir. 1990).
Moreover, the success of a conspiracy is immaterial so long as
one of the conspirators committed an overt act in furtherance
of the conspiracy. Sophie, 900 F.2d at 1080.
As the government correctly noted, "an accused conspirator's
participation in a criminal conspiracy is presumed to continue
until all objects of the conspiracy have been accomplished or
until the last overt act is committed by any of the
conspirators." United States v. Finestone, 816 F.2d 583, 589
(11th Cir. 1987) (citations omitted). The presumption can be
overcome, however, by the defendant's showing that he withdrew
from the conspiracy. Id. Withdrawal is an affirmative
defense, which the defendant has the burden of proving. Id.
In discussing the obligations of both the defense and
prosecution where withdrawal is raised as a defense, the Third
Circuit Court of Appeals has noted that at trial:
[t]he defendant must present evidence of some affirmative act
of withdrawal on his part, typically either a full confession
to the authorities or communication to his co-conspirators
that he has abandoned the enterprise and its goals. United
States v. Steele, 685 F.2d 793, 803 (3rd Cir.), cert.
denied, 459 U.S. 908, 103 S.Ct. 213, 74 L.Ed.2d 170 (1982).
Once the defendant has made a prima facie showing of
withdrawal, the burden shifts to the government either to
impeach the defendant's proof or to show some act by the
defendant in furtherance of the conspiracy and subsequent to
the alleged withdrawal. Id.
United States v. Jannotti,