

   
   
   
   U.S. v. Sanchez



UNITED STATES, Appellee
V.
Jason J. SANCHEZ, Lance Corporal
U.S. Marine Corps, Appellant
 
No. 98-0635
Crim. App. No. 96-1020
 
UNITED STATES COURT OF APPEALS FOR
THE ARMED FORCES
Argued December 17, 1998
Decided July 30, 1999

COX, C.J., delivered the opinion
of the Court, in which SULLIVAN, CRAWFORD, GIERKE, and EFFRON, JJ., joined.


Counsel
For Appellant: Lieutenant Robert
Attanasio, JAGC, USNR (argued); Major Albert Diaz, USMCR (on
brief).
For Appellee: Major M. K. Jamison,
USMC (argued); Colonel K. M. Sandkuhler, USMC, and Commander
D. H. Myers, JAGC, USN (on brief); Lieutenant Russell J. E. Verby,
JAGC, USNR.
Military Judge: H. A. Hopson
 


THIS OPINION
IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 
 

Chief Judge COX delivered the opinion
of the Court.
In accordance with his plea, appellant
was convicted at a general court-martial of one specification of misprision
of a serious offense, in violation of Article 134, Uniform Code of Military
Justice, 10 USC § 934. He was sentenced to a bad-conduct discharge,
24 months confinement, forfeiture of all pay and allowances, and reduction
to the pay grade of E-1. Pursuant to the terms of a pretrial agreement,
all confinement in excess of 12 months was suspended for a period of 12
months.
Appellant asks us to set aside his
conviction for two reasons. First, he asserts that his conviction for misprision
of a serious offense violated his Fifth Amendment right against self-incrimination.
Second, he asserts his plea was improvident because the authorities had
immediate knowledge of the offense, and thus appellant merely concealed
the identity of the assailant, which he claims does not fall within the
defined offense. See 50 MJ 206 (1998).

FACTS
While stationed in Okinawa, appellant
and two of his friends, Lance Corporals Trosper and Davis, went out one
evening to the First Chance Saloon. While at this bar, they met a Seaman
Apprentice Simoneau, a Navy sailor also out on liberty. They observed Simoneau
open his wallet to pay for some T-shirts at a gift shop at the bar and
noticed that he had a large amount of cash.
Trosper remarked that Simoneau "should
be taught a lesson [about] . . . waiving his money around." After appellant
finished a pool game, all three Marines decided to leave to visit another
bar. While on their way to the other bar, they all saw Simoneau again and
began talking with him. All four traveled from bar to bar until they wound
up at what appellant described as a purported "whore house."
Appellant and Trosper went up to the
door of the house to knock while Simoneau and Davis stood in a corner of
the parking lot. Appellant and Trosper received no answer at the door and
decided to take the time to urinate against the wall. While urinating,
appellant heard someone yell, "Take my money, take my money. Its in my
pocket." At that point, appellant ran over to Davis and Simoneau and saw
Davis on top of Simoneau. At that time, appellant thought that Davis was
punching Simoneau. As he ran closer to both men, appellant realized that
Davis was actually stabbing Simoneau with a small blade, about 2-2 ½
inches long -- the type that would be attached to a key chain. Appellant
yelled at Davis not to "stab him," in an attempt to get Davis to throw
the knife down. Davis did not drop the knife, and appellant shook him and
eventually pulled him away from Simoneau. Appellant and his two friends
then fled the scene, leaving Simoneau alone, lying injured.
The three men then attempted to return
to the First Chance Saloon but saw that people had begun to come out in
an apparent attempt to look for the perpetrators. They then decided to
hail a cab to escape the area as quickly as possible, without being detected.
Appellant knew a barracks that they
could all stay at for the night on Kadena Air Force Base, instead of returning
to their base at Schwab, because the Marines thought that someone might
have been looking for them at Schwab. They formulated a plan to ride back
in government transportation with some Marines who had duty in the area
the next day.
That night, all three men agreed that
they would not report the crime and that the knife would have to be "thrown
away." After they returned undetected to their unit, all agreed that appellant
should wear long-sleeved shirts during the rest of his time in Okinawa
because he had easily identifiable tattoos that someone might notice. Appellant,
in fact, did wear long-sleeved flannel shirts during off-duty hours for
as much time as he could tolerate doing so. It was hot in Okinawa during
September and October when appellant was wearing these shirts.
At the end of October 1995, appellant
was permanently returning to the United States from Okinawa and was stopped
by a security policeman. The policeman detained him because he had seen
one of appellants distinctive tattoos -- a spider web on his right elbow.
Appellant was then held for questioning and confessed to his involvement
in the offense, as well as identifying the two other Marines who were with
him the evening that Simoneau was assaulted. Appellants reason for not
originally reporting the crime was because he did not want Davis to be
detained in Okinawa on legal hold because Daviss daughter had just been
born in the United States. Appellant wanted to give him a "second chance."

DISCUSSION
We first consider appellants argument
that his conviction violated his Fifth Amendment right against self-incrimination.
He alleges that requiring him to report the crime would require him to
implicate himself as an accessory after the fact to the aggravated assault.
We reject this argument as lacking
merit under the facts of this case. Appellant could have reported this
offense immediately without incurring criminal liability. His criminal
actions came after his opportunity to report the offense first arose. If
appellant had acted at that time, the authorities would have been able
to solve the crime 1½ months sooner than they did, and the victim
would have received faster medical attention. Although the victim managed
to self-report the crime and seek attention on his own, he would have been
spared the risk of further injury or death if appellant had sought assistance
immediately. Appellant would have incurred no personal, legal risk at that
time.
Moreover, appellant pleaded guilty
to the misprision charge. A guilty plea waives most legal challenges against
a conviction, unless preserved by conditional pleas. See RCM 910,
Manual for Courts-Martial, United States (1995 ed.). Additionally, at least
one federal court has held that a guilty plea waives a defendants defense
that his Fifth Amendment rights have been violated by a prosecution for
misprision. See United States v. Davila, 698 F.2d 715, 719
(5th Cir. 1983). There was no conditional plea in this case.
Thus, appellants argument not only lacks merit under the specific facts
of this case, but he waived any complaint by his guilty plea.
We also reject appellants second argument
that his guilty plea was improvident. Appellant argues that merely not
reporting this offense does not rise to the level of misprision because
his only action was not reporting an offense of which the authorities were
already aware. He urges this Court to hold the only act that constitutes
misprision is concealing the offense. We disagree.
The Manual for Courts-Martial, supra,
explains the "concealment" portion of the offense as follows:



A mere failure or refusal to disclose
the serious offense without some positive act of concealment does not make
one guilty of this offense. Making a false entry in an account book for
the purpose of concealing a theft committed by another is an example of
a positive act of concealment.



Para. 95(c)(3), Part IV.
Appellant took affirmative steps to
conceal the identity of the offender after commission of this offense.
First, appellant discussed disposal of any evidence that might link Davis
to the crime, especially the knife that was used in the attack. Appellant
suggested that the three Marines stay the night of the offense at Kadena
Air Force Base to avoid detection and helped formulate a plan to secure
transportation back to Schwab, where the three were stationed. Appellant
also agreed to wear long-sleeved flannel shirts during hot weather in order
to conceal his identifiable tattoos. During his plea, appellant agreed
that all of these actions were affirmative steps to conceal the assault
and were also prejudicial to good order and discipline in the armed forces.
In all, these actions clearly amount to affirmative assistance supportive
of a misprision conviction.
The gravamen of misprision is concealment.
We are unpersuaded that concealing the identity of the offender is any
different than concealing the detection of the offense. Both acts of affirmative
concealment are equally and criminally culpable. The facts admitted by
appellant are sufficient to support his guilty plea to misprision. There
is nothing in the record inconsistent with his plea, and thus, there is
no "substantial basis" on which to disturb appellants conviction. See
United States v. Prater, 32 MJ 433, 437 (CMA 1991).
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.

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