Chapter 3: Article 78, UCMJ Accessory After the Fact
§ 3:1
Elements
§ 3:2
Discussion
§ 3:3
Qualifying Acts
§ 3:4
Practice Pointers
§ 3:5
Standard Instructions
§ 3:6
Maximum Punishment
§ 3:1 – Elements
§ 3:2 – Discussion
This area of the law plainly established criminal liability for individuals that assist a perpetrator after an offense is committed. Accessory after the fact is not a lesser included offense of the underlying crime. The offense must be separately charged.[1]
Whether a person is a principal or an accessory can be fact dependent. Some conspiracies call for individuals to assist in avoiding the detection of the offense by law enforcement. Under those circumstances, the accused may be a principal. It follows that co-perpetrators of an offense cannot also be held criminally liable as an accessory after the fact.
Generally, however, to be criminally liable as an accessory after the fact, the receiving, comforting, or assistance must occur after the principal commits an offense.
Counsel must be careful to analyze the purpose of the assistance under the fourth element. If the purpose of the assistance was to accomplish to goals of the offense, the accused is a principal. If the purpose of the assistance was to hinder the apprehension, trial, or punishment of the principal, then the offense is properly charged under Article 78.
§ 3:3 – Qualifying Acts
The case law in this area has overwhelmingly developed within the context of the offense of larceny. Larceny is a continuing offense. It is common for additional players to become involved after the offense was committed. Typical fact patterns that constitute violations of Article 78 include:
-Falsely informing investigators that someone other than the actual perpetrator committed an offense[3];
-Providing supplies to clean weapons used to commit various offenses[4]
-Advising the perpetrator to get rid of stolen goods[5];
-Concealing the proceeds of a larceny for the perpetrator[6].
§ 3:4 – Practice Pointers
The explanation to Article 78 provides a couple of key points that counsel must be aware of. Firstly, the failure to report an offense does not make a person an accessory after the fact. Secondly, the law requires that the alleged accessory after the fact have “actual knowledge” that the perpetrator had committed an offense. A lack of actual knowledge, in many cases, may be the only defense.
Additionally, counsel should be aware that the distinction between Article78 and Article 134, Misprision of a Serious Offense, is that misprision of a serious offense requires that the perpetrator commit an offense punishable by more than a year confinement.
§ 3:5 – Standard Instructions
Standard Instructions
DA Pamphlet 27-9
3-2-1 – Accessory after the fact
§ 3:6–Maximum Punishments
The maximum punishment under Article 78 is the maximum punishment authorized for the principal offense – except that in no case shall the death penalty nor more than one-half of the maximum confinement authorized for that offense be adjudged. Additionally, the period of confinement shall not exceed 10 years in any case in which life imprisonment may be adjudged.
[1] United States v. Price, 34 CMR 516 (ABR 1963).
[2] United States v. McCrea, 50 CMR 194 (ACMR 1975).
[3] United States v. Davis, 42 MJ 453 (CAAF 1996).
[4] United States v. Foushee, 13 MJ 833 (ACMR 1982).
[5] United States v. Marsh, 32 CMR 252 (CMA 1962)
[6] United States v. Tamas, 20 CMR 218 (CMR 1955).
Elements
§ 3:2
Discussion
§ 3:3
Qualifying Acts
§ 3:4
Practice Pointers
§ 3:5
Standard Instructions
§ 3:6
Maximum Punishment
§ 3:1 – Elements
- That an offense punishable by the code was committed by a certain person;
- That the accused knew that this person had committed such offense;
- That thereafter the accused received, comforted, or assisted the offender; and
- That the accused did so for the purpose of hindering or preventing the apprehension, trial, or punishment of the offender.
§ 3:2 – Discussion
This area of the law plainly established criminal liability for individuals that assist a perpetrator after an offense is committed. Accessory after the fact is not a lesser included offense of the underlying crime. The offense must be separately charged.[1]
Whether a person is a principal or an accessory can be fact dependent. Some conspiracies call for individuals to assist in avoiding the detection of the offense by law enforcement. Under those circumstances, the accused may be a principal. It follows that co-perpetrators of an offense cannot also be held criminally liable as an accessory after the fact.
Generally, however, to be criminally liable as an accessory after the fact, the receiving, comforting, or assistance must occur after the principal commits an offense.
Counsel must be careful to analyze the purpose of the assistance under the fourth element. If the purpose of the assistance was to accomplish to goals of the offense, the accused is a principal. If the purpose of the assistance was to hinder the apprehension, trial, or punishment of the principal, then the offense is properly charged under Article 78.
§ 3:3 – Qualifying Acts
The case law in this area has overwhelmingly developed within the context of the offense of larceny. Larceny is a continuing offense. It is common for additional players to become involved after the offense was committed. Typical fact patterns that constitute violations of Article 78 include:
-Falsely informing investigators that someone other than the actual perpetrator committed an offense[3];
-Providing supplies to clean weapons used to commit various offenses[4]
-Advising the perpetrator to get rid of stolen goods[5];
-Concealing the proceeds of a larceny for the perpetrator[6].
§ 3:4 – Practice Pointers
The explanation to Article 78 provides a couple of key points that counsel must be aware of. Firstly, the failure to report an offense does not make a person an accessory after the fact. Secondly, the law requires that the alleged accessory after the fact have “actual knowledge” that the perpetrator had committed an offense. A lack of actual knowledge, in many cases, may be the only defense.
Additionally, counsel should be aware that the distinction between Article78 and Article 134, Misprision of a Serious Offense, is that misprision of a serious offense requires that the perpetrator commit an offense punishable by more than a year confinement.
§ 3:5 – Standard Instructions
Standard Instructions
DA Pamphlet 27-9
3-2-1 – Accessory after the fact
§ 3:6–Maximum Punishments
The maximum punishment under Article 78 is the maximum punishment authorized for the principal offense – except that in no case shall the death penalty nor more than one-half of the maximum confinement authorized for that offense be adjudged. Additionally, the period of confinement shall not exceed 10 years in any case in which life imprisonment may be adjudged.
[1] United States v. Price, 34 CMR 516 (ABR 1963).
[2] United States v. McCrea, 50 CMR 194 (ACMR 1975).
[3] United States v. Davis, 42 MJ 453 (CAAF 1996).
[4] United States v. Foushee, 13 MJ 833 (ACMR 1982).
[5] United States v. Marsh, 32 CMR 252 (CMA 1962)
[6] United States v. Tamas, 20 CMR 218 (CMR 1955).
