Art of Success
Text. “Any person subject to this chapter who, knowing that an offense punishable by this chapter has been committed, receives, comforts, or assists the offender in order to hinder or prevent his apprehension, trial, or punishment shall be punished as a court-martial may direct.”
Elements.
(1) That an offense punishable by the code was committed by a certain person;
(2) That the accused knew that this person had committed such offense;
(3) That there after the accused received, comforted, or assisted the offender; and
(4) That the accused did so for the purpose of hindering or preventing the apprehension, trial, or punishment of the offender.
Explanation.
(1) In general. The assistance given a principal by an accessory after the fact is not limited to assistance designed to effect the escape or concealment of the principal, but also includes acts performed to conceal the commission of the offense by the principal (for example, by concealing evidence of the offense).
(2) Failure to report offense. The mere failure to report a known offense will not make one an accessory after the fact. Such failure may violate a general order or regulation, however, and thus constitute an offense under . See paragraph 16. If the offense involved is a serious offense, failure to report it may constitute the offense of misprision of a serious offense, under . See paragraph 95.
(3) Offense punishable by the code. The term “offense punishable by this chapter” in the text of the article means any offense described in the code.
(4) Status of principal. The principal who committed the offense in question need not be subject to the code, but the offense committed must be punish-able by the code.
(5) Conviction or acquittal of principal. The prosecution must prove that a principal committed the offense to which the accused is allegedly an accessory after the fact. However, evidence of the conviction or acquittal of the principal in a separate trial is not admissible to show that the principal did or did not commit the offense. Furthermore, an accused may be convicted as an accessory after the fact despite the acquittal in a separate trial of the principal whom the accused allegedly comforted, received, or assisted.
(6) Accessory after the fact not a lesser included offense. The offense of being an accessory after the fact is not a lesser included offense of the primary offense.
(7) Actual knowledge. Actual knowledge is required but may be proved by circumstantial evidence.
Maximum punishment.
Any person subject to the code who is found guilty as an accessory after the fact to an offense punishable by the code shall be subject to the maximum punishment authorized for the principal offense, except that in no case shall the death penalty nor more than one-half of the maximum confinement authorized for that offense be adjudged, nor shall the period of confinement exceed 10 years in any case, including offenses for which life imprisonment may be adjudged.
