United States v. Courtnee Nicole Brantley

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_________________________
No. 13-12776
_________________________
D.C. Docket No: 8:10-cr-00298-JSM-MAP-1
UNITED STATES OF AMERICA,
Plaintiff -Appellee,
versus
COURTNEE NICOLE BRANTLEY,
Defendant - Appellant.
_____________________
Appeal from the United States District Court
for the Middle District of Florida
_______________________
(October 9, 2015)
Before MARTIN and ROSENBAUM, Circuit Judges, and PROCTOR, * District
Judge.
* Honorable R. David Proctor, United States District Judge for the Northern District of Alabama,
sitting by designation.
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PROCTOR, District Judge:
This appeal involves an infrequently charged crime: misprision of a felony
in violation of 18 U.S.C. § 4. Courtnee Nicole Brantley was convicted of
misprision as a result of her actions during and following a traffic stop on June 29,
2010. Brantley raises several challenges to her conviction. She argues that she
was the subject of selective prosecution, the prosecution violated her Fifth
Amendment privilege against self-incrimination, and there was insufficient
evidence to support the verdict against her. After careful review and with the
benefit of oral argument, we disagree. For the reasons stated below, we affirm
Brantley’s conviction.
I. BACKGROUND
The misprision charge brought against Brantley stems from tragic events
that occurred on June 29, 2010. Brantley was pulled over in a routine traffic stop.
Brantley’s boyfriend, convicted felon Dontae Morris, was a passenger in her car.
Upon questioning by the police, he emerged from the car and shot and killed two
officers. He then fled on foot as Brantley sped away. Within minutes, Brantley
spoke with Morris on a cell phone, and thereafter hid the car and exchanged texts
with Morris. The traffic stop itself -- including the shootings -- was recorded by
the dashboard video camera in a police car. The video was played for the jury.
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At trial, the jury ultimately found that Brantley knew about a federal felony
(her convicted-felon boyfriend’s possession of the firearm which he used to shoot
the officers), did not report that crime to the authorities, and, in the aftermath of the
murders, took affirmative steps to conceal Morris’s felony from the authorities.
II. SUMMARY OF RELEVANT FACTS
At about 2:13 a.m. on June 29, 2010, Tampa Police Officer David Curtis
pulled over Brantley’s car because it did not have a license tag. Brantley provided
her driver’s license and vehicle documentation, and Officer Curtis discussed the
tag violation with her. Officer Curtis also questioned Morris, who gave Curtis his
name and birthdate. Officer Curtis entered Morris’s information into his patrol
car’s computer. An outstanding warrant came up, along with a warning that
Morris had previously resisted arrest.
A backup officer, Jeffrey Kocab, arrived on the scene, and both officers
approached the passenger side of Brantley’s car. Officer Curtis told Morris to step
out of the car. As he exited the car, Morris pulled a gun and shot Officers Curtis
and Kocab in the head. Both officers died from their wounds. Morris ran in one
direction, and Brantley drove off in another. The entire traffic stop -- including the
shootings -- was captured by the dashboard video camera in Officer Curtis’s
vehicle.
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Within a minute of the shootings, Brantley called Morris. Two more phone
calls between them soon followed. Brantley drove to an apartment complex located
about three miles from the murder scene. Therefore, the calls between Brantley
and Morris necessarily occurred prior to the time Brantley parked the car. 1
Brantley parked the car a distance from the apartment in which she hid. When
Brantley parked, she backed the car into a space (and up against some bushes) in
order to conceal the missing license tag.
Following their phone conversations, and within minutes after the shootings,
Brantley and Morris had the following exchange of text messages:
Morris: “Your ride dont need 2 be park by the spot neither.”
Brantley: “No. Still n here, bt way round corner. I nd to move it
sumwhere else tho.”
Morris: “Just lean bak til 2morrow. you phone in your name.”
Brantley: “No.”
Morris: “Bet im bout 2 turn my shiit off til 2morrow i love you.”
Brantley: “I love u with my last breath.”
Morris: “Yea just lean bak stay loyal.”
Brantley: “Of course… Til death do us part.”
Brantley’s texts all included the tagline: “ON MY OWN LEVEL.”
1
Driving at 60 miles per hour, one would drive one mile every minute.
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A few minutes later, Brantley sent text messages to several other people: “U
havent seen me….. U dont know where im at….. Please dont tell anyone anything.
Erase these messages!” When one of those people questioned her, Brantley
explained, “Just make like I never exisisted!”
The police eventually located Brantley in an apartment some 500 yards and
across a lake from where she had parked her car. During questioning, Brantley
admitted that she had been pulled over, someone had been injured, and she had
fled the scene. She further admitted that she had a passenger in the car, but refused
to disclose Morris’s last name.
Morris was arrested after three days, and was prosecuted by the State of
Florida for the two murders. Brantley went to trial on the misprision of a felony
charge.2 After the Government put on its case, Brantley rested without presenting
any evidence. The case then went to the jury.
The jury was instructed that, in order for Brantley to be found guilty of
misprision, it must find “that a federal felony as charged in Count I of the
Indictment was committed[,] that the defendant had actual knowledge of the
commission of the felony[,] that the defendant did not as soon as possible make
known the felony to some judge or other person in civil or military authority[, and]
2
This was Brantley’s second trial. In the first trial, the jury was unable to reach a unanimous
verdict.
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that the defendant did an affirmative act to conceal the crime.” The court further
instructed that, in the event the jury found Brantley guilty, it should disclose the
acts of concealment that it found she had committed. (“there’s blanks for you to
write in whatever act or acts you find”). Consistent with the trial court’s
instruction, the verdict form directed the jury (in the event it found Brantley guilty)
to “describe the act or acts you find Brantley committed to conceal the crime of
felon in possession of [a] firearm and ammunition.”
The jury returned a verdict of guilty against Brantley on the misprision
charge. In response to the special jury interrogatory, the jury explained that it
found evidence of the following acts: “The defendant knowingly and willfully
concealed her knowledge of the possession of a firearm and ammunition by a
convicted felon from the authorities by coordinating via phone calls and text
messages with Dantae [sic] Morris.” After return of the verdict, the district court
gave the jury the opportunity to be more specific as to the “acts of concealment” it
found. The jury declined to supplement or alter its verdict.
III. STANDARD OF REVIEW
“[I]n reviewing the denial of a motion to dismiss for selective prosecution,
we review the district court’s factual findings for clear error and its legal
conclusions de novo.” United States v. Jordan, 635 F.3d 1181, 1185 (11th Cir.
2011) (citing United States v. Smith, 231 F.3d 800, 806 (11th Cir. 2000)).
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We also review the district court’s application of the Fifth Amendment
privilege de novo. United States v. Hernandez, 141 F.3d 1042, 1049 (11th Cir.
1998).
We review de novo a verdict challenged for sufficiency of the evidence,
“resolving all reasonable inferences in favor of the verdict.” United States v.
Farley, 607 F.3d 1294, 1333 (11th Cir. 2010). If there is a reasonable basis in the
record for the verdict, we must sustain it. Id.
IV. DISCUSSION
Brantley presents the following arguments on appeal: (1) the district court
should have dismissed the charge against her because she was selectively
prosecuted; (2) the prosecution violated her Fifth Amendment privilege against
self-incrimination; and (3) the district court should have ordered a judgment of
acquittal or a new trial because there was insufficient evidence to support the jury’s
verdict. We address each of these arguments below, but find they lack merit.
A. Brantley Did Not Establish that Her Prosecution was Improperly
Selective
It is axiomatic that with limited law enforcement resources, the Government
is unable to prosecute every crime that is committed. Decisions regarding which
crimes will be prosecuted are entrusted by the United States Constitution to the
Executive Branch, which is charged with seeing that our nation’s laws are
enforced. See U.S. Const., Art. II, § 3 (“he shall take Care that the Laws be
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faithfully executed”). “The judiciary cannot interfere with a prosecutor’s exercise
of charging discretion, except in narrow circumstances where it is necessary to do
so in order to discharge the judicial function of interpreting and applying the
Constitution.” Smith, 231 F.3d at 807. “[U]nder the Due Process Clause of the
Fifth Amendment, ‘the decision whether to prosecute may not be based on an
unjustifiable standard such as race, religion, or other arbitrary classification.’”
Jordan, 635 F.3d at 1188 (quoting Smith, 231 F.3d at 807). However, a
presumption exists that a prosecutor has not violated equal protection principles,
and a defendant challenging her conviction on this ground must satisfy a
“demanding” burden to establish that she is being selectively prosecuted. Id.;
Smith, 231 F.3d at 807. In order to overcome that presumption, a defendant must
present clear evidence of a selective prosecution. Smith, 231 F.3d at 807.
A defendant asserting that she was selectively prosecuted must show “that
the federal prosecutorial policy had a discriminatory effect and that it was
motivated by a discriminatory purpose.” Jordan, 635 F.3d at 1188 (quoting Smith,
231 F.3d at 808). In other words, a criminal defendant who claims she was
subjected to selective prosecution must establish two elements: (1) the
discriminatory effect prong of this test requires a showing that “similarly situated
individuals were not prosecuted” (id. (quoting Smith, 231 F.3d at 809)), and (2)
“[t]he discriminatory purpose prong requires that the decisionmaker selected or
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reaffirmed a particular course of action at least in part because of, not merely in
spite of, its adverse effects upon an identifiable group” (id. (quoting Wayte v.
United States, 470 U.S. 598, 610 (1985) (internal quotation marks omitted))).
“Further, in order to obtain an evidentiary hearing on a selective prosecution claim,
‘the defendant must present facts sufficient to create a reasonable doubt about the
constitutionality of a prosecution.’” Id. (quoting United States v. Silien, 825 F.2d
320, 322 (11th Cir. 1987)).
Here, the District Court concluded that it was “unnecessary to discuss
whether [Brantley]…met the first prong since she has clearly failed to meet the
second.” We agree that Brantley failed to establish the second element but we also
conclude, based upon the record evidence before us, that she did not satisfy the
first element either.
1. Brantley Has Not Shown That She is Similarly Situated to
Her Purported Comparator.
Based upon our rule pronounced in Jordan, it was incumbent upon Brantley
to show by clear evidence that a similarly situated individual was not prosecuted
for misprision. As we have explained, “a ‘similarly situated’ person for selective
prosecution purposes [is] one who engaged in the same type of conduct, which
means that the comparator committed the same basic crime in substantially the
same manner as the defendant—so that any prosecution of that individual would
have the same deterrence value and would be related in the same way to the
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Government’s enforcement priorities and enforcement plan—and against whom
the evidence was as strong or stronger than that against the defendant.” Smith, 231
F.3d at 810. In a different context -- when a Title VII plaintiff complains she was
treated differently than a similarly situated co-worker -- we have required the
plaintiff and the employee she identifies as a comparator to be similarly situated
“in all relevant respects.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091
(11th Cir. 2004) (citing Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997).
As we have explained, the comparator must be nearly identical to the plaintiff to
prevent courts from second-guessing a reasonable decision by the employer.
Wilson, 376 F.3d at 1091; see Silvera v. Orange County Sch. Bd., 244 F.3d 1253,
1259 (11th Cir. 2001). The same considerations apply in a challenge based upon
selective prosecution because, in all but an exceedingly narrow number of cases, a
court is not free to second-guess the prosecutor’s exercise of charging discretion.
Thus, applying the Smith rationale to the record evidence, we conclude Brantley’s
contention that she is similarly situated to McMillan is off the mark.
In pressing her selective prosecution claim, Brantley has identified a single
comparator – Quinisha McMillan. Brantley alleged the following facts related to
McMillan: (1) McMillan never properly reported to law enforcement information
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about the murder of a civilian; 3 (2) the same homicide detective who interviewed
Brantley in relation to Morris’s shooting of Officers Curtis and Kocab also spoke
(some two weeks later) with McMillan about Morris allegedly murdering a
civilian; (3) McMillan acknowledged hosting Morris in her home after the civilian
was shot; (4) McMillan saw Morris in possession of a firearm; and (5) Morris and
others indicated to McMillan that it was Morris who killed the civilian.
But there were also significant differences between Brantley and McMillan
in relation to their knowledge of the two cases and their respective silence about
Morris’s conduct. Indeed, three examples of these differences are readily apparent
in the record before us. First, McMillan was not actually present at the time that
Morris used the firearm he unlawfully possessed to commit a second felony—
namely, murder; conversely, Brantley was at the scene with Morris when he
murdered the two officers. Second, McMillan was warned by Morris about the
consequences of snitching and that warning was punctuated by threats and a
physical beating (at the hands of Morris and two of his acquaintances); however,
Brantley, without threat or intimidation, pledged to stay loyal to Morris “[t]il death
do us part.” Finally, Morris’s possession of a firearm in McMillan’s presence,
which McMillan failed to report, occurred at a time which was separate from and
3
McMillan did not report Morris’s possession of a firearm (and purported involvement in the
murder of a civilian) until long after the crime occurred. It was not until substantially later that
McMillan gave sworn testimony to that effect in a separate case in which Morris was prosecuted
for murder of a civilian.
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clearly after Morris allegedly used that firearm to commit the second crime of
murder; on the other hand, Brantley was aware, but failed to report, that Morris
was in possession of a firearm at the very time that he shot and killed two police
officers. These important differences between Brantley and McMillan provide
sufficient reason, in and of themselves, for us to determine that the two are not
truly comparators and the prosecution had legitimate reasons for viewing them
differently. But, here, there is even more.
As the jury determined beyond a reasonable doubt, Brantley not only failed
to disclose Morris’s crime, but also took affirmative steps to conceal it. In fact, the
jury found that Brantley knowingly and willfully concealed her knowledge of
Morris’s crime “by coordinating via phone calls and text message with [him].”
The evidence adduced at trial amply supports the jury’s finding. On the other
hand, and as the district court found, Brantley has not alleged that McMillan
committed any act of concealment. We also note that Morris’s possession of a
firearm in this case led to the killing of two police officers. 4
Of course, all murders are tragic and senseless. But the government’s choice
to prosecute crimes associated with the killing of police officers differently than
4
In the district court, Brantley complained that McMillan was not prosecuted for misprision
because the civilian who Morris allegedly murdered “was not a police officer, and the [civilian’s]
tragic death did not rise to the level of public outrage and associated pressures surrounding the
deaths of two police officers ….” Similarly, Brantley contended that McMillan was not
prosecuted because Morris’s purported murder of the civilian did not “reach beyond ordinary
citizens and into the ranks of law enforcement.”
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those associated with the killing of civilians is a permissible exercise of
prosecutorial discretion. As we explain below, that decision is not based on any
protected classification. Moreover, prosecution of crimes against police officers
serves unique deterrent interests.
Here, there is a substantial question whether McMillan violated the
misprision statute. But even if she did, Brantley has failed to establish that she and
McMillan are similarly situated. She is simply not properly viewed as Brantley’s
comparator.
2. Brantley Has Not Shown That the Decision to Prosecute
Her Was Based Upon Any Constitutionally Impermissible
Standard.
Apart from failing to show that she was similarly situated to McMillan,
Brantley’s selective prosecution claim fails for another reason. She has failed to
establish that the decision to prosecute her, but not McMillan, was based on an
unjustifiable standard such as race, religion, or other arbitrary classification.”
United States v. Armstrong, 517 U.S. 456, 464, 116 S. Ct. 1480, 1486 (1996).
Brantley asserts that the impermissible “arbitrary classification” was her
exercise of her Fifth Amendment right against self-incrimination. But that
assertion cuts no ice at all. Brantley admitted to the police that she had been pulled
over, that someone had been injured, and that she had fled the scene by herself.
Thus, Brantley, on her own, volunteered information which was sufficient to self-
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incriminate for the crime of leaving the scene of a lawful traffic stop. It follows
that her refusal to identify Morris was, at that point, irrelevant to any Fifth
Amendment privilege she asserted after the fact.
Nor is there any merit to Brantley’s argument that she was unconstitutionally
prosecuted because the victims of the crime Morris committed (while with her)
were law enforcement. As we have already observed, the murders Brantley and
McMillan had knowledge of involve different deterrence interests. It does not
offend the Constitution when a prosecutor considers the potential deterrent effect
of a case’s prosecution. See Armstrong, 517 U.S. at 465, 116 S. Ct. at 1486 (“Such
factors as the strength of the case, the prosecution’s general deterrence value, the
Government’s enforcement priorities, and the case’s relationship to the
Government’s overall enforcement plan are not readily susceptible to the kind of
analysis the courts are competent to undertake.”); see also United States v. Rice,
659 F.2d 524, 527 (5th Cir. Unit A Oct. 1981) (concluding, in a criminal tax case,
that “selection for prosecution based in part upon the potential deterrent effect on
others serves a legitimate interest in promoting more general compliance with the
tax laws. Since the government lacks the means to investigate every suspected
violation of the tax laws, it makes good sense to prosecute those who will receive,
or are likely to receive, the attention of the media.”) (quoting United States v.
Catlett, 584 F.2d 864, 868 (8th Cir. 1978)). And there is nothing in our
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Constitution that prohibits a prosecutor from taking into account the circumstances
of a crime in making a charging decision. In particular, to the extent Brantley was
prosecuted because the United States aimed to deter witnesses to police shootings
from concealing those crimes, that decision was neither arbitrary nor
unconstitutional. The executive branch enjoys the discretion to treat violence
against a law enforcement official (when committed while the officer is in the line
of duty) differently than violence against civilians. And, in fact, the respective
executive branches of our federal and state governments have elected to do just
that. See, e.g., Fla. Stat. § 921.141(5)(j) (listing, among the aggravating factors for
death-penalty consideration, “The victim of the capital felony was a law
enforcement officer engaged in the performance of his or her official duties.”); see
also Collier v. Turpin, 177 F.3d 1184, 1203 (11th Cir. 1999) (recognizing, as an
aggravating circumstance of murder conviction, the fact that murder victim was
police officer); cf. USSG § 3A1.2(c)(1) (six-level enhancement if defendant
assaulted law enforcement officer).
Brantley’s prosecution publicized the fact that those who conceal evidence
about the capital murder of a police officer will be prosecuted and that fact,
without question, could have a deterrent effect on others. The district court did not
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commit error when it denied Brantley’s motion to dismiss based on her claim of
selective prosecution.5
B. Brantley’s Prosecution Did Not Violate Her Fifth Amendment
Privilege Against Self-Incrimination
The Fifth Amendment provides that “[n]o person ... shall be compelled in
any criminal case to be a witness against himself.” U.S. Const., Amend. V.
However, a suspect is on different footing once she knowingly and voluntarily
waives her right to remain silent by answering some of law enforcement’s
questions. If she thereafter wishes to invoke her right to remain silent, she “must
articulate [her] desire to cut off questioning with sufficient clarity that a reasonable
police officer in the circumstances would understand the statement to be an
assertion of the right to remain silent.” Coleman v. Singletary, 30 F.3d 1420, 1424
(11th Cir. 1994), cert. denied, 514 U.S. 1086 (1995).
Brantley argues that, because reporting Morris’s crime (of possessing a
firearm used to murder two police officers) would have revealed a crime she had
committed (leaving the scene of a traffic stop), her prosecution for misprision
violates her Fifth Amendment rights. We disagree.
Brantley’s argument is fatally flawed in at least this respect: in the district
court, she was not prosecuted for her silence. Rather, she was prosecuted because
5
We also conclude that, because Brantley did not present a colorable claim of selective
prosecution, the district court did not abuse its discretion in refusing to hold an evidentiary
hearing on that issue.
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she knowingly participated in affirmative acts of concealment of Morris’s crime—
i.e., (1) hiding herself and the car and (2) calling and texting Morris in an effort to
conceal his crime. Given the facts of this case, we need not decide whether the
Fifth Amendment would protect Brantley from prosecution if all she did was
remain silent. Here, Brantley did not merely remain silent. As the jury
determined, she also concealed evidence. And the Fifth Amendment does not
shield a defendant from prosecution for her affirmative acts of concealment. See
Brogan v. United States, 522 U.S. 398, 404 (1998) (“Proper invocation of the Fifth
Amendment privilege against compulsory self-incrimination allows a witness to
remain silent, but not to swear falsely.”). Just as an individual cannot use the Fifth
Amendment to shield a false statement to a law enforcement officer (and thus, in
that context, defend herself from prosecution for misprision of a felony), neither
may Brantley use the Fifth Amendment to shield her affirmative acts of concealing
evidence of Morris’s crime.
Finally, it is important to note that Brantley freely admitted to the police that
she had been pulled over, someone had been “injured,” and that she had fled the
scene by herself. She further admitted that she had a passenger in the car, but
refused to disclose Morris’s last name. Thus, Brantley herself freely admitted a
violation of Florida law by stating that she had fled the scene of a traffic stop. She
did not invoke her right to remain silent before providing the police with any of
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these details. Thus, her subsequent prosecution for misprision, which required the
government to show affirmative acts of concealment (not merely her silence) did
not violate her Fifth Amendment right to remain silent. This is not a close
question. The district court did not err in failing to sua sponte grant Brantley a
judgment of acquittal on the basis of her right against self-incrimination.
C. There Was Sufficient Evidence to Support the Jury’s Verdict
Brantley next argues that the evidence was insufficient to convict her of
misprision. We reject her contention. The misprision statute provides that
“[w]hoever, having knowledge of the actual commission of a felony cognizable by
a court of the United States, conceals and does not as soon as possible make known
the same to some judge or other person in civil or military authority under the
United States,” is guilty of misprision. 18 U.S.C. § 4. The statute, though, has been
construed to require also “some affirmative act of concealment or participation.”
Itani v. Ashcroft, 298 F.3d 1213, 1216 (11th Cir. 2002).
At Brantley’s trial, the district court correctly explained that the crime of
misprision is comprised of four elements.6 The district court’s instruction
6
In our earlier decision, which reversed the district court’s earlier dismissal of the charge against
Brantley, we referenced the essential elements of misprision as follows: “knowledge of a crime
and some affirmative act of concealment or participation.” United States v. Brantley, 461 F.
App’x 849, 851 (11th Cir. 2012). But, at that time, we were simply reviewing the district court’s
finding that dismissal of the indictment was warranted because there was no evidence of an
affirmative act of concealment by Brantley. Therefore, only the affirmative act of concealment
element of the crime was at issue before the Court at that time. Id. at 851–52.
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regarding the elements of the crime of misprision is consistent with the definition
articulated by the Third Circuit. See Baer v. United States, 722 F.3d 168, 176 (3rd
Cir. 2013). We hereby adopt the Third Circuit’s definition and conclude that the
elements of the crime of misprision are: “(1) the principal committed and
completed the felony alleged; (2) the defendant had full knowledge of that fact; (3)
the defendant failed to notify authorities; and (4) the defendant took steps to
conceal the crime.” Id. (quoting United States v. Gebbie, 294 F.3d 540, 544 (3d
Cir. 2002) (internal quotations omitted)). We also conclude that the district court
properly instructed the jury that, in order to find Brantley guilty of the crime of
misprision, the Government was required to prove each of those four elements
beyond a reasonable doubt.
The next question is whether there was sufficient evidence adduced at trial
to support the jury’s verdict. We will uphold a conviction as supported by
sufficient evidence “if a reasonable trier of fact could find that the evidence
established guilt beyond a reasonable doubt.” United States v. Jiminez, 564 F.3d
1280, 1284–85 (11th Cir. 2009) (internal quotation marks omitted). We resolve
“all reasonable inferences and credibility evaluations in favor of the jury’s verdict”
and leave a defendant’s convictions undisturbed “‘unless no trier of fact could have
We cited Itani in discussing the element of the crime requiring an affirmative act of concealment.
However, the question before us in Itani was not the proper delineation of the elements of
misprision of a felony, but rather whether misprision constitutes a crime of moral turpitude. 298
F.3d at 1216. In Itani, we were not called upon to address what elements must be established to
prove the crime of misprision.
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found guilt beyond a reasonable doubt.’” United States v. Tinoco, 304 F.3d 1088,
1122 (11th Cir. 2002) (quoting United States v. Calderon, 127 F.3d 1314, 1324
(11th Cir. 1997)).
The only element of the crime that Brantley has challenged on sufficiency
grounds is the fourth one, requiring an affirmative act of concealment. At trial, the
jury heard evidence that Brantley fled the scene after Morris shot and killed the
police officers. The jurors also heard evidence indicating that in the minutes
following the murder of the officers, Brantley and Morris spoke during three phone
calls. The jury further heard evidence that, at around the same time, Brantley and
Morris exchanged text messages about concealing the car and staying loyal. After
her conversations with Morris, Brantley actually concealed the car and hid herself
in a distant apartment away from the vehicle. A reasonable jury could conclude
that the subject of the telephone calls was similar to the subject of the text
messages — i.e., they involved discussions about how and where to hide evidence
(the car). The car linked Brantley to Morris and also linked Morris to the
possession of the weapon involved in the murder of the two police officers, which
was committed in Brantley’s presence. And, Morris, who Brantley knew to be a
felon, committed the murders while being in possession of a firearm.
In response to a question on the verdict form asking it to identify Brantley’s
affirmative act or acts of concealment, the jury stated that “[t]he defendant
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knowingly and willfully concealed her knowledge of the possession of a firearm
and ammunition by a convicted felon from the authorities by coordinating via
phone calls and text messages with Dantae [sic] Morris.” (Emphasis added). A
reasonable jury could conclude based upon the evidence presented at trial that the
coordination between Brantley and Morris, both phone calls and text messages,
was hiding the car.
Nor is it significant that the jury declined the district court’s request to
further explain its answer to the special interrogatory. In United States v. Bran,
776 F.3d 276 (4th Cir. 2015), Bran argued that the district court erred in denying
his motion for judgment of acquittal. At trial, the district court instructed the jury
to return a general verdict on a felon in possession count and, if the jury
determined Bran was guilty, to then answer a three-part special interrogatory.
Bran, 776 F.3d at 278–79. Somewhat similar to what occurred below, the jury in
Bran returned a general verdict of guilty, but failed to answer one of the three parts
of a special interrogatory. Id. Bran moved for a judgment of acquittal based on
the jury’s failure to answer the one part of the special interrogatory. Id. at 279.
The Fourth Circuit held that Bran’s focus on the jury’s failure to answer part of the
special interrogatory ignored the jury’s general verdict. Id. at 280. As the Bran
court noted, “the jury’s general guilty verdict alone is sufficient to uphold [his]
conviction.” Id. Here, as in Bran, the jury’s general guilty verdict necessarily
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includes a finding that Brantley engaged in an affirmative act (or acts) of
concealment. There is more than sufficient evidence in the record to support that
verdict.
Finally, there was sufficient evidence of affirmative acts of concealment to
support the jury’s guilty verdict. “[R]eceipt or possession of evidence has
regularly been considered a sufficient affirmative act to support conviction under
the misprision statute.” United States v. Davila, 698 F.2d 715, 718 (5th Cir. 1983);
see also United States v. King, 402 F.2d 694 (9th Cir. 1968). So has the removal
of evidence. United States v. Stuard, 566 F.2d 1 (6th Cir. 1977). Again, this case
does not involve a mere failure to report a crime. Rather, there is sufficient
evidence of affirmative concealment of evidence -- i.e., the removal and hiding of
evidence related to a crime (the car) -- to support the jury’s finding of an
affirmative act of concealment. After review of this record, we cannot say that no
trier of fact could have found Brantley guilty beyond a reasonable doubt.
Therefore, the district court did not err in denying her a judgment of acquittal and
declining to order a new trial. See Tinoco, 304 F.3d at 1122; Calderon, 127 F.3d at
1324.
V. CONCLUSION
For the foregoing reasons, Brantley’s misprision conviction is
AFFIRMED.
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MARTIN, Circuit Judge, concurring:
The shocking events out of which this appeal arises were senseless and
tragic. Dontae Morris’s June 29, 2010 murder of two police officers can only be
characterized as a grave and unspeakable crime. But Courtnee Brantley, whose
appeal we consider here, was never charged with those murders. That means our
job is to evaluate her claims as they relate to the crime for which the jury convicted
her—misprision of a felony in violation of 18 U.S.C. § 4. Specifically, we must
determine “if a reasonable trier of fact could find that the evidence established guilt
beyond a reasonable doubt.” United States v. Jiminez, 564 F.3d 1280, 1285 (11th
Cir. 2009) (quotation omitted). Even viewing all of the evidence in the light most
favorable to the government and drawing all reasonable factual inferences in favor
of the jury’s verdict, id. at 1284, I agree with what I gather to be the District
Judge’s sense that Ms. Brantley’s is a close case. Ultimately, I reach the same
conclusion as the majority—that there is sufficient evidence to support Ms.
Brantley’s conviction. I write separately, however, because I do not share the
majority’s view of the strength of the case against her.
As the majority notes, misprision of a felony is a rarely charged crime. In
order to prove a violation of 18 U.S.C. § 4, the government must offer sufficient
evidence to demonstrate: “(1) the principal committed and completed the felony
alleged [here, the felony is Mr. Morris being a felon in possession of a firearm];
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(2) the defendant had full knowledge of that fact; (3) the defendant failed to notify
authorities; and (4) the defendant took steps to conceal the crime.” Baer v. United
States, 722 F.3d 168, 176 (3d Cir. 2013) (quotation omitted). On appeal, Ms.
Brantley challenges only the fourth element, arguing that the government has not
offered sufficient evidence to prove that she concealed Mr. Morris’s crime of being
a felon in possession. This appeal concerns Ms. Brantley’s second trial, because
her first jury could not unanimously agree to convict her.
As I’ve said, in order to convict Ms. Brantley of the crime of misprision of a
felony, the government was required to prove that she took an affirmative step to
conceal Mr. Morris’s crime of possessing a firearm as a convicted felon. See
United States v. Johnson, 546 F.2d 1225, 1227 (5th Cir. 1977). Our precedent is
clear that “[t]he mere failure to report a felony is not sufficient” to establish
concealment. Id. At the same time, I am not aware of any binding precedent from
our court holding that intent to conceal the commission of a felony from the
government (without the carrying out of the corresponding act) is sufficient to
prove this element. Cf. Neal v. U.S., 102 F.2d 643, 650 (8th Cir. 1939) (“An intent
to conceal from the government, if such intent existed, that is not carried out is not
an offense under the statute.”). One of our sister Circuits has recognized that even
knowing where a perpetrator is hiding and having conversations with him about
how to escape is not sufficient, absent some positive act of concealment. Id.
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In most misprision cases, a defendant’s affirmative act of concealment is
readily apparent. This is true of the out-of-circuit cases the majority relies upon in
support of Ms. Brantley’s conviction. In United States v. Davila, 698 F.2d 715
(5th Cir. 1983),1 the concealment element of misprision of a felony was met
because Mr. Davila agreed to hold approximately $15,000 in payoff money in the
service of the underlying conspiracy to suborn perjury. Id. at 718. In United
States v. Stuard, 566 F.2d 1 (6th Cir. 1977) (per curiam), the defendant’s actions of
removing stolen whiskey from a truck, replacing it with sandbags, and driving the
truck to another state were deemed sufficient affirmative acts to conceal the
underlying theft. Id. at 1.2 As the majority recognizes, receipt of or hiding
evidence of a felony is typically sufficient to establish an affirmative act of
concealment.
This case is not as clear. The majority holds that Ms. Brantley’s affirmative
act of concealment was hiding her car after she left the scene of the crime.
1
Only Fifth Circuit decisions issued before October 1, 1981, are binding on this Court. Bonner
v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
2
The majority also relies upon United States v. King, 402 F.2d 694 (9th Cir. 1968). In that case,
however, the Ninth Circuit held that the government had not offered sufficient evidence to prove
the defendant’s intent to conceal the underlying crime of bank robbery. Id. at 697. Even though
the defendant received some of the proceeds from the robbery, the government had offered “no
testimony indicating that a purpose of defendant in receiving the money was to hide it for the
principals, or to otherwise conceal information about the crime.” Id. at 696. This case does not
support Ms. Brantley’s conviction. Rather, it highlights the government’s burden to offer
evidence proving a defendant’s intent to conceal the underlying felony.
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Specifically, the majority concludes that by hiding the car she was driving, Ms.
Brantley concealed evidence that Mr. Morris committed the crime of being a felon
in possession of a firearm. The District Court expressed dissatisfaction with this
interpretation of the evidence in its well-reasoned Order denying Ms. Brantley’s
motion for a judgment of acquittal. Although the question of whether Ms. Brantley
concealed evidence of a crime may seem simple, a closer look is necessary.
First, it is not readily apparent to me how Ms. Brantley’s automobile is
evidence of Mr. Morris’s crime of being a felon in possession of a firearm. Mr.
Morris’s gun was not in her car when she drove away. Neither did she flee with
his ammunition. Nevertheless, the government asserts that the car was “evidence”
of the underlying felony because police officers could have gleaned from her car a
“scent sample” to aid their bloodhound in tracking Mr. Morris after his escape. I
agree with the District Court that this argument strains credulity. The record
before us contains no evidence that the police made any attempt to capture a scent
sample even after recovering Ms. Brantley’s car, despite that Mr. Morris was still
missing and it would still have been possible to do so. Despite this, the majority
accepts without discussion that the car was an evidentiary link between Mr. Morris
and his underlying crime of being a felon in possession of a firearm.
Second, this record reveals no evidence that Ms. Brantley had the required
intent to conceal Mr. Morris’s felony at the time she drove away from the scene of
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the crime. Indeed, the government recognizes that Ms. Brantley “recoiled” after
Mr. Morris shot the officers, and then “fled” the crime scene. Ms. Brantley’s
reaction, then, was one of shock, rather than conscious reflection. There was no
evidence offered at trial to prove that Ms. Brantley drove away from the scene of
the crime with the intent to keep her car from the police officers’ bloodhounds.
Third, Ms. Brantley took no affirmative steps to conceal the car after
communicating with Mr. Morris. It is important to carefully consider the sequence
of events. First, immediately after the crime, there were three calls between Ms.
Brantley and Mr. Morris, the content of which we don’t know. Next, Mr. Morris
texted Ms. Brantley saying, “Your ride dont need 2 be park by the spot neither,” to
which she responded, “No. Still n here bt way round corner. I nd to move it
sumwhere else tho.” She then pledged her loyalty to him.
But there is no evidence that Ms. Brantley then moved the car after sending
these texts. Neither is there evidence that she tried to clean the car. Instead she
stayed where she was (at her friend’s apartment complex) until the police found
her there. It bears repeating that our Circuit has no rule allowing intent to conceal
the commission of a felony, by itself, to support a conviction for misprision. See
Neal, 102 F.2d at 650. The texts, which were not followed up with actions, do not
prove that Ms. Brantley concealed evidence of Mr. Morris’s crime. And her
declarations of loyalty do not alter this conclusion.
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Finally, the only “affirmative act” we have to support the jury’s verdict is
Ms. Brantley’s initial decision to park her car at a friend’s apartment complex,
backing into the spot in a way that her missing license tag was hidden. Certainly,
Ms. Brantley’s conduct in this regard could plausibly be interpreted as her intent to
avoid the authorities. However, this cannot be the affirmative act that supports her
conviction. Again, the “mere failure to report a felony is not sufficient to
constitute a violation of 18 U.S.C.A. § 4.” Johnson, 546 F.2d at 1227. In fact, if
Ms. Brantley had remained at the scene of the crime but refused to answer
questions, she would not be guilty of misprision. It follows, therefore, that
rendering herself unavailable for questioning cannot be the required affirmative act
of concealment.
That said, Ms. Brantley faces a very tough standard in seeking to overturn
the jury’s verdict. On appeal, we are required to construe all inferences in favor of
the jury’s verdict. Having done so, I conclude that a reasonable factfinder could
find that by parking her car the way she did, Ms. Brantley intended to conceal Mr.
Morris’s murder of the two police officers. That murder, in turn, involved a
firearm. A reasonable jury could find that Ms. Brantley surmised that the police
were looking for a vehicle without tags, and with that in mind, thought that
concealing her vehicle would help Mr. Morris evade detection for having
possessed the firearm he used to murder the officers. Mr. Morris told her that the
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car “dont need 2 be park by the spot neither.” And she assured him that it
wasn’t—it was “way round corner.” Although no affirmative acts of concealment
transpired after this text exchange, a reasonable factfinder could infer from her
response that her earlier act of parking at her friend’s apartment complex was done
with the required intent to conceal. On this narrow basis, I concur in the majority’s
judgment that there is sufficient evidence to support Ms. Brantley’s conviction.
The majority holds that the evidence adduced at trial amply supports the
jury’s finding. The majority so holds despite the fact that this defendant did not
conceal any fruit or instrumentality of the crime. In that way, I believe this case
stands in stark contrast to the typical charge of misprision of a felony.
Nevertheless, the standard for a sufficiency-of-the-evidence claim places a heavy
burden on a defendant: to prove that no rational factfinder could have found that
the evidence established guilt beyond a reasonable doubt. Since I agree with the
conclusion ultimately reached by the District Judge, that there is a reading of the
evidence that supports the jury’s verdict, I concur in the Judgment of the majority.
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