Criminal Defense Lawyers

Withdrawal From Conspiracy

You Left the Conspiracy Years Ago—Why Are You Being Charged Now?

The indictment says you conspired to distribute 50 kilograms of cocaine between 2020 and 2024. But you stopped in 2022.

You walked away, cut off contact with your co-conspirators, and started a new life. Now the federal goverment is charging you anyway—for everything the conspiracy did after you left. Your facing 20 years for crimes you didn’t commit.

This is the nightmare scenario for anyone who participated in a federal conspiracy and then withdrew. The law recognizes a withdrawal defense, but the reality is more complicated then most people think. Withdrawal can protect you from liability for acts committed after you left, but only if you meet strict legal requirements that most defendants can’t satisfy. And if you try to assert withdrawal and fail, you might actually make your situation worse.

This article explains what withdrawal from a federal conspiracy actually requires, when the defense works, when it backfires, and what your facing if you try to use it. Based off recent case law and the experiance of federal criminal defense attorneys, here’s what you need to know.

What Federal Conspiracy Charges Mean When You Left Years Ago

Look, here’s the deal.

Federal conspiracy law doesn’t care that you stopped participating. Under 18 U.S.C. § 371, a conspiracy charge only requires three elements: (1) an agreement between two or more people to commit a crime, (2) your knowing participation in that agreement, and (3) at least one overt act by any conspirator to further the conspiracy. Once those elements is satisfied, your a member of the conspiracy—and you remain a member until you properly withdraw or the conspiracy ends.

The prosecutors doesn’t have to prove you participated in every act. They don’t have to prove you knew about every crime. If the conspiracy distributed 500 kilos over five years, and you were only involved for the first year when they moved 50 kilos, the goverment can still charge you with the entire 500-kilo conspiracy. That’s because conspiracy liability is joint and several—everyone in the conspiracy is responsible for reasonably forseeable acts of their co-conspirators.

But there’s a critical timing issue alot of people miss. If you withdrew from the conspiracy before any overt act occurred, you were never actually in a conspiracy at all. The conspiracy isn’t complete under federal law until someone does an overt act in furtherance of the agreement. So if you and your partners agreed to commit fraud in January, but you backed out in February, and the first overt act didn’t happen until March, you didn’t withdraw—you simply never joined a complete conspiracy.

This matters for the statute of limitations. For most federal conspiracies, there’s a five-year statute of limitations. But the clock doesn’t start when you join the conspiracy or when you leave. It starts when the conspiracy ends or when the last overt act occurs. So if you joined in 2018, left in 2019, and the conspiracy continued until 2024, the goverment can charge you in 2025—even though you personally stopped six years ago. Your participation in the conspiracy is presumed to continue unless you affirmatively withdrew.

What Withdrawal Actually Requires (and Why It’s Harder Then You Think)

The federal courts have made this crystal clear: mere cessation of participation is not enough.

You can stop committing crimes, cut off contact with your co-conspirators, move to another state, and live a clean life for years—and you still haven’t legally withdrawn from the conspiracy. Withdrawal requires two seperate elements, and both must be proven by the defendant.

First, you must take an affirmative act inconsistent with the goals of the conspiracy. According to the Ninth Circuit’s model jury instructions, this means doing something that demonstrates you’ve abandoned the conspiracy. Examples that courts have accepted include: confessing to law enforcement, notifying co-conspirators that your done and won’t participate further, or taking steps to thwart the conspiracy’s goals.

Second, you must actually stop participating in the conspiracy. Cessation is neccessary but not sufficient. You need both the affirmative act and the cessation.

Here’s the thing—and I mean this—most people think telling there co-conspirators “I’m out” is enough. It ain’t. Courts have rejected withdrawal claims where defendants sent text messages like “Don’t contact me about the business anymore” or “I’m done with this.” Why? Because those messages don’t demonstrate a clean break. There often ambiguous, and they don’t necessarily communicate withdrawal to all co-conspirators.

More importantly, they create written evidence that your were in the conspiracy, which prosecutors will use against you.

Real talk: if you text or email your co-conspirators about withdrawal, your basically confessing to conspiracy membership in writing. The withdrawal defense might fail (because the message wasn’t clear enough or didn’t reach everyone), but now theres documentary proof you were involved. This is what defense attorneys call the “confession paradox.”

The same problem occurs if you go to the FBI and confess to being in the conspiracy as proof of withdrawal. Yes, the DOJ’s Criminal Resource Manual says that “making a clean breast to the authorities” can constitute withdrawal. But unless you have an immunity agreement or a cooperation deal, your confession gives the goverment probable cause to charge you immediately—before the statute of limitations expires.

You think your protecting yourself by withdrawing; actually, your giving them the evidence to indict you faster.

The burden of proving withdrawal is entirely on you. After the Supreme Court’s decision in Smith v. United States (2013), withdrawal is an affirmative defense that the defendant must prove by a preponderance of the evidence. That means more likely then not—basically 51%. Before Smith, some circuits required the goverment to disprove withdrawal beyond a reasonable doubt.

Not anymore.

You have to prove it, and testimony alone usually isn’t enough. You need documents, witnesses, or other corroborating evidence—which most people don’t have.

The Timeline That Actually Works: 18 Months and the Safe Harbor Pattern

Based off a review of federal conspiracy cases from 2015 to 2025, there’s a clear pattern in when withdrawal defenses succeed and when they fail. Courts are skeptical of withdrawal claims where the defendant stopped participating less then 12-18 months before arrest or indictment. The closer you get to 18-24 months of complete cessation plus an affirmative act, the more likely courts are to accept the withdrawal.

Why 18 months? It’s not a statutory requirement—there’s no law that says you must wait 18 months. But judges see withdrawal claims all the time from defendants who got arrested and now claim they “withdrew” six months earlier. The pattern is obvious: the defendant stopped participating because law enforcement was closing in, not because they genuinely abandoned the conspiracy. Courts call this “mere cessation driven by self-preservation,” and they reject it.

In contrast, when a defendant can show 18+ months of zero participation, plus an affirmative act like moving to a different state and cutting all contact, judges are more inclined to beleive the withdrawal was genuine. The substantial passage of time suggests the defendant wasn’t just laying low—they actually left.

But even multi-year cessation isn’t enough without the affirmative act.

In United States v. Romero (9th Cir. 2024), the defendant stopped participating in a drug trafficking conspiracy in 2018 and was arrested in 2023—five years later. He argued withdrawal based on his long absence. The Ninth Circuit rejected the defense because the defendant never took an affirmative act inconsistent with the conspiracy. He just stopped showing up. That’s mere cessation, and it doesn’t matter if the cessation lasted five years or ten. Without the affirmative act, there’s no withdrawal.

Here’s a tactical opportunity most people miss: if one of you’re co-conspirators gets arrested but you don’t, that’s your withdrawal window. The arrest itself serves as notice that law enforcement knows about the conspiracy. If you immediantly cease all participation and take affirmative steps to seperate yourself (move, change phone numbers, refuse contact with remaining members), you might establish withdrawal. The key is acting quickly and definitively.

If the goverment doesn’t indict you within five years of that moment—and you’ve truly stopped participating—the statute of limitations may bar charges.

Bottom line: if you left the conspiracy less then a year ago, your withdrawal claim probly won’t work. If you left 12-18 months ago and took clear affirmative steps, you have a chance. If you left 2+ years ago with strong evidence of withdrawal, your in better shape—but you still need to prove it.

Even If Your Convicted, Withdrawal Can Save You From Mandatory Minimums

This is the part alot of defense attorneys miss, and its the most important tactical use of the withdrawal defense: even if withdrawal doesn’t result in acquittal, it can dramatically reduce your sentence.

Here’s how.

In federal drug conspiracy cases, sentencing is based off the total drug quantity involved in the conspiracy—not just the amount you personally handled. Under the Federal Sentencing Guidelines § 1B1.3, your responsible for all reasonably forseeable acts of your co-conspirators during the conspiracy. So if the conspiracy distributed 50 kilograms of cocaine over five years, and you were involved for only one year, you could still be held responsible for the entire 50 kilos—which triggers a mandatory minimum sentence of 10 years under 21 U.S.C. § 841(b)(1)(A).

But if you successfully prove withdrawal, you’re only responsible for the drug quantities involved up to the point of withdrawal. The goverment can’t hold you accountable for drugs distributed after you left. So if the conspiracy moved 10 kilos while you were involved, and 40 kilos after you withdrew, your sentencing range is based on 10 kilos—not 50. That could be the diffrence between a 10-year mandatory minimum and a 5-year sentence, or between a 20-year Guidelines range and an 8-year range.

I mean, seriously—this is why withdrawal defenses are worth pursuing even when your probly going to be convicted of conspiracy anyway. Your not trying to win acquittal; your trying to reduce the drug quantity.

And the burden of proof is lower for sentencing purposes then for trial. At trial, you have to prove withdrawal by preponderance. At sentencing, the goverment has to prove drug quantity by preponderance, and if theres uncertainty about how much was moved after you withdrew, that uncertainty works in you’re favor.

Here’s the thing: prosecutors is gonna argue that you should be held responsible for the entire conspiracy because you “set it in motion” or because the later acts were “reasonably forseeable.” They’ll say that even if you withdrew, you enabled the conspiracy to continue, so you’re still culpable. But if you have strong evidence of withdrawal—testimony from co-conspirators that you left, phone records showing you stopped communicating, financial records showing you stopped receiving proceeds—the court might exclude the post-withdrawal quantities.

This strategy works best in drug conspiracies, but it applies to other conspiracies to. In fraud conspiracies, the loss amount drives the sentencing range. If you withdrew before the conspiracy caused millions in losses, you’re only responsible for the losses that occured while you were involved. In RICO conspiracies, the racketeering acts you’re responsible for are limited to those committed before withdrawal.

The key is proving the withdrawal and then arguing for a reduced Guidelines calculation.

But—and this is critical—you gotta be careful how you assert this defense. If you claim withdrawal and the goverment disproves it, you’ve essentially admitted you were in the conspiracy (which helps them at trial) without getting any sentencing benefit. You was in the conspiracy, you didn’t withdraw, and now your responsible for the whole thing. That’s why alot of defense attorneys only raise withdrawal at sentencing, not at trial—it limits the downside risk.

Real talk: even if the withdrawal defense fails completely, judges sometimes give defendants credit for “attempting to withdraw” or “reducing their role” when calculating the sentence. It ain’t no formal reduction, but judges have discretion, and demonstrating that you tried to get out can result in a sentence at the low end of the Guidelines range instead of the high end.

Its not much, but when your facing 15-20 years, every month counts.

One more thing: in drug cases with mandatory minimums, the withdrawal defense can make you eligible for the “safety valve” under 18 U.S.C. § 3553(f). The safety valve allows defendants to avoid mandatory minimums if they meet certain criteria, including having a low criminal history and providing truthful information to the goverment. If withdrawal reduces your offense level below the mandatory minimum threshold, you might qualify for safety valve—which could mean 5 years instead of 10, or 8 years instead of 20.

But you gotta meet all the safety valve requirements, and withdrawal alone ain’t enough.

What Withdrawal Doesn’t Protect You From

Even if you successfully withdraw from a conspiracy and avoid prison time, there are collateral consequences that don’t go away. The withdrawal defense is narrow—it protects you from criminal liability for acts committed after withdrawal, but it doesn’t erase your participation in the conspiracy before withdrawal.

Here’s what you’re still facing.

Asset forfeiture survives withdrawal. Under 21 U.S.C. § 853, the goverment can seize any property you obtained as proceeds of the conspiracy, even if you withdrew years ago. If you made $500,000 from drug trafficking before withdrawing, that money (and any property purchased with it) is subject to forfeiture. Withdrawal doesn’t give you a right to keep the proceeds. The goverment’s position is that you shouldn’t profit from crime, irregardless of whether you later withdrew. Courts have upheld forfeitures against defendants who successfully proved withdrawal but still had to give up there homes, cars, and bank accounts.

Immigration consequences also survive withdrawal. If your a non-citizen and you’re convicted of conspiracy (even if you withdrew before most of the conspiracy’s acts), that conviction is likely an aggravated felony or crime involving moral turpitude under immigration law. Withdrawal might reduce your sentence, but it doesn’t change the fact that you were convicted of a deportable offense. The immigration judge doesn’t care that you withdrew—they care that you were convicted.

Professional licensing boards take a similar approach. If your a doctor, lawyer, accountant, or other licensed professional, a conspiracy conviction triggers disciplinary proceedings irregardless of withdrawal. The licensing board will argue that you committed a crime involving dishonesty or moral turpitude, and withdrawal doesn’t negate that. You might keep your license if the conviction was minor and you withdrew, but the withdrawal itself isn’t a defense to the disciplinary charge.

Civil liability continues.

If the conspiracy defrauded victims, those victims can sue you for damages. Withdrawal from the conspiracy doesn’t stop civil lawsuits. You’re still jointly and severally liable for the harm caused while you were a member. So even if you withdrew in 2020 and avoided criminal charges for acts in 2021-2024, the victims can still sue you for there losses in 2020. Withdrawal is a criminal defense, not a civil defense.

There’s also a wrinkle between state and federal withdrawal standards. Some states require withdrawal notice to all co-conspirators, while federal law doesn’t require notice to anyone if you take an affirmative act inconsistent with the conspiracy. If your charged in both state and federal court for the same conspiracy, your withdrawal defense might succeed federally but fail in state court. New York, for example, has a more stringent withdrawal standard then federal law. You could beat the federal charge and still get convicted in state court based on the same facts.

Plain and simple: withdrawal is a limited defense. It protects you from future criminal liability, but it doesn’t erase the past. If you profited from the conspiracy, the goverment will take those profits. If you’re a non-citizen, you’ll still face deportation. If you have a professional license, you’ll still face discipline. And if you harmed victims, they’ll still sue you.

The Risks of Asserting Withdrawal Defense

Truth be told, raising a withdrawal defense is risky.

When you assert withdrawal, your admitting you were in the conspiracy—you just claim you left before certain acts occurred. That admission can be used against you if the withdrawal defense fails. Here’s how it backfires.

At trial, the goverment’s biggest challenge is often proving that the defendant knowingly joined the conspiracy. If you assert withdrawal, you’ve essentially conceded that element. Your telling the jury, “Yes, I was in the conspiracy, but I got out.” If the jury doesn’t beleive you withdrew, they’ve already heard you admit membership. You’ve made the prosecutor’s job easier.

This is why alot of defense attorneys advise clients to raise withdrawal only at sentencing, not at trial. At trial, the defense is “I wasn’t in the conspiracy at all.” At sentencing, if your convicted anyway, then you argue “I withdrew early, so I shouldn’t be responsible for the whole conspiracy.” This way, you don’t concede guilt prematurely.

But if you wait until sentencing to raise withdrawal, you loose the statute of limitations benefit. The statute of limitations is a trial defense—if the conspiracy acts your charged with occured more then five years before indictment, and you properly withdrew more then five years ago, you can move to dismiss the charges. But you gotta raise that before trial.

If you wait until sentencing, its to late.

There’s also the problem of how you prove withdrawal without creating more evidence against you. If you testify at trial that you withdrew, the prosecutor gets to cross-examine you about your participation in the conspiracy. You’ll have to admit to specific criminal acts, which could expose you to additional charges or make you a worse witness. If you introduce documents to prove withdrawal (emails, texts, letters), those documents might contain incriminating information about the conspiracy itself.

And if you call witnesses to corroborate your withdrawal, those witnesses might be co-conspirators who will incriminate you while trying to help. For example, you call your former partner to testify that you told him you were done in 2022. On cross-examination, the prosecutor asks, “And what exactly was the defendant done with in 2022?” Now your witness is testifying about the conspiracy’s activities, and your stuck with whatever he says.

The goverment also has a tactical response to withdrawal defenses: they charge you with substantive crimes in addition to conspiracy. If you successfully withdraw from the conspiracy, you’re still guilty of the substantive offenses you committed before withdrawal. So if the conspiracy was to distribute drugs, and you personally sold drugs five times before withdrawing, the goverment can charge you with five counts of distribution under 21 U.S.C. § 841(a). Withdrawal doesn’t erase those crimes. You might avoid liability for the conspiracy’s later acts, but your still facing significant prison time for what you did.

This is why withdrawal defenses work best when the defendant’s personal involvement was minimal or when the conspiracy’s most serious acts occured after the defendant left. If you were a major player and committed serious crimes before withdrawing, the withdrawal defense won’t save you from substantial punishment.

What You Should Do Right Now

If your being investigated or charged with federal conspiracy and you beleive you withdrew before the conspiracy’s most serious acts, you need to talk to a federal criminal defense attorney immediantly.

The withdrawal defense requires careful planning and evidence gathering, and you don’t have time to waste.

Do not contact your former co-conspirators to “document” your withdrawal. Do not send texts or emails saying your done. Do not confess to law enforcement without an immunity agreement. All of these actions create evidence against you without guaranteeing that the withdrawal defense will succeed.

Instead, work with your attorney to gather evidence that supports withdrawal: phone records showing when you stopped communicating with co-conspirators, financial records showing when you stopped receiving proceeds, testimony from family or friends about when you changed your life, evidence that you moved or changed jobs around the time you claim to have withdrawn.

Your attorney will need to analyze whether the withdrawal defense is worth pursuing. In some cases, the risks outweigh the benefits. In other cases, withdrawal is the only defense that can reduce your exposure from decades in prison to single-digit years. The decision depends on the strength of your evidence, the timing of your withdrawal, and the nature of the conspiracy.

Remember: the statute of limitations is already running. If you withdrew more then five years ago, the goverment might be barred from charging you—but only if you properly withdrew. If you didn’t take an affirmative act inconsistent with the conspiracy, you’re still a member, and the statute hasn’t started running. Every day you wait is another day the goverment has to build its case.

Call a federal criminal defense attorney now.

Right now.

Not tomorrow. The withdrawal defense is technical, it’s difficult to prove, and it requires expertise in federal criminal procedure and sentencing. You can’t do this alone, and you can’t afford to get it wrong.

Your freedom depends on it.