Is a "cover-up" lie told after the murder a statement in furtherance of a conspiracy to murder or part of a separate conspiracy to obstruct justice?
In United States v. Diamond, __ M.J. ___, No. ARMY 20010761 (A. Ct. Crim. App. Dec. 21, 2007), the second major issue is whether post-murder statements made by a co-conspirator to misinform law enforcement agents constituted uncharged misconduct about a separate conspiracy to obstruct justice rather than statements in furtherance of the conspiracy to commit premeditated murder. ACCA rules that this is a fact-based issue. In this case, the court held that the statements were in furtherance of the premeditated murder and its objective. Id., slip op. at 27-28. ACCA relied, in part, on a 195 CMA case indicating:
[N]ot infrequently the commission of a criminal offense is followed immediately by an active attempt to conceal it. Thus, a rule has arisen to the effect that the declarations of a co[-]conspirator are admissible against a co[-]conspirator not only when they are made during the perpetration of the offense, but also when expressed during the course of a subsequent attempt to conceal the crime and relating to it.
Id., slip op. at 26 (quoting United States v. Taylor, 6 C.M.A. 289, 293, 20 C.M.R. 5, 9 (!955) (second and third alterations in the original)).