PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                  No. 98-4466

ADHIAMO MITCHELL,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CR-98-57)

Argued: April 9, 1999

Decided: May 20, 1999

Before HAMILTON, MOTZ, and TRAXLER, Circuit Judges.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Motz wrote the
opinion, in which Judge Hamilton and Judge Traxler joined.

_________________________________________________________________

COUNSEL

ARGUED: Michael Cornell Wallace, Sr., Assistant United States
Attorney, Richmond, Virginia, for Appellant. Keith Nelson Hurley,
CAWTHORN, PICKARD & ROWE, P.C., Richmond, Virginia, for
Appellee. ON BRIEF: Helen F. Fahey, United States Attorney,
James B. Comey, Assistant United States Attorney, Richmond, Vir-
ginia, for Appellant.

_________________________________________________________________
OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

After a jury found Adhiamo Mitchell guilty of harboring and con-
cealing a fugitive, the district court concluded that the Government
had failed to prove that he had engaged in any affirmative act of har-
boring and so granted his motion for a judgment of acquittal. Because
the Government put forth evidence from which a rational jury could
conclude that Mitchell committed an affirmative act of harboring, the
evidence was sufficient to support his conviction. Accordingly, we
reverse the judgment of acquittal and remand for reinstatement of the
verdict and entry of judgment against Mitchell.

I.

In 1998, Eric Jeter was wanted for conspiracy to commit a bank
robbery in New York. During January of that year, Jeter stayed at a
Richmond apartment that was rented to Denis Somerville and his sis-
ter Tasha. Some time in January, Mitchell, accompanied by Jeter's
girlfriend, Tiesha, traveled from New York to that same Richmond
apartment.

On January 22, six law enforcement officers, including FBI agents
and local policemen, went to the Richmond apartment. FBI agents
Charles Sell and Robert Heinzman knocked on the door. Mitchell,
who testified on his own behalf, stated that on the day the officers
came to the apartment he had been living in the apartment for three
or four days. Mitchell recounted that when the agents knocked, he had
been dozing on the couch and was sick and under the influence of
cold medicine. In response to the knocking, Mitchell opened the front
door part way and remained behind the door. Agent Sell informed
Mitchell that the agents were looking for a person named Eric Jeter
and showed Mitchell a photograph of Jeter. Mitchell told Agent Sell
that he was alone in the apartment and that he did not know Eric Jeter.
(Mitchell testified at trial that Jeter had numerous nicknames and ali-
ases and that he did not know Jeter as Jeter, but Mitchell admitted that
he lied to the agents when he told them he was alone and did not
know the person in the picture). Agent Sell, with his gun at his side,
asked permission to enter the apartment. Mitchell denied access

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unless Agent Sell produced a warrant. Agent Sell then asked one of
the other agents to retrieve the warrant from the car.

In the meantime, another agent radioed the officers that he saw an
arm "peeling the blinds down at a window" in the rear of the house.
In response, five or six officers charged the door. Agent Sell testified
that Mitchell attempted to push the door closed, and the officers over-
powered him in two or three seconds. Sell recalled Mitchell yelling
as the officers attempted to enter. Mitchell testified that he "pushed
the door back," resisting the officers's entry, because his foot got
caught when the officers rushed the door. Subsequently, the police
apprehended Jeter in the apartment and arrested both Jeter and Mitch-
ell.

After consideration of this evidence, the jury found Mitchell guilty
of harboring and concealing a fugitive in violation of 18 U.S.C.A.
§ 1071 (West 1976 and Supp. 1998). The defense then renewed its
Rule 29 motion for acquittal. See Fed. R. Crim. P. 29. After briefing
and argument, the district court granted the motion. The court prop-
erly recognized that "some affirmative action is required to harbor or
conceal within the meaning of § 1071," and then found that in this
case "the impetus for the force that was confronted began with the
government," not Mitchell. For this reason, the court concluded that
the Government had not proven that Mitchell took any affirmative act
to harbor or conceal Jeter. The Government appeals.

II.

Initially, Mitchell contends that the Government lacks authority to
pursue, and we lack jurisdiction to hear, this appeal. Mitchell main-
tains that 18 U.S.C.A. § 3731 (West 1985) provides the exclusive
authority for appeals by the Government in criminal cases. Because
that statute does not explicitly refer to an appeal from a judgment of
acquittal after a jury verdict of conviction, he asserts that the Govern-
ment lacks authority to appeal here.

The argument is without merit. Both the Supreme Court and this
court have previously confronted, and squarely rejected, this claim.
See United States v. Martin Linen Supply Co., 430 U.S. 564, 568
(1977) (in § 3731 "Congress intended to remove all statutory barriers

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to Government appeals and to allow appeals whenever the Constitu-
tion would permit. . . . Therefore unless barred by the Double Jeop-
ardy Clause . . . appeals by the Government from the judgments of
acquittal . . . are authorized by § 3731.") (internal quotation marks
omitted); United States v. Steed, 674 F.2d 284, 286 (4th Cir. 1982)
(en banc) (same). Moreover, the "Double Jeopardy Clause does not
bar a Government appeal from a ruling in favor of the defendant after
a guilty verdict has been entered by the trier of fact." United States
v. DiFrancesco, 449 U.S. 117, 130 (1980). This is so because "rever-
sal on appeal would merely reinstate the jury's verdict, [so] review of
such an order does not offend the policy against multiple prosecu-
tion." United States v. Wilson, 420 U.S. 332, 344-45 (1975).

Accordingly, we have jurisdiction to consider the Government's
appeal and now turn to the question of the sufficiency of the evidence
to sustain the conviction.

III.

When reviewing a district court's post-verdict judgment of acquit-
tal, we must sustain the jury's verdict "if there is substantial evidence,
taking the view most favorable to the Government, to support it."
Steed, 674 F.2d at 286 (internal quotation marks and citation omitted).

The statute at issue here, 18 U.S.C.A. § 1071, punishes any person
who

          harbors or conceals any person for whose arrest a warrant
          or process has been issued . . . so as to prevent his discovery
          and arrest, after notice or knowledge of the fact that a war-
          rant or process has been issued for the apprehension of such
          person.

Conviction under this statute requires that the Government prove
beyond a reasonable doubt that (1) a federal warrant has been issued
for the fugitive's arrest, (2) the harborer had knowledge that a warrant
had been issued for the fugitive's arrest, (3) the defendant actually
harbored or concealed the fugitive, and (4) the defendant intended to
prevent the fugitive's discovery or arrest. See United States v. Silva,
745 F.2d 840, 848 (4th Cir. 1984).

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In its consideration of the motion for acquittal, the district court
found that the Government presented evidence sufficient to satisfy the
first, second, and fourth Silva elements. Specifically, as to the first
two elements, the court held that once the Government presented
undisputed evidence that the agents informed Mitchell that they pos-
sessed an arrest warrant for Jeter "a reasonable juror could have found
that the defendant had knowledge that a warrant had been issued for
the fugitive's arrest." With regard to the fourth element, the court
found that a jury could have inferred from Mitchell's lie "about the
presence of a man meeting the description of Jeter after having been
shown a picture of Jeter" that Mitchell "intended to prevent the fugi-
tive's discovery or arrest." Mitchell does not contest these findings.
Only the third element -- whether the Government presented suffi-
cient evidence that Mitchell actually harbored or concealed the fugi-
tive -- is at issue here.

Section 1071 does not proscribe all forms of aid to a fugitive. See
Silva, 745 F.2d at 849. A person does not actually harbor or conceal
in violation of that statute merely by lying to the police about the
whereabouts of a fugitive. See United States v. Lockhart, 956 F.2d
1418, 1423 (7th Cir. 1992); United States v. Magness, 456 F.2d 976
(9th Cir. 1972); United States v. Foy, 416 F.2d 940, 941 (7th Cir.
1969). Moreover, providing general financial assistance will not sat-
isfy § 1071's requirement of actual harboring or concealment. See
Silva, 745 F.2d at 849.

The actual harboring or concealment element requires some "affir-
mative, physical action" by the defendant. United States v. Lockhart,
956 F.2d 1418, 1423 (7th Cir. 1992). Generally, the Government must
prove a "physical act of providing assistance, including food, shelter,
and other assistance to aid the prisoner in avoiding detection and
apprehension." Id. (citing United States v. Kutas, 542 F.2d 527, 528
(9th Cir. 1976)) (internal quotation marks omitted). For example, evi-
dence that a defendant arranged for hotels and vehicles, see Stamps
v. United States, 387 F.2d 993 (8th Cir. 1967), rented apartments and
shopped for a fugitive, see United States v. Giampa, 290 F.2d 83 (2d
Cir. 1961), or provided a fugitive with false identification, see United
States v. Gros, 824 F.2d 1487 (6th Cir. 1987), has been held sufficient
to support a conviction under the statute.

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Similarly, closing the door on law enforcement officers who are
attempting to apprehend a suspect is an "affirmative physical act of
providing assistance" adequate to satisfy the requirement of § 1071.
See United States v. Stacey, 896 F.2d 75 (5th Cir. 1990). In Stacey,
the wife of a fugitive, who was hiding in the house, closed and locked
the front door after she saw the police approaching. At trial, the jury
found this conduct sufficient to meet the requirements of § 1071. Id.
at 77. On appeal, Stacey argued that "the jury convicted her for clos-
ing the door on the officers, and that those actions cannot constitute
harboring and concealing as a matter of law." Id. The Fifth Circuit
upheld the conviction, reasoning that:

          Any physical act of providing assistance . . . to aid the pris-
          oner in avoiding detection and apprehension will make out
          a violation of section 1071. Here, that physical act was clos-
          ing and locking the front door of a house where a fugitive
          was hidden. And that is enough. Given that Stacey knew the
          officers and knew why they were driving by the house, her
          locking them out was enough to sustain a conviction for har-
          boring.

Id. (internal quotation marks, citations, and footnotes omitted).

Mitchell does not assert that the Stacey analysis is faulty. Rather
he claims that the "unrefuted" evidence at trial demonstrated that he
"did not engage in any `active' conduct to harbor or conceal," but
simply caught his foot in the door when the officers attempted to
enter. Mitchell did indeed testify at trial that his foot was behind the
door and that when the officers began pushing the door towards him,
his foot got "caught in the door." He further stated that he began
screaming "My foot is caught. My foot is caught." Agent Sell, how-
ever, testified that when the officers attempted to enter the apartment,
Mitchell "physically resisted [the officers] by trying to push the door
closed." According to Agent Sell, it took about two to three seconds
to overpower Mitchell. Agent Sell recalled Mitchell yelling as the
struggle was taking place, but the agent did not remember if Mitchell
screamed anything in particular.

The district court believed that the testimony from all the witnesses
-- the agents and Mitchell -- clearly demonstrated that the "impetus

                    6
of force" came from the officers storming the apartment, not from
Mitchell shutting them out. What seemed to be resistance on Mitch-
ell's part could be entirely explained by the fact that his foot was
caught in the door. Mitchell's own testimony, however, belies this
theory. Mitchell testified not just that his foot was caught in the door,
but that as the officers tried to enter, he "was closing the door." In
sum, Mitchell's contention that the "unrefuted" evidence demon-
strated that his actions were passive "non-help" to the officers rather
than active assistance to the fugitive is simply not borne out by the
record.

The jury heard Mitchell's version of the events and the Govern-
ment's; it apparently believed the Government's version. The Gov-
ernment presented evidence that Mitchell affirmatively tried to close
the apartment door on the officers when they attempted to enter the
building. Such actions clearly constitute an "affirmative physical
action" intended to keep the officers out of the building and help the
fugitive avoid apprehension, sufficient to meet the third Silva ele-
ment.

IV.

Because, viewing the evidence in the light most favorable to the
Government, sufficient evidence was presented from which a reason-
able jury could have found Mitchell guilty beyond a reasonable doubt
of harboring or concealing, we reverse the district court's judgment
of acquittal and remand for reinstatement of the jury verdict and entry
of judgment against Mitchell.

REVERSED AND REMANDED

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