Eleventh Circuit Determines Petitioner’s Actions Constitute an “Affirmative Act of Concealment” in Misprision of a Felony Case

In United States v. Brantley, No. 13–12776, 2015 WL 5915894, (11th Cir. Oct. 9, 2015), the Eleventh Circuit further defined what constitutes an “affirmative act of concealment” in regard to the crime of misprision of a felony.

On June 29, 2010, a Tampa police officer pulled over Courtnee Brantley’s car for a traffic violation. Brantley’s boyfriend, Dontae Morris, was in the passenger seat of the car when the stop occurred. The officer obtained the name and birthdate of Morris and entered the information into his patrol car’s computer. The officer then discovered that a warrant was out for Morris’s arrest and that Morris had previously resisted arrest. A backup officer arrived at the scene and both officers approached Brantley’s car and ordered Morris out of the car. As Morris was getting out of the car, he pulled a gun and fatally shot both officers in the head. Morris fled on foot, and Brantley fled the scene in her car.

Within a few minutes of the shootings, Brantley and Morris talked on the phone three times. Brantley drove to a nearby apartment complex and parked her car a distance away from the apartment in which she hid. In order to hide her missing license tag, Brantley backed her car into a space with bushes behind it. After parking the car, Brantley sent a text message to Morris to explain that she parked her car away from the apartment in which she was hiding. The police eventually located Brantley and after questioning, Brantley admitted that she had been pulled over, someone had been injured, she had fled the scene, and she had a passenger with her. Brantley refused to say the passenger’s name. Morris was found three days later.

Brantley was charged with misprision of a felony and convicted by a jury. Brantley raised three challenges to her conviction on appeal: (1) she was the subject of selective prosecution, (2) the prosecution violated her Fifth Amendment privilege against self-incrimination, and (3) there was insufficient evidence to support the verdict against her. All three of Brantley’s claims were rejected, but the third claim prompted a separate concurrence by Judge Martin.

The court explained that the crime of misprision has four elements: (1) a person committed the alleged felony, (2) the defendant fully knew that the felony was committed, (3) the defendant failed to notify the authorities, and (4) the defendant took affirmative steps to conceal the crime. The only element at issue was whether Brantley took an affirmative step to conceal the crime that Morris was a felon in the possession of a firearm. The jury stated that the acts of concealment were that Brantley “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 texts messages with … Morris.” Id. at *6. The court ruled that a reasonable jury could conclude that the communication between Brantley and Morris in discussing how to hide the car, and hiding the car, was an affirmative act of concealing evidence. Judge Martin’s concurrence explains that the case was close because it is not very apparent that the car was evidence of Morris being a felon in the possession of a firearm, there was no evidence to suggest that Brantley had intent to conceal the felony, Brantley did not take affirmative steps to conceal the car after texting Morris, and it is questionable whether the act of backing a car into a parking space is an act of concealment. Ultimately, since the evidence must be construed in favor of the jury verdict, Judge Martin concurred that the jury verdict should be affirmed.

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