United States v. Jose Campos Davila

715 frightened. at trial improper mony showed she that the order was ing arguendo, excludable, facts, Atkins was not these it cannot be said and the time In view of seventy brought to trial within its jury scope was still exceeded the of discretion (1) July periods If we exclude the 469 days. finding Jacquillon, intimidation. See days)2 through August (twenty-seven 5 10 F.2d at 385. through September (2) September of the district court is af- judgment The from only three a count (assuming days),3 firmed. (date arraignment)4 to October June 29 AFFIRMED. trial) gives days. Since (date seventy Atkins’ days elapsed between

only seventy viola- there was no

arraignment this case. Speedy Trial Act in

tion of Sufficiency of the Evidence

IV. contends that finally Atkins America, STATES UNITED rea prove beyond Government failed Plaintiff-Appellee, that the was commit sonable doubt crime violence, intimida ted “force 2113(a). Because DAVILA, tion” under U.S.C. Campos § Jose disjunctive, is worded the statute Defendant-Appellant. of “intimi proof a reasonable doubt beyond No. 82-1090. sufficient, though the in dation” is even conjunctive. Appeals, was worded dictment in the States Court Fifth Jacquillon, See United States Circuit. (5th Cir.1972), 410 U.S. Feb. 1983. (1973). 35 L.Ed.2d 604 93 S.Ct. sufficiency of the evi Banc considering Rehearing En Rehearing

dence, must 11, 1983. this Court read evidence Denied March light most favorable to the Government and must reverse convictions neces jury reasonable must

finds doubt have entertained a reasonable

sarily guilt. v. Unit

as to the defendant’s Glasser Ocanas, supra;

ed cert. de

nied,

L.Ed.2d 840 favorably

Viewed most

Government, clearly reflects evidence that At showed Testimony

intimidation. bank, the teller presented

kins entered read, your

with a note which “Pull out teller, pull gun.” I’ll out a The

money or that Atkins Cunningham,

Mrs. testified picked her as he

lunged cage toward teller’s left Her testi the note and the bank.

up begins count on June pursuant This Court its U.S.C. 2. Excluded day arraigned. day 3161(h)(1)(F). after defendant was § arraignment itself does not count 70-day period. See 18 U.S.C. basic pursuant U.S.C. 3. Excluded 768; Jodoin, Furlow, 3161(c)(1); F.2d at § 3161(h)(1)(G). § 237 n. 7. F.2d at Jr., Montemayor, Nass, Ruben A. Harry Antonio, Tex., for defendant-appellant. San Powell, An- Sidney Atty., Asst. U.S. San tonio, Tex., plaintiff-appellee. INGRAHAM, McCarthy and WIL- TATE Before 1166, 1171, 22 LIAMS, L.Ed.2d 418 Judges. Circuit (1968); Montoya-Camacho, States v. United WILLIAMS, Judge. Circuit JERRE S. 480, 486 (5th Cir.1981). This factu appear al the record. basis must on initially indicted with two Davila was 931, Dayton, States v. 604 F.2d 940 perjury to in others for suborn banc), denied, Cir.1979) (en cert. 445 U.S. and 1622. violation of 18 U.S.C. 371 §§ 904, 1080, L.Ed.2d agreement, these Pursuant An court of the acceptance the defend dismissed, pleaded and Davila charges were be ant’s deemed to a factual guilty to count of information guilty a one bill of requirements on each these finding misprision charging felony him with of clearly is reviewable under the erroneous two violation 18 U.S.C. 4. The other of § Jack, v. standard. United States 686 F.2d co-conspirators guilty, did not plead 226, (5th Cir.1982); United States v. Subsequent at trial. to this acquitted were (cid:127) Dayton, at supra sentenced, to acquittal, prior being Dav- guilty plea, ila moved to withdraw his In order sustain a conviction for claiming alia that it would be an inter misprision government of a the felony, pun- of him to be abuse discretion allow committed, must that a prove felony the failing report ished for of knowledge felony, that Davila had the gone had conspirators when the themselves authorities, that he to notify failed and that motion, the free. court denied The district step he an affirmative to conceal the took years, was sentenced to three and Davila Gravitt, crime. United States years supervised pro- suspended to three of 123, (5th Cir.1979); that appeal, bation. Davila claims there On Hodges, 566 F.2d to support was an factual basis insufficient Hodges, As this mere explained Court under Rule 11 of the Federal felony is not failure to sufficient. the Rules of Procedure. alter- Criminal the Violation of statute addition native, that he cannot be convict- argues he ally positive some act requires designed ac- felony following ed of conceal from authorities fact that perpetrators felony. of quittal been committed. See United has Finally, urges that the district court he (untruthful statements); Hodges, States v. allowing abused in not with- its discretion Gravitt, (suppression of plea. drawal of the States, Lancey evidence); denied, (9th Cir.1966), cert. F.2d 407 Factual of Plea I. Basis (har 922, 87 17 L.Ed.2d 145 of validity Davila first attacks the criminal). of boring on the of trial his conviction basis of Upon receipt plea, Davila’s 11(f) Rule of comply court’s failure judge requested govern- district Procedure. the Federal Rules Criminal plea. ment state the factual basis not en requires Rule a court replied: government determining tertain a without togo an If Davila’s case would is made with under Mr. Sep- that on charge Government would establish standing of the nature of Davila con- there is factual tember defendant unless is satisfied that at re- H. tacted Florencio Rendon plea. basis Fed.R.Crim.P. Robert J. Kuhn. Mr. Davila quest this basis must be inquiry as to factual $10,000 to assist a client sufficiently specific” offered Rendon “precise enough meeting, Kuhn’s. A was held the defendant’s conduct was Mr. determine that Antonio, Texas, September on San “within the ambit of that defined crimi Kuhn, Davila, and meeting this 1978. At nal.” Jiminez v. United Florencio Doyle requested Huckabee Cir.1973), D. he testimony change H. Rendon to (1974); 40 L.Ed.2d 118 Johnson, in the trial of Frasier given government had Jules alleged only Brignon in the District of Tex- Southern the defendant had known of the con- defendants, including as. The de- spiracy and had failed to report it to au- Davila, through change fendant thorities. There was no absolutely showing testimony require would Rendon to lie. on the engaged record that he had in any Kuhn Rendon and Davila agreed pay designed actions to conceal the commission $15,000 they split among which were to of the crime. Here there is no such omis- themselves. Mr. Davila would hold the government sion. On the record the has giv- until the false money testimony alleged an agree- affirmative act—Davila’s meeting en. A second was held in San ment to be the stakeholder payoff Antonio, Texas, on October manifestly goes beyond —which wherein Mr. Rendon met Kuhn and mere knowledge of the crime and failure to Huckabee report it.

THE COURT: Excuse me. Are the facts receipt possession Similar of evidence true, related so far from Mr. Pierce Mr. regularly has been considered a sufficient Davila? support affirmative act to conviction under Yes, your MR. DAVILA: honor. misprision the statute. In United States v. THE satisfactory. COURT: That’s I will Gravitt, supra, example, for the defendant

find the factual base exists for a drove to the where place the fruits of a voluntarily and that it has been made. robbery were hidden and carried the money finding guilt will enter a at this apartment to his to be divided. These ac- time. tions were held to be affirmative acts ade- quate support to conviction under the mis- Davila claims that the record only discloses prision statute. Possession of money stolen that he failed to come forward and inform during robbery a bank a deemed suffi- authorities of the conversations revealing a cient affirmative act in United States v. perjury, to suborn and conse- King, Cir.1968). So also quently, that the factual basis of the was removal of stolen whiskey from a does not demonstrate that he took “affirm- truck, replacement of whiskey the ative steps conspir- to conceal the crime” of sandbags, driving and then the of the truck acy. government contends to suspicion orig- Arizona to divert from the affirmative step to conceal was satisfied Stuard, inal thieves. agreed when Davila approximately to hold (6th Cir.1977). F.2d 1 $15,000 in payoff money until the false tes- timony given. Davila agreement contends that his to argues Davila that a recent decision of hold was an extension of the Court, Johnson, United States v. conspiracy, crime of incidentally F.2d 1225 dispositive is in his served to cloak the commission the felo- Johnson, favor. In pleaded defendant ny. argues giving He that it would be misprision to in exchange prosecution punch” “a double if we allowed government’s agreement to drop charges the government rely to on the facts of the against him of conspiring export illegal to prove the crime of concealment of arms and ammunition. This held felony. Court But Davila overstates this situ- proof there had been no affirm- ation. It true requisite act of concealment, ative act of and consequently, concealment here involves an action closely that there is, was insufficient factual for basis related to the crime. underlying This guilty plea. however, the defendant’s But Davila’s a necessary consequence of Davi- reliance on this case is misplaced. plea bargain upon While it la’s based his decision is true that both conceal, Johnson and the instant agreement rather than a conse- case involve guilty plea misprision a quence of the asserted lack of the act of pf conspiracy, pursuant plea bargain, concealment. In the traditional case, Johnson does not control this case. In act taken stranger to a criminal has pleaded guilty. weighed chances, to conceal He affirmative action some situations, these it is cooperate government of others. and chose to with the crime to evaluate whether that relatively simple in exchange being charged sepa with a designed action was to conceal the person’s accepting rate offense. Before plea, charged mere- being or whether he is crime determined, judge carefully pursuant trial the crime. The ly for his failure to to Rule that the was a knowing and situation. presents instant case different voluntary act. The also made certain Here, indicted for the initially Davila was appreciated that Davila the consequences of act of conspiracy. Consequently, and, his guilty plea specifically, more required support mispri- that a clearly understood necessarily closely sion count will be more guilty involved waiver certain consti original to commission of the crime related tutional rights, including right to trial than it would in situations where ac- accusers, by jury, right to confront one’s in the participate underlying cused did not and the right compelled not to be to incrim crime. Alabama, inate Boykin himself.1 See decisions of the We are aware of the 23 L.Ed.2d Balkcom, Ninth which declared (1969); Circuits Grantling Seventh statute unconstitutional as See also Fed.R. had reasonable applied persons who advisory (1974 Crim.P. committee notes they reported cause to believe that amendment). authorities, they would be plea guilty Once a of has been v. prosecuted themselves. United States entered, non-jurisdictional challenges all to (if reported had King, supra defendants constitutionality are conviction’s waived. authorities, they being would risk crime to Only voluntary an attack on the and know abetters); aiders or United prosecuted as ing plea nature of the can be sustained. Kuh, Cir.1976) 672 v. 541 F.2d States 1083, Bradbury Wainwright, v. 658 F.2d (if reported they defendants denied, 456 (5th Cir.1981), cert. U.S. 1087 possession for prosecuted could have been 2275, 1288 73 L.Ed.2d Jennings, United goods); of stolen States Richardson, (1982). McMann v. (7th Cir.1979) (report of nar- 603 F.2d 25 L.Ed.2d 763 S.Ct. exposed would have defendant to cotics sale (1970). Davila makes no contention that his bribe). Whether charges of solicitation of knowingly, willingly, was not made misprision holding persons guilty or not competent counsel. and with the benefit of would violate under such circumstances His defense of self-incrimination privilege against their self-incrimination plea. waived at the time he offered that Amendment, the Fifth guaranteed by being we find that stake Finally, Fifth implies case no similar

present money was an overt voluntarily payoff holder for the Amendment concerns. Davila was as follows: THE you not required right their listen persist stage nesses have the exchange question COURT: right right heretofore made are entitled to jury credibility. of the through your lawyer. in a to the witnesses to be tried either to be assistance right at proceedings. between plead guilty your Captain present to cross-examine the wit- witnesses in order to test of not election. You have the plead the district of counsel at Davila, and to look at and against you. by At trial plea. not law. you That means guilty judge You have you you are not every or to have have fact, You THE COURT: MR. DAVILA: MR. have they Amendment you At if could not be taken any Captain you plea, understand you only DAVILA: evidence whatsoever of ^[*] understand these would be convicted are called just trial should remain a sentence Davila, therefore, ^[*] described to that, you privilege If Yes, sir, your honor. Yes, you then your rights have, % sir? sir. fairly imposed. by enter a you would be entitled you to remain things, once ^[*] silent, your waive the you. Essentially upon your judge again, your guilt. ^[*] sir? silent, or the Fifth ^[*] Do jury rights silence guilty, own you Do concealment, of Davila’s him with an “affirmative act” of irrespective act of original conspiracy. participation felony. of a mispri- of the application recognize We Original Acquittal II. Davila’s centered in in this case is not sion statute Co-Defendants But, find no au- mold. we the traditional argues Davila next that his convic accept proposition we thority for nor do original his co-de tion is invalid because in a crime cannot also participants acquitted were later of the con fendants to conceal their positive undertake acts spiracy perjury charge. Specifi to suborn misprision law. crime in violation of the cally, the issue is whether the be the stakeholder agreement Davila’s indepen can stand constituted an ade- payoff money viola dently underlying 11(f) to sup- under Rule quate factual basis tion. guilty misprision. port It well here to summarize our conclu- is conviction mis Davila claims the nature of the crime of mis- sions as to precluded by extrapolation is of the prision prision applied as it is to this kind of case. common law rule that the conviction of Judge Tate It is toward this issue that single conspiracy prose one defendant in a dissenting carefully presented directs his upheld alleged cution cannot be if all other in which is opinion. The cases in the trial are co-conspirators acquit same separate found to fail as a crime from the ted. Herman v. See United crime it conceals are cases where the af- denied, (5th Cir.1961) cert. F.2d of concealment is a firmative act 93; U.S. 7 L.Ed.2d United Davila, Here as the stake- crime itself. Sheikh, States holder, doing different something and Cir.1981), to suborn necessary not (1982).2 71 L.Ed.2d 852 While perjury. conspir- Davila was rule law of this traditional current even if he had not acy perjury to suborn Circuit, Albert, stakeholder, act been the and the of stake- recent decisions holding itself was a act not neces- separate Supreme of both this and the Court Court sary original conspiracy, but was an except have limited reliance on the rule that con- affirmative act of concealment of application. applica its narrowest It is not spiracy. ble here. argued it can well be Admittedly, States, In v. 447 United U.S. Standefer because crime of defective 10, 100 (1980), 64 L.Ed.2d 689 S.Ct. self-incrimi- always spectre it raises the a Supreme Court held that defendant ac But for us in this case to nation. it is not aiding abetting cused of in the commis mispri- crime as

decide there can be no such properly offense be sion of federal could virtually always sion because it is self-in- despite acquittal princi convicted of the and bind- criminatory. Years of established pal. government The was held not to be ing contrary. are to the authority on tri putting foreclosed from defendant an essentially additional jury al another had deter simply because which concealed the com- affirmative act principal mined that his was not with which he was felony mission of the charged. also the offenses See United v. Grav- also connected. Cf. United States (5th Musgrave, v. 483 F.2d 331 States ity at 126. The supra, 590 F.2d Cir.1973), U.S. to reveal compel simply offense did not him which, Aiders and abet without 38 L.Ed.2d 315. knowledge of the Rather, more, analogous to self-incriminating. would be ters are at least somewhat nition, “conspiracy.” acquittal justification See this rule is that the existence of a for Goodwin, conspirator precludes possi- F.2d United States v. of all but one (5th Cir.1974). remaining bility agreement of an between the another, negating, by thus defi- defendant and ticulate a applied governing and this has standard the with- co-conspirators, Court conviction uphold Standefer drawal before sentence is separate though in a trial even imposed. Supreme obtained The Court has held that co-conspirators defendant’s named had each pre-sentence withdrawal should be permit- v. acquitted been earlier. United States any ted “if for reason the granting of the (5th Cir.1980). Espinoza-Cerpa, privilege just.” seems fair and Kercbeval questioned In Espinoza-Cerpa, Court States, the rationale of the traditional 71 L.Ed. 1009 rule, case, refused to extend its and in considering the circumstanc observed: scope. Court es under which withdrawal of a acquittal The notion that of one’s imposition per before of sentence should be alleged co-conspirators concludes fact mitted, we have stated that such motions misapprehends their non-complicity liberally should be in favor construed acquittal the true nature of an in the v. Kirshberger accused. United by jury scheme of trial in the American F.2d At the same justice system. long criminal It has been time, however, we have stressed that there recognized juries that criminal in the right 32(d) is no absolute under F.R.Cr.P. are ‘not free to render withdraw a guilty, accept and that guilty’ resulting compro- verdicts from ance of the motion is within the sound mise, confusion, mistake, leniency or oth- discretion of the trial court. The decision irrelevant factors. legally logically er only upon of the court will be disturbed (citations omitted). Id. at 332 it showing abused discretion. find, therefore, applicability We Rodriquez-DeMaya, United States rule is limited to the traditional Cir.1982); United envisioned narrow circumstances Ramussen, justification We find no common law. Cir.1981). The burden is on the defendant conviction, negate extend it Davila’s justification to establish that there is for un- thorough hearing obtained after a withdrawal. agreement, prior to the plea bargain der a alleged grounds The circumstances charged co-conspirators. of his As acquittal numerous, withdrawal are and the lower Supreme “[wjhile sym- Court has said: permit court’s determination of whether metry intellectually of results be satis- “fair ting such withdrawal would be fying, required.” is not Standefer just” depends upon particular facts of States, supra 100 S.Ct. at 2009. upheld each case. Circuit courts have re III. Abuse of Discretion permit with fusal the district court finally urges guilty pleas

Davila that the district drawal of in instances of claims to as the one Davila asked us refusing sympathetic court abused its discretion as guilty plea. allow him to withdraw his Es- here. In United v. Po consider States denied, dell, (2d Cir.1975), Davila contends that it is cert. sentially, unfair 519 F.2d 144 252, concealing him for 46 L.Ed.2d convict sought to with perpetrators example, after its main have been ac- the defendant grounds upon 32(d) guilty plea He relies Rule of the his on .the dual quitted. draw the was insuf plea Rules of Procedure.3 that the factual basis of Federal Criminal been induced 32(d) plea ficient and that the permits post-sentence While F.R.Cr.P. prosecutor. of the guilty plea only prevent by promises unfulfilled withdrawal that the recognized does not ar- The Circuit injustice, manifest the section Second Procedure, suspend- imposed imposition of sentences Rules of Rule 3. Federal Criminal ed; injustice 32(d) provides: manifest the to correct judg- may sentence set aside the court after (d) plea guilty. A Withdrawal of motion permit defendant ment of conviction and the plea to withdraw a or of nolo con- plea. to withdraw his sentences tendere be made before him; against charge detail the nature of the to outline in judge had failed Tivis, (5th Cir.1970), charge, of the and necessary F.2d elements States spirit, the had “violated prosecutor the the claimed he had been where defendant not letter,” promise id. at of its not the at the inadequately represented by counsel sentence. Neverthe- jail a to recommend making plea; time of his less, that the defendant had the court ruled (2d Cir.1964) cert. Hughes, prosecutor’s promise, upon not relied denied, U.S. of the explanation judge’s and that 178, where the defendant claimed L.Ed.2d firm factual to show a charges “enough by his had been induced threats of plea Consequently, the deni- plea. basis” attorney; and United prosecuting an abuse of did not constitute al of the Arrendondo, discretion. judge’s the trial States, 392 Also, Kirshberger where the defendant claimed L.Ed.2d Cir.1968), defendant F.2d 782 his newly prove discovered evidence would right to an waiving after his pleaded guilty appel In all of these cases the innocence. sentencing, sought Prior to he attorney. upheld late court the district court’s denial that he grounds on the withdraw his of the motion to withdraw counsel, and represented had not been prior sentencing. prosecu- promised that he had been It is obvious that resolution of these cases him charges against certain state tor that on whether the depends, large degree, Following hearing, be dropped. would merits appellate court is convinced of the motion and district court denied the claims. As in all underlying petitioner’s affirmed, finding allegations that the Court evidence, involving sufficiency of the cases vague were “rather promise about the the authoritative value of such decision is “firmly we were con- uncertain” and that limited. Each case must be evaluated on its “freely, vinced” that however, may generalize, own facts. One voluntarily understanding^ entered.” extent the cases illustrate Id. at 786. to find that the trial distinct reluctance Again, in Barker v. United denying discretion in court has abused its Cir.1978), F.2d 1219 the defendant motion. the withdrawal plea, claiming sought withdraw court be re- Davila asks that the district at the mentally incompetent he was time because his two quired to withdraw his judge refused making plea. The lower alleged original conspir- companions in the issue of hearing to conduct a full on acy acquitted. have been Because court-appointed competence, and utilized with the crime of finally charged was not independent psychiatrist rather than an rather with conspiracy, but the defendant. On the basis requested by crime, claim is not identical to that evaluation, doctor’s court-appointed whose co-defendants have of a defendant the defendant sufficient declared pur- But for our guilty. found not been plea. to enter a valid ly competent close, indeed, en- analogy poses ruling, found upheld Tenth Circuit for Davila than does sympathy less genders hearing competence on the lack of a full co-defendant of a convicted the situation judge’s the trial discre was not an abuse of in the same Erlenborn, when the other defendants tion. also United States v. See ad- Davila obtained acquitted.4 where the de crime are 483 F.2d 165 bargain.5 Davila is not vantages misunderstood the in his fendant claimed he had earlier, gave opportunity explained acquittal co-par- government Davila the As 4. charge prove plead guilty than that ticipants to a lesser in a crime does not original He was faced his co-defendants. crime did not occur. Rosecrans “risk”, accepted by exposed never men, conspir- being convicted of other two acy. Basically, gambled on whether the Davila inno- tactical miscalculation not considering as to his making any protestations fact, acknowledged that Francois freely possibility In Davila co-defend- cence. [the guilt during as to his testify and testified would not at his own guilt his ant] men. require of the other two such a tactical error does not the trial plea.” to allow withdrawal of the court Id. involving found two cases We have added). at (emphasis 221. abused its whether the trial court question refusing permit in withdrawal discretion is here us asking Davila to insulate him acquitted. after co-defendants have been consequences from the of a similar “tactical States, 188 F.2d 355 In Powers v. United guilty plea A “frequently error”. involves Cir.1951), plead- defendant Powers making judgments”. of difficult transporting a stolen vehicle ed Richardson, supra, McMann at U.S. Pending sentencing interstate commerce. 769, 90 at 1448.6 Were withdrawal S.Ct. illegally on bond and left he was released every automatic in case where the defend testifying against to avoid his the state ant decided it would be to his best interest co-defendant. The co-defendant was subse- jury, his present “guilty pleas case and Powers moved to quently acquitted, gesture, temporary would become mere plea. his The district court de- withdraw meaningless formality reversible at the affirmed, finding We nied the motion. defendant’s whim.” United v. Bark of discretion in there had been no abuse er, (D.C.Cir.1975) (en 514 F.2d refusing change plea. to allow Powers to his banc), 2420, 44 L.Ed.2d 682.

The second case is in Government of the (3d Virgin Berry, Islands v. weighed his options and Cir.1980). There also the Circuit Court af- knowingly and intelligently decided not to the district court’s denial of the de- firmed presenting jury. risk his case to a He vol plea. fendant’s motion to withdraw his untarily acknowledged guilt intelli defendant, pleaded guilty had Berry, gent understanding of the nature of the degree pursuant second murder to an charge consequences plea. and the of the government with the that addi- agreement deliberate, Entry guilty plea was a him charges against tional would be We do that the reasoned decision. not find dropped. Berry agreed testify permit refusal of the district court to him to person charged another government against withdraw his was an abuse of discre days murder. robbery the same Six tion. later, the co-defendant was found not to with- guilty, Berry filed a motion IV. Conclusion plea. Berry apparently draw his be- agreement keep We hold that Davila’s take lieved that the co-defendant would payoff money perjured until the testi- testify Berry stand at his own trial and mony given was an affirmative act of person was the who had shot the victim. meeting requirements testify. The co-defendant did not Conse- that his conviction U.S.C. § claimed, quently, Berry he had not made a independently can stand “voluntary intelligent plead choice” to charge, and that the district court did not In that the lower guilty. finding court had denying his motion to abuse its discretion refusing not abused its discretion in to al- plea. Accordingly, withdraw deci- Berry low to withdraw his under these court must be affirmed. sion of the district circumstances, the Third Circuit stated that “Berry and his counsel have made a AFFIRMED. government prove conspiracy charge. even from defendant could “tactical” now, complain after He cannot be heard to to assert his innocence. North who continues Alford, losing gamble. Carolina L.Ed.2d 162 fact, long so as a factual basis for the may accept exists under Rule a court such a Kuhn, Davila,

TATE, Judge, dissenting: and Huckabee were Circuit charged conspiracy with the per- suborn now, dissent. Until it has respectfully jury present from this witness. Davila’s (and other) been the law of this circuits guilty misprision was the result cannot be of mispri- that an accused felony (an sion of affirmative act of plea bargain on the eve of trial. The felony concealment of a known to the of- against more serious offense him fender, this communicating without knowl- dismissed, was he pleaded guilty possible), as as edge to authorities soon a suspended received sentence on a su- 4,1 U.S.C. where the conduct concealed § perseding lesser-punished indictment of the constitutes the accused’s commission of the misprision. (Although offense of Davila co- Johnson, offense itself. United States v. operated fully prosecution with the and tes- juris- Under in accord with the government’s tified theo- cited, prudential interpretations to be by ry conspiracy charges, al- other protection reason of the Fifth Amendment leged coconspirators acquitted.) were self-incrimination, against an offender not be if he does not majority holds that the requisite af- immediately report his own criminal con- firmative act of concealment of the crime duct to law enforcement authorities. When agreed (and occurred when Davila to hold the “factual basis” for a of guilty, fact, $15,000 actually held) in in order to 11(f),2 Fed.R.Crim.P. does not disclose that juror pay following bribed by “the conduct admitted the accused con- nevertheless did not that fact imme- stitutes the offense in the informa- diately to law enforcement authorities. tion,” Johnson, supra, 546 F.2d at Thus, the majority holds the crime of mis- by conviction such must be set aside on prision was by committed Davila’s failure to id., appeal, 546 F.2d at 1227. reveal immediately to law enforcement au- Here, the sordid facts underlying ap- $10,000 thorities that he holding was peal an alleged conspiracy concern between purpose bribing juror, thus affirma- (Kuhn), a lawyer intermediary (Hucka- an tively concealing conspiracy (in which bee), (until and the defendant Davila then a played he a principal part) to bribe highly respected police officer) to bribe a juror. (Rendon) witness in a federal criminal trial provide testimony. false material Davi- In so holding, majority upon relies la’s in was to offer upholding decisions acts of affirmative $10,000 change to Rendon to testimony concealment-misprision nonrevealing given (an he had a former trial offer subsequent accused of acts to the actual $15,000 Rendon accepted), to receive from offense. No decision cited where the the lawyer and to hold it until after the affirmative act of concealment was a fact testimony given, false at which time he constituting part of the actual substantive would pay remaining Rendon and divide the here, felony allegedly being $5,000 concealed — between himself and Huckabee. The conspiracy, very which the act of conceal- discovered, conspiracy was and Davila was (Davila’s ment upon now relied holding $14,000 arrested with approximately still in possession (the which, course, pay the bribed bulk of witness after Rendon). intended to bribe the witness his false was the testimony), identical crimi- provides: purpose requirement 1.' 18 4§ U.S.C. behind such a is to protect voluntarily may plead a defendant who Whoever, having knowledge of the actual understanding with an of the nature of the cognizable commission of a a court charge, realizing but without that his conduct States, of the United conceals and does not actually does not fall within the definition of possible as soon as make known the same States, charged. McCarthy person some or other civil or mili- tary authority under the United shall Johnson, (1969); L.Ed.2d 418 United States v. imprisoned $500 be fined not than more years, not more than three or both. and part sequent independent of of forming a substantial the substan- nal conduct felony allegedly commission of the Davila’s tive To the contrary, offense. where the shown, As will this is being concealed. be of upon accused’s act concealment relied the of interpretations decisional contrary a by constitutes of substantive offense results, in viola- statute and misprision the him, have the courts that uniformly held protection the Fifth Amendment tion of misprision, the crime of is not U.S.C. § self-incrimination, holding against committed. if he does guilty misprision an offender of Johnson, circuit, United States In this criminal immediately report not his own (1977), 546 F.2d 1225 vacated a of prosecutorial authorities. conduct guilty misprision pursuant to a bar- majority sug- somewhat persuasively the gain, where factual basis shown was gests holding money that Davila’s act of only report the accused had failed to separately could be viewed as violations, several firearms control criminal of independent conspiracy, especially he with which himself was with ini- others conspiracy charge against since the (As here, charges tially charged. for view, was dismissed. this himself Under dismissed, these firearms felonies were had been only is as if other three return for the defendant’s of was conspiracy, with and Davila charged misprision.) We there mere noted that the misprision, lesser-pun- with a charged report felony failure to a does consti- not offense, affirmatively because he con- ished misprision, tute 18 U.S.C. § by holding cealed its commission showing and that the that he had failed to to bribe the However juror. to be used report the criminal transactions in which he is, be attractive view it cannot sus- involved himself was does not constitute an First, charged, tained. here Davila was not step in affirmative others, concealing a with misprision. crime so as constitute concealing which he conspiracy in F.2d at 1227. Second, coconspirator.3 was a even himself were an offense charged circumstances, his conduct as Under similar read from which separate he them, the decisions of other are to circuits part, report played require him to The most are similar effect. recent of them own criminal conduct to law enforcement v. Jennings, United (7th States implicate authorities would a violation of Cir.1979); Kuh, United protection Fifth accused’s Amendment Cir.1972); United States and against compulsory self-incrimination —not King, In Jen- Cir.1968). F.2d 694 intent, any presumed legislative within nings, misprision conduct indeed in- by not sustainable courts if the accused’s failure to that a dealer tended.4 in drugs possessed and distributed them, up the accused had himself set where upon majority, relied by

The decisions purchase drugs of these from the dealer held that the offense which committed, agent; by all involve an affirmative an undercover the conviction was Kuh, defendants, by 603 F.2d at act of concealment sub- reversed. 652. superseding person military authority indictment to which Davila in civil or within pleaded guilty charged: States; the United all in violation of Title Code, September That on or Section 4. about including January in the West- Scott, Texas, Law 526 In LaFave Criminal ern District of Defendant JOSE C. having knowledge (1972), brief DAVILA discussion of the crime does the commis- felony cognizable by interpretation court of sion not indicate such has is, conspiracy to suborn repeal of this been advanced notes that the Kuhn, perjury Doyle Robert J. D. Hucka- little-used statute has been recommended bee, and Jose C. Davila from Florencio Ren- on of Federal the National Commission Reform don, wilfully did conceal the same and did Laws, in hinder- favor of an offense of Criminal not, possible, as soon as known the make ing enforcement officers. law commission said other misprision was dismissed the indictment court, where the offense by the district HERCULES, INC., Plaintiff, subsequent to the offense was that v. received a substantial these defendants knew had been money they sum of CO., INC., et STEVENS SHIPPING car, and that their from an armored stolen al., Defendants, money constitut- of this stolen concealment necessary act to consti- ed the affirmative INC., CO., TOWING DETCO the trial court’s dismissal misprision; tute Defendant-Appellee, King, was affirmed. of the indictment a bank robber was convicted the brother of his affirmative act of where misprision, CO., & AETNA CASUALTY SURETY receipt alleged be Intervenor-Appellant. robbery after the some of the stolen (and source) where he had

(knowing of its HERCULES, INC., Plaintiff, robbery initially when the present been discussed, take although he did not it); although the conduct pointing out CO., INC., et STEVENS SHIPPING a violation of other might have constituted al., Defendants, (e.g., knowingly receiving criminal statutes stolen the court held that it did not money), CO., TREATING ESCAMBIA misprision, constitute the crime of 18 U.S.C. Defendant-Appellant, 4, and reversed the conviction. § decisions, point- In all of these the courts (as case) in the present ed out that is true CO., INC., DETCO TOWING report the immediate authorities of Defendant-Appellee. constituting affirmative allegedly the acts have furnished evidence concealment would 78-1505, Nos. 78-1887. prosecute sufficient the accuseds for a Appeals, United States Court crime, and that 18 U.S.C. would uncon- § Fifth Circuit.* stitutionally pro- Fifth violate Amendment interpreted tections if it were indeed Feb. 1983. an individual to conduct that compel might he had reasonable cause fear lead

to his and conviction of a crime. prosecution Fifth majority dismisses these that, by noting

Amendment concerns

pleading guilty, Davila was informed and that he Fifth

clearly understood had waived I rights.

Amendment do not follow the conduct,

majority’s reasoning that which

could not in itself be a violation of the statute,5 be con- could somehow

verted into guilt of substantive offense voluntarily plead-

because an individual had

ed to it. respectfully therefore dissent from

opinion my esteemed brothers. * case, 9(1) is, (as be), Fifth Section of Public

5. That if so construed need not Former Circuit unconstitutionally require would an individual Law 96-452 —October himself, to incriminate in violation of the Fifth Amendment.

Case Details

Case Name: United States v. Jose Campos Davila

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Feb 7, 1983

Citation: 698 F.2d 715

Docket Number: 82-1090

Court Abbreviation: 5th Cir.