United States v. Connie Whitley Wilkes, 972 F.2d 344, 4th Cir. (1992)

972 F.
2d 344
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of

unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
Connie Whitley WILKES, Defendant-Appellant.
No. 92-5037.
United States Court of Appeals,

Fourth Circuit.
Argued: June 18, 1992
Decided: August 7, 1992
ARGUED: Farris Allen Duncan, Goldsboro, North Carolina, for

Appellant.
Robert Edward Skiver, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee. ON BRIEF: Margaret Person Currin, United
States Attorney, Raleigh, North Carolina, for Appellee.
Before RUSSELL, WIDENER, and HALL, Circuit Judges.
PER CURIAM:
OPINION
1
Connie Wilkes appeals her conviction of misprision of felony. She attacks the
sufficiency of the evidence to sustain the conviction. Finding no merit in this
challenge, we affirm.
I.
2
Chad and Joseph Jones, who are brothers, were at the center of a cocaine
smuggling and distribution ring in eastern North Carolina from late 1989 until
July, 1990. A third brother, who was serving in the military in Panama, shipped
cocaine in stereo equipment to North Carolina. When Chad and Joseph received
the cocaine, they stored it in a shed behind the home of Jimmy Arrington. The
final step of the operation was delivery of the cocaine to "Jaguar," from New
York, who would come to North Carolina to pick it up. These pick-ups were
arranged through phone calls from Chad Jones to"Jaguar."
Jimmy Arrington was arrested on July 2, 1990; Chad Jones witnessed the
arrest. The Jones brothers went on the lam. Appellant Connie Wilkes, their
"second mother," allowed them to stay at her home from at least July 4 to July
9, 1990.
Chad Jones called and received calls from "Jaguar" several times during his
stay at Wilkes' house. "Jaguar" had $7,500 wired to the Jones' sister Anita to
get a bail bond for Arrington. Wilkes took the money and went to bail
Arrington out; however, Arrington's bail was $50,000 cash, and Wilkes was
unsuccessful.
On Saturday, July 7, during a card game at Wilkes' house, the conspirators

discussed disposing of 28 kilograms of cocaine that the authorities had not
discovered. Wilkes was present during the conversation, as were her 17-yearold son Anjewal Whitley, her boyfriend Clyde Ballard, and another conspirator,
Julian Daniels.
The next day, Joseph Jones, Anjewal Whitley, and Julian Daniels went to
Arrington's shed and retrieved the 28 kilograms. They moved the cocaine to a
junk car in the neighborhood. Chad Jones called "Jaguar," who told him to take
the cocaine to a local Day's Inn and give it to "Joey."
Chad asked Wilkes for a ride to the Day's Inn. She agreed to do so after she
returned from going out with Ballard. At midnight, after having had a few
drinks, Wilkes and Ballard returned to her home. The Jones brothers, Daniels,
and Wilkes' son joined the couple in Wilkes' car, which Ballard drove, and the
six set off.
They went to the abandoned car, where Daniels and Joseph Jones retrieved the
cocaine. They put it into Wilkes' suitcase, which her son had taken from her
house. The suitcase was placed in the trunk of the car, and they proceeded to
the Day's Inn in Kenly, North Carolina. Conversation about the cocaine
abounded. Wilkes asked if she could keep one kilogram, but her son opposed
the idea, because "the guy at the hotel" knew how many kilograms there
should be. The cocaine was delivered by the Jones brothers and Daniels to two
men at the hotel, and the group returned to Wilkes' home. At 1:20 a.m.,
someone telephoned "Jaguar" in New York. Chad Jones gave Anjewal Whitley
$100 to reimburse his mother for her suitcase.
9
DEA and Postal Service agents had intercepted two packages of cocaine in the
mail shortly after Arrington's arrest, and had been looking for Chad and Joseph
Jones ever since. The pair finally surrendered to authorities on July 11.
10
Wilkes was arrested on March 13, 1991. After receiving Miranda warnings, she
told a postal inspector that the Jones brothers had stayed at her house "when
they were doing things." She admitted that Chad Jones had asked her to take
them to the Day's Inn, but denied that she had done so.
11
On July 16, 1991, Wilkes and Clyde Ballard were indicted for aiding and
abetting distribution of 28 kilograms of cocaine and for misprision of felony.
Ballard pled guilty to the misprision count, and the aiding and abetting count
was dropped. Wilkes pled not guilty.
12
A jury trial was held on October 16-17, 1991. At the close of the government's
case, the district court entered a judgment of acquittal on the aiding and
abetting count. However, the misprision of felony count went to the jury, and
Wilkes was convicted.
13
Wilkes appeals.
II.
14
To establish the crime of misprision of felony, the government must prove: (i) a
felony was committed; (ii) the defendant knew that the felony had been
committed; (iii) the defendant failed to notify authorities; and (iv) the defendant
took an affirmative step to conceal the crime. 18 U.S.C. 4; Neal v. United
States, 102 F.2d 643, 646 (8th Cir. 1939); United States v. Baez, 732 F.2d 780,
782 (10th Cir. 1984); United States v. Ciambrone, 750 F.2d 1416, 1417 (9th
Cir. 1984); United States v. Stuard, 566 F.2d 1, 2 (6th Cir. 1977). On review of
the jury's verdict of guilt, this court must affirm if any rational trier of fact
could have found the elements of the crime proved beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307 (1979).
15
In this case, the dispute centers on the last element of misprision-did the
government prove that the defendant took an affirmative step to conceal the
crime? Appellant concedes that the evidence establishes that a felony was
committed, she knew of it, and she failed to notify authorities.
16
The government identifies an array of acts from which the jury could have
found "concealment." Wilkes harbored the Jones brothers knowing that they
were hiding from authorities. She attempted to bail out Arrington, thus
shielding the conspirators from dealing in person with authorities. She was
present, in her own automobile while evidence-the cocaine-was disposed of in
her own suitcase. She allowed her telephone to be used to call "Jaguar" in
connection with the disposal of the cocaine. Finally, her statement to the postal
inspector after her arrest misrepresented some facts and omitted others.
17
Wilkes concentrates her arguments on this final strand of evidence-her postarrest statement. She employs a good tactic, because this "concealment" is the
most problematic. There are substantial constitutional problems with branding
her failure to volunteer incriminating information under custodial interrogation
as "concealment." She certainly has a right to say nothing at all, and the circuits
that have addressed the question are uniform that a misprision conviction based
on nothing more than invocation of that right is invalid. United States v.
Jennings, 603 F.2d 650 (7th Cir. 1979); United States v. King, 402 F.2d 694
(9th Cir. 1968). Other cases have reached an analogous result in holding that
pre-arrest silence may satisfy the "failure to disclose" element of misprision,
but that silence alone is not "concealment." Lancey v. United States, 356 F.2d
407 (9th Cir.), cert. denied, 385 U.S. 922 (1966); Bratton v. United States, 73
F.2d 795, 797-798 (10th Cir. 1934); see United States v. Warters, 885 F.2d
1266, 1275 (5th Cir. 1989) (sua sponte raising for consideration on remand
adequacy of indictment charging failure to disclose but no additional act of
concealment, citing Bratton for proposition that silence is not concealment).
18
To the extent that Wilkes did not remain silent, but instead lied to the inspector
(i.e. she did not take the conspirators to the Day's Inn), a circuit precedent is
almost on point. In United States v. Pittman, 527 F.2d 444 (4th Cir. 1975), cert.
denied, 424 U.S. 923 (1976), the defendant, after receiving Miranda warnings,
gave an untruthful statement that concealed her husband's involvement in a
bank robbery. This court affirmed her misprision conviction.1 However, Wilkes
distinguishes Pittman because she claims that her prevarications concealed her
own crime, and not the felony of others, and she should be protected by the socalled "exculpatory no" doctrine, which protects a person from false statement
prosecution under 18 U.S.C. 1001 where he denies guilt to a federal
investigator. United States v. Cogdell, 844 F.2d 179 (4th Cir. 1988).
19
Because of the strength of the evidence of guilt, we will not address these selfincrimination subtleties. Wilkes rightly attacks this part of the government's
proof because it provides her good arguments. If the statement to the postal
inspector were the government's whole case, this appeal would be close and
difficult. There is much more, though.
20
Harboring a fugitive and assisting in the disposal of evidence are each sufficient
factual bases for a misprision of felony conviction.2 A reasonable jury could
easily have found that Wilkes did both. Any error in admitting Wilkes'
comments to the postal inspector is therefore harmless.
21
The conviction is affirmed.

AFFIRMED
We declined to decide, however,"whether she could have been prosecuted

successfully had she exercised her right not to incriminate herself." 527 F.2d at
445
E.g., Lancey, 356 F.2d at 410-411 (harboring fugitive or hiding evidence can
constitute "concealment"); Bratton, 73 F.2d at 797-798 (10th Cir. 1934) (dicta)
(suppression of evidence or harboring criminal would be concealment); United
States v. Gravitt, 590 F.2d 123 (5th Cir. 1979) (transporting robbers to retrieve
loot is sufficient proof of concealment)

United States v. Connie Whitley Wilkes, 972 F.2d 344, 4th Cir. (1992)

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972 F.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of

United States Court of Appeals,

ARGUED: Farris Allen Duncan, Goldsboro, North Carolina, for

On Saturday, July 7, during a card game at Wilkes' house, the conspirators

The conviction is affirmed.

We declined to decide, however,"whether she could have been prosecuted

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