Appellant liable as both principal and accessory after the fact

US v. White - In this case, Appellant White received three 78-month concurrent terms of imprisonment for his part(s) in the intentional burning of a two-unit apartment building he owned.  He received convictions for conspiracy to commit arson and mail fraud, aiding and abetting arson, and accessory after the fact to arson.  White made two sufficiency of the evidence challenges: 1) that the government failed to establish the interstate commerce nexus required to sustain the arson convictions of counts 1 and 2; and 2) that the evidence did not establish that he assisted an uncharged co-conspirator in evading apprehension and punishment for the accessory-after-the-fact conviction.  White further challenged his sentence, that the court should not have considered the two-unit apartment house a “dwelling”, which increased his base offense level.    The Fourth Circuit affirmed, 2-1, with a dissent from Justice Wynn, finding that, as a matter of law, a person should not be held criminal liable as both a principal and an accessory after the fact to him or herself, and the defendant’s conviction for being an accessory after the fact constitutes clear legal error.

In upholding the conviction for accessory after the fact, the Fourth Circuit discussed the government’s case, that it presented evidence of White’s false and misleading statement to an insurance representative to help an unnamed co-conspirator to avoid apprehension, which satisfying the elements of the crime.  It based its decision on a 1999 case from the 5th Circuit, which, according to Justice Wynn, “failed to acknowledge, let alone analyze, the conundrum of allowing a principal to be convicted of acting as an accessory after the fact to himself.”

(Decided November 17, 2014).