Writing for the majority of a three-judge panel in United States v. McCormick, __ M.J. __, No. 20120029 (A. Ct. Crim. App. Dec. 19, 2014) (link to slip op.), Chief Judge Pede finds that “appellant’s intent and the timing of that intent,” slip op. at 7, permit the court to affirm convictions for both being an accessory after the fact to attempted unpremeditated murder and for being a principle (by aiding and abetting) to aggravated assault related to the same attempted murder.

The facts are:

[A]ppellant was the driver (but not the shooter) in a drive-by-shooting targeting another occupied vehicle. As the driver, appellant aided and abetted the shooter, precipitating appellant’s convictions for aggravated assault. The shooter himself, however, ultimately fired thirteen rounds into the targeted vehicle, evidencing the shooter’s intent to commit murder. Appellant then drove away from the scene and helped cover up the shooting, arguably making appellant an accessory after the fact to the shooter’s attempted murder of the targeted vehicle’s occupants.

Slip op. at 5. For these actions the appellant was charged with attempted premeditated murder and with aggravated assault, both as a principle actor to the shooting by aiding and abetting the actual shooter, and also with accessory after the fact to attempted premeditated murder for helping to cover up the shooting. A general court-martial composed of a military judge alone acquitted the appellant of the attempted premeditated murder charge, but convicted him of the aggravated assault and accessory after the fact charges.

Chief Judge Pede concludes:

A “perpetrator of [a] substantive offense, either as the principal actor or aider and abettor, . . . cannot be an accessory after the fact to his own offense.” United States v. Foushee, 13 M.J. 833, 835 (A.C.M.R. 1982). Because appellant was a principal only to aggravated assault, however, he could also potentially be an accessory after the fact to the more serious (but distinct) offense of attempted murder, even though the shooting was one transaction.

Slip op. at 6. This conclusion is based on the specific intent element required for a conviction of attempted murder:

Appellant was convicted of Article 128, but acquitted of Article 80. We find it was reasonable for the military judge to have concluded that at the time the principal fired the shots, appellant did not share the principal’s intent to kill the passengers in the automobile, and therefore appellant was not guilty of attempted murder.

It is also reasonable, however, to conclude that after SPC J fired thirteen shots, but before appellant started assisting in covering the tracks of SPC J’s crime, appellant realized SPC J intended to kill the occupants. Therefore, appellant’s actions to cover up the shooting attack made him guilty of attempted murder as an accessory after the fact.

Slip op. at 6-7 (citation omitted).

Notably, Chief Judge Pede sees the charging decision as addressing exigencies of proof:

Due apparently to exigencies of proof, the government charged appellant as a principal in the alternative under both Article 80 (attempted murder) and Article 128 (aggravated assault).

Slip op. at 6. But Judge Haight feels otherwise:

I wholly reject any notion that the government charged these offenses in the alternative or due to “exigencies of proof.” Any such presumption is completely undercut by trial counsel’s concluding remark of his opening statement, “The government is confident that after hearing all of the evidence in this case, you will find the accused guilty, first and foremost, of attempted premeditated murder and then you will also find the accused guilty of the remaining charges and specifications.” It is plain that from preferral of charges to trial, the government fully intended to impermissibly convict appellant not only of separately charged lesser included offenses but also as an accessory after the fact to his own charged crime of attempted premeditated murder. This overreaching should not be condoned.

Slip op. at 9 (Haight, J., dissenting in part). Judge Haight “would dismiss the accessory after the fact offense as an unreasonable multiplication of charges or as factually insufficient.” Slip op. at 8.

2 Responses to “A published opinion from the Army CCA addresses whether an appellant was convicted of being an accessory after the fact to his own offense”

  1. RKincaid3 (RK3PO) says:

    Judge Haight is correct–this is ridiculous overreaching!

  2. stewie says:

    I wonder if they are both right? I don’t think I disagree with BG Pede that there in general you could be an accessory after the fact to one offense, and a principal to another even though the two separate offenses are part of one transaction.  But I think Judge Haight is also correct that if the government is presenting the evidence that way, they aren’t doing charging in the alternative.  I also think there’s an obvious fairness component when it involves one transaction that somewhat circumvents the prohibition with charging someone as both an accessory after the fact and principal for the same offense.
    Yes, technically not the same offense, but definitely the same transaction.