Butler v. United States

PRYOR, Associate Judge,

concurring in part and dissenting in part:

I concur in parts I-A, III, and IY of the majority’s opinion. I respectfully dissent from parts I-B and II, however.

With respect to part II of the majority’s opinion, considering Abdul-Mani’s accessory after the fact conviction, I would hold— applying the familiar test regarding sufficiency of the evidence, Crawford v. United States, 126 U.S.App.D.C. 156 , 375 F.2d 332 (1967) — that there was ample evidence from which reasonable jurors could conclude, beyond a reasonable doubt, that appellant Abdul-Mani was guilty of the offense charged.

The common law, as modified by D.C. Code § 22-106 (1981), requires the government to prove that the alleged accessory knew that the principal committed a crime and that he rendered assistance in order to hinder the latter’s apprehension, trial or punishment. Clark v. United States, 418 A.2d 1059, 1061 (D.C.1980).

In this case, the government’s evidence consisted of accomplice Hunter’s testimony outlining the planning and execution of the assassination; the circumstances surrounding the relationship between the principal Belfield and Abdul-Mani; Abdul-Mani’s rental of the car upon Belfield’s request; the “highly publicized” nature of the assassination including the fact that several early reports identified Belfield; Abdul-Mani’s private visit to accomplice Butler in the D.C. Jail shortly after the assassination; Belfield’s final instruction to accomplice Hunter to tell Abdul-Mani to report the car stolen; Caffee’s call to Abdul-Mani forwarding Belfield’s order; Abdul-Mani’s false report that the car had been stolen and his false statements concerning where he had last left the car; and finally, Abdul-Mani’s perjury before the grand jury.

From this evidence, the jury could have concluded reasonably that Abdul-Mani knew that Belfield had participated in the Tabatabai killing when he reported the car stolen. The evidence is admittedly circumstantial, but the heavy media coverage of the crime, coupled with Abdul-Mani’s admission that he “read the papers like everyone else,” and his private and hurried conference with accomplice Butler on July 28, permits the reasonable inference of Abdul-Mani’s knowledge. 1 This inference is all that is required, of course, to send the question to the jury.

Similarly, I think that appellant’s false report that the rental car had been stolen could, under the circumstances, be viewed by a reasonable jury as a deliberate effort “to hinder the felon’s apprehension.”

*450 It is apparent that I differ with the majority on two aspects of this question. Initially, I do not read the prior decisions to hold that the government must prove that the accessory’s assistance did, in fact, help the principal make good his escape. It is enough that the accused knowingly took overt steps with a view — successful or not — toward rendering aid. See United States v. Honesty, 148 U.S.App.D.C. 255 , 459 F.2d 1279 (1971) (where a murder suspect was tracked by police officers to an apartment shared with his wife, she unsuccessfully blocked a bathroom door to help him elude police; the court concluded that her overt acts served as an adequate basis for conviction). Thus, I submit that it is the character or nature of the accessory’s act (along with the requisite intent) which is paramount, not the success or failure which the principal encounters in seeking to escape. 2 See Maddox v. Commonwealth, 349 S.W.2d 686, 689 (Ky.1961) (any assistance given to hinder apprehension of felon is sufficient to support accessory conviction, although certain types of acts, such as the giving of charity or not disclosing the crime, do not as a matter of law tend to hinder apprehension).

A second area of disagreement touches the legal concept of impossibility. My review of the record does not lead me to conclude that, when Abdul-Mani reported the car stolen on July 31,1980, Belfield had already “effected” his escape. I do not think that the government concedes this point on appeal. Belfield was last seen in Montreal on July 23. The fairest reading of the record holds that there is no evidence showing Belfield’s whereabouts after that date.

This notwithstanding, I think it unwise for the court to hold as a matter of law that one cannot “render aid designed to hinder apprehension,” etc., to one who is conceded to be beyond the reach of law enforcement authorities. What this holding does in effect is to superimpose the requirement of actual or possible assistance upon the common law offense, and create commensurately the defense of impossibility to an accessory charge. I find no authority for this position, 3 and believe it to be based upon an unsound view of why the legislature has chosen to punish accessories in the first place.

The current jurisprudential trend is to eliminate the defense of impossibility. Commonwealth v. Henley, 312 Pa.Super. 564 , 459 A.2d 365, 367 (1983); see, e.g., State v. LaTraverse, 443 A.2d 890, 893 (R.I.1983) (judicial abolition); State v. Henderson, 416 A.2d 1261, 1264 (Me.1980) (statute); see generally Model Penal Code (U.L.A.) § 5.01 (1974). The policy underpinning this trend is the traditional common law view that the culpability of an actor is best judged solely by his manifested intent and conduct. See, e.g., People v. Dlugash, 41 N.Y.2d 725 , 726, 363 N.E.2d 1155 , 1156, 395 N.Y.S.2d 419 , 420 (1977) (“The ultimate issue is whether an individual’s intentions and actions, though failing to achieve a manifest and malevolent criminal purpose, constitute a danger to organized society of sufficient magnitude to warrant the imposition of criminal sanctions.”); *451 State v. Gosser, 33 Wash.App. 428, 437 , 656 P.2d 514, 519 (1982) (purpose for abolition of impossibility defense is to punish “culpable intent”) (quoting State v. Davidson, 20 Wash.App. 893, 897-98 , 584 P.2d 401, 404 (1978)). This culpability, it is believed, should not be mitigated by external circumstances outside the actor’s control that are later ascertained by appellate courts reviewing cold transcripts with twenty-twenty hindsight. See generally Model Penal Code Tent. Draft No. 10, Article 5, at 30-38 (1960) (discussing rejection of impossibility defense).

If Abdul-Mani reported the car stolen on July 31 with the belief that Belfield needed such assistance to perfect his escape, then in my opinion the conviction should stand regardless of whether Belfield was actually safe in Iran on that date. Because I believe that the evidence adduced at trial reasonably permits such an inference, I would not reverse the jury’s verdict.

Although I accept the rule set forth in part I-A of the majority’s opinion regarding the quantum of proof necessary to establish the existence of a conspiracy as a predicate to admitting coconspirator hearsay evidence, I think the challenged evidence, in the main, was not hearsay because it would have been admissible, regardless of the truth asserted therein, as showing relevant circumstances surrounding Abdul-Mani’s actions as an alleged accessory. Therefore, I cannot join in part I-B.

With the exception of the sufficiency of accessory charge against Abdul-Mani and the related analysis of hearsay evidence, I join in the majority opinion in all other respects.

. Although Clark v. United States, supra, indicated that the alleged accessory did not have "personal knowledge” of the principal's crime, it is not clear from that opinion that such knowledge is required to sustain a conviction. The common law of accessory after the fact, from which our own jurisprudence is derived, id. at 1061, requires only that the accessory possess information sufficient to give him reasonable grounds to believe that the principal had committed a felony. See State v. Lynch, 79 N.J. 327, 337-39 , 399 A.2d 629, 634 (1979). I believe that this was established by the government’s evidence in the instant case.

. The majority interprets the elements of the offense to require that the aid rendered had or might have had the effect of hindering the principal’s apprehension, rather than requiring proof that the accessory's action was designed (intended) to have that effect. Here, Abdul-Mani’s false report of the stolen car could be viewed by a reasonable jury as aid designed to hinder Belfield’s apprehension, trial or punishment. See State v. Hicks, 22 N.C.App. 554, 557-58 , 207 S.E.2d 318, 320-21 (1974) (giving false testimony for purpose of helping principal supports accessory charge) (quoting State v. Potter, 221 N.C. 153, 156 , 19 S.E.2d 257, 259 (1942)).

. My research has disclosed one case noting expressly that the accessory “did aid” the principal, State v. Hicks, supra note 2 , 22 N.C.App. at 558 , 207 S.E.2d at 321 , but no cases holding that a showing of actual aid is a necessary element of the common law accessory offense. In most of the published cases, it is fairly obvious that the accessory’s action did actually aid the principal in some way. In my view, however, this is not a sufficient reason to require the government to make such a showing in every case.