United States v. Davis

39 M.J. 942, 1994 CMR LEXIS 441, 1994 WL 116590
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedMarch 29, 1994
DocketNMCM 92 2213
StatusPublished
Cited by2 cases

This text of 39 M.J. 942 (United States v. Davis) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Davis, 39 M.J. 942, 1994 CMR LEXIS 441, 1994 WL 116590 (usnmcmilrev 1994).

Opinion

REED, Senior Judge:

In accordance with his pleas, appellant was convicted at a special court-martial of being an accessory after the fact to larceny and the disobedience of a lawful general order (wrongful possession of a handgun) in violation of Articles 78 and 92, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 878 and 892. The military judge sentenced appellant to confinement for three months, forfeiture of $300.00 pay per month for six months, reduction to pay grade E-l, and a bad-conduct discharge. Pursuant to the terms of a pretrial agreement, the convening authority approved the sentence as adjudged, but suspended confinement in excess of 60 days for a period of 12 months.

On review, appellant assigns seven errors.1 We will discuss the first three, finding the [943]*943remaining to be without merit. Weiss v. United States, — U.S.-, 114 S.Ct. 752, 127 L.Ed.2d 1 (1994).

FACTS

Appellant and Airman (AN) Starr were leaving the Naval Air Station Jacksonville enlisted club together when Airman Jackson, a friend of AN Starr, agreed to drive Starr and appellant to the base gate in Jackson’s car. Appellant got into the front passenger seat and Starr rode in the back. At some point near the gate, base security stopped the car, removed a car bra2 from the back seat of Jackson’s vehicle, and apprehended all of the car’s occupants. Appellant and Starr were placed in one base security vehicle and Jackson in another. While sitting in the security vehicle, Starr informed appellant that he had taken the car bra earlier and that he wasn’t sure if security saw him steal it. Record at 55, 56. Starr then asked appellant to help him conceal his guilt by telling security that the car bra was already in the back seat when they entered Jackson’s car for the ride to the gate. Because appellant considered Starr to be a good Mend, and because he had only just met Jackson that evening, he agreed to Starr’s request.

Although appellant could not remember his exact statements to base security personnel, he informed the military judge that he had “hinted” that AN Jackson was responsible for stealing the car bra. Appellant remembered “saying something to the effect that [he] didn’t know who had [taken] it and that [he and AN Starr] had just asked AN Jackson for a ride, and that he [Jackson] seemed to be in a hurry to get off base.” Record at 57 and 58. Prosecution Exhibit 1, a stipulation of fact, indicates that when questioned by investigators, appellant “covered for Starr and implied that he believed AN Jackson was guilty of taking the bra even though he knew it was Starr.”

ANALYSIS

In his first assignment of error appellant contends that his plea to the charge of accessory after the fact was improvident where, as a matter of law, his statements to base security personnel regarding the larceny of the car bra were an insufficient basis to support a conviction under Article 78, UCMJ. At issue is whether appellant’s lies to investigators satisfy an element of the offense requiring an accused to have “received, comforted, or assisted the offender.” Manual For Courts-Martial, United States, 1984 (MCM), Part IV, ¶ 3b.

Appellant initially asserts that his statements constitute nothing more than a mere failure to report an offense, and thus could not satisfy a conviction to the offense of accessory after the fact. See MCM, Part IV, ¶ 3e(2), 1984.3 We disagree with this characterization of appellant’s actions.

Appellant went beyond remaining silent with his knowledge of Starr’s larceny of the car bra. Appellant admitted that he provid[944]*944ed false or misleading statements, at the request of Starr, for the purpose of “cover[ing) up” Starr’s theft of the car bra and to direct the focus of the investigation onto Jackson. Record at 57. Appellant’s statements constitute affirmative acts of assistance, not simply a failure to report a larceny.

Appellant next asserts that lying to law enforcement authorities is not the type of assistance contemplated by Article 78, UCMJ. We have found no cases indicating that any military court has considered this issue. Appellant points to two U.S. Court of Appeals cases, United States v. Lepanto, 817 F.2d 1463 (10th Cir.1987) and United States v. Prescott, 581 F.2d 1343 (9th Cir.1978), which address the issue in the context of the federal accessory after the fact statute, 18 U.S.C. § 3.4 These cases suggest that lying to law enforcement authorities regarding the whereabouts of a suspect will not sustain a conviction under 18 U.S.C. § 3.5 In Lepanto, that court also noted that

[T]he police never told defendant that his brother was suspected of a crime, or was being sought for questioning. Although defendant’s statements regarding his brother’s whereabouts were clearly intended to mislead the police, it is far from clear that the imposition of criminal sanctions is justified when the authorities provide no reason whatsoever for their questions.

Lepanto at 1468.

In United States v. Magness, 456 F.2d 976 (1972), the court held that an accused’s false statement to FBI agents that he had not seen for many years the person he allegedly concealed, standing alone, could not constitute “active ” conduct of hiding or concealing contemplated by 18 U.S.C. § 1071.

Federal appellate courts, however, have sustained accessory after the fact convictions, where an accused conceals evidence of a crime by providing false information to law enforcement authorities. United States v. Triplett, 922 F.2d 1174 (5th Cir.), cert. denied, 500 U.S. 945, 111 S.Ct. 2245, 114 L.Ed.2d 486 (1991); United States v. Garris, 616 F.2d 626 (2nd Cir.1980); United States v. Day, 533 F.2d 524 (10th Cir.1976), cert. denied, 444 U.S. 902, 100 S.Ct. 214, 62 L.Ed.2d 139 (1979).

In Garris, the Court was called upon to decide if a sister’s repetition of her brother’s admission to her of complicity in a robbery was against her penal interest. The Court there held that the admission would be pro[945]*945bative in a trial against the sister “for acting as an accessory after the fact ... in violation of 18 U.S.C. § 3 for it show[ed] that

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Related

United States v. Lamont D. Osborn
120 F.3d 59 (Seventh Circuit, 1997)
United States v. Davis
42 M.J. 453 (Court of Appeals for the Armed Forces, 1995)

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Bluebook (online)
39 M.J. 942, 1994 CMR LEXIS 441, 1994 WL 116590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-davis-usnmcmilrev-1994.