Accessory After the Fact. UCMJ Art. 78
- 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 courtmartial may direct.” Article 78.
- Not a Lesser included Offense of the Underlying Offense–Must Be Independently Charged. United States v. Price, 34 C.M.R. 516 (A.B.R. 1963) (holding that neither accessory after the fact nor receiving stolen property were lesser included offenses of larceny); United States v. Greener, 1 M.J. 1111 (N-M.C.M.R. 1977). But see United States v. Michaels, 3 M.J. 846 (A.C.M.R. 1977) (permitting accused to enter a substitute plea of accessory after the fact to larceny, even though not a lesser included offense of the referred larceny charge).
- Acquittal of the Principal Actor Is No Defense. United States v. Marsh, 32 C.M.R. 252 (C.M.A. 1962) (holding that an accused can be convicted of a violation of Article 78 without regard to the separate conviction or acquittal of the principal actor).
- Principal Offender Need Not Be Subject to the UCMJ. United States v. Michaels, 3 M.J. 846 (A.C.M.R. 1977); United States v. Blevins, 34 C.M.R. 967 (A.F.B.R. 1964) (holding that military accused can be convicted of a violation of Article 78 without regard for the amenability of the principal offender to military jurisdiction).
- Failure to Report Offense. The mere failure to report an offense will not make one an accessory after the fact. However, such failure may violate a lawful order or regulation and thus constitute an offense under Article 92. See supra I.C.5., this chapter. Also, a positive act of concealment and failure to report a serious offense can constitute the offense of misprision of a serious offense under Article 134. See infra II.D., this chapter.