PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. No. 98-4466

ADHIAMO MITCHELL,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Robert E. Payne, District Judge.

(CR-98-57)

Argued: April 9, 1999

Decided: May 20, 1999

Before HAMILTON, MOTZ, and TRAXLER, Circuit Judges.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Motz wrote the

opinion, in which Judge Hamilton and Judge Traxler joined.

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COUNSEL

ARGUED: Michael Cornell Wallace, Sr., Assistant United States

Attorney, Richmond, Virginia, for Appellant. Keith Nelson Hurley,

CAWTHORN, PICKARD & ROWE, P.C., Richmond, Virginia, for

Appellee. ON BRIEF: Helen F. Fahey, United States Attorney,

James B. Comey, Assistant United States Attorney, Richmond, Virginia, for Appellant.

_________________________________________________________________
OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

After a jury found Adhiamo Mitchell guilty of harboring and concealing a fugitive, the district court concluded that the Government

had failed to prove that he had engaged in any affirmative act of harboring and so granted his motion for a judgment of acquittal. Because

the Government put forth evidence from which a rational jury could

conclude that Mitchell committed an affirmative act of harboring, the

evidence was sufficient to support his conviction. Accordingly, we

reverse the judgment of acquittal and remand for reinstatement of the

verdict and entry of judgment against Mitchell.

I.

In 1998, Eric Jeter was wanted for conspiracy to commit a bank

robbery in New York. During January of that year, Jeter stayed at a

Richmond apartment that was rented to Denis Somerville and his sister Tasha. Some time in January, Mitchell, accompanied by Jeter's

girlfriend, Tiesha, traveled from New York to that same Richmond

apartment.

On January 22, six law enforcement officers, including FBI agents

and local policemen, went to the Richmond apartment. FBI agents

Charles Sell and Robert Heinzman knocked on the door. Mitchell,

who testified on his own behalf, stated that on the day the officers

came to the apartment he had been living in the apartment for three

or four days. Mitchell recounted that when the agents knocked, he had

been dozing on the couch and was sick and under the influence of

cold medicine. In response to the knocking, Mitchell opened the front

door part way and remained behind the door. Agent Sell informed

Mitchell that the agents were looking for a person named Eric Jeter

and showed Mitchell a photograph of Jeter. Mitchell told Agent Sell

that he was alone in the apartment and that he did not know Eric Jeter.

(Mitchell testified at trial that Jeter had numerous nicknames and aliases and that he did not know Jeter as Jeter, but Mitchell admitted that

he lied to the agents when he told them he was alone and did not

know the person in the picture). Agent Sell, with his gun at his side,

asked permission to enter the apartment. Mitchell denied access

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unless Agent Sell produced a warrant. Agent Sell then asked one of

the other agents to retrieve the warrant from the car.

In the meantime, another agent radioed the officers that he saw an

arm "peeling the blinds down at a window" in the rear of the house.

In response, five or six officers charged the door. Agent Sell testified

that Mitchell attempted to push the door closed, and the officers overpowered him in two or three seconds. Sell recalled Mitchell yelling

as the officers attempted to enter. Mitchell testified that he "pushed

the door back," resisting the officers's entry, because his foot got

caught when the officers rushed the door. Subsequently, the police

apprehended Jeter in the apartment and arrested both Jeter and Mitchell.

After consideration of this evidence, the jury found Mitchell guilty

of harboring and concealing a fugitive in violation of 18 U.S.C.A.

§ 1071 (West 1976 and Supp. 1998). The defense then renewed its

Rule 29 motion for acquittal. See Fed. R. Crim. P. 29. After briefing

and argument, the district court granted the motion. The court properly recognized that "some affirmative action is required to harbor or

conceal within the meaning of § 1071," and then found that in this

case "the impetus for the force that was confronted began with the

government," not Mitchell. For this reason, the court concluded that

the Government had not proven that Mitchell took any affirmative act

to harbor or conceal Jeter. The Government appeals.

II.

Initially, Mitchell contends that the Government lacks authority to

pursue, and we lack jurisdiction to hear, this appeal. Mitchell maintains that 18 U.S.C.A. § 3731 (West 1985) provides the exclusive

authority for appeals by the Government in criminal cases. Because

that statute does not explicitly refer to an appeal from a judgment of

acquittal after a jury verdict of conviction, he asserts that the Government lacks authority to appeal here.

The argument is without merit. Both the Supreme Court and this

court have previously confronted, and squarely rejected, this claim.

See United States v. Martin Linen Supply Co., 430 U.S. 564, 568

(1977) (in § 3731 "Congress intended to remove all statutory barriers

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to Government appeals and to allow appeals whenever the Constitution would permit. . . . Therefore unless barred by the Double Jeopardy Clause . . . appeals by the Government from the judgments of

acquittal . . . are authorized by § 3731.") (internal quotation marks

omitted); United States v. Steed, 674 F.2d 284, 286 (4th Cir. 1982)

(en banc) (same). Moreover, the "Double Jeopardy Clause does not

bar a Government appeal from a ruling in favor of the defendant after

a guilty verdict has been entered by the trier of fact." United States

v. DiFrancesco, 449 U.S. 117, 130 (1980). This is so because "reversal on appeal would merely reinstate the jury's verdict, [so] review of

such an order does not offend the policy against multiple prosecution." United States v. Wilson, 420 U.S. 332, 344-45 (1975).

Accordingly, we have jurisdiction to consider the Government's

appeal and now turn to the question of the sufficiency of the evidence

to sustain the conviction.

III.

When reviewing a district court's post-verdict judgment of acquittal, we must sustain the jury's verdict "if there is substantial evidence,

taking the view most favorable to the Government, to support it."

Steed, 674 F.2d at 286 (internal quotation marks and citation omitted).

The statute at issue here, 18 U.S.C.A. § 1071, punishes any person

who

harbors or conceals any person for whose arrest a warrant

or process has been issued . . . so as to prevent his discovery

and arrest, after notice or knowledge of the fact that a warrant or process has been issued for the apprehension of such

person.

Conviction under this statute requires that the Government prove

beyond a reasonable doubt that (1) a federal warrant has been issued

for the fugitive's arrest, (2) the harborer had knowledge that a warrant

had been issued for the fugitive's arrest, (3) the defendant actually

harbored or concealed the fugitive, and (4) the defendant intended to

prevent the fugitive's discovery or arrest. See United States v. Silva,

745 F.2d 840, 848 (4th Cir. 1984).

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In its consideration of the motion for acquittal, the district court

found that the Government presented evidence sufficient to satisfy the

first, second, and fourth Silva elements. Specifically, as to the first

two elements, the court held that once the Government presented

undisputed evidence that the agents informed Mitchell that they possessed an arrest warrant for Jeter "a reasonable juror could have found

that the defendant had knowledge that a warrant had been issued for

the fugitive's arrest." With regard to the fourth element, the court

found that a jury could have inferred from Mitchell's lie "about the

presence of a man meeting the description of Jeter after having been

shown a picture of Jeter" that Mitchell "intended to prevent the fugitive's discovery or arrest." Mitchell does not contest these findings.

Only the third element -- whether the Government presented sufficient evidence that Mitchell actually harbored or concealed the fugitive -- is at issue here.

Section 1071 does not proscribe all forms of aid to a fugitive. See

Silva, 745 F.2d at 849. A person does not actually harbor or conceal

in violation of that statute merely by lying to the police about the

whereabouts of a fugitive. See United States v. Lockhart, 956 F.2d

1418, 1423 (7th Cir. 1992); United States v. Magness, 456 F.2d 976

(9th Cir. 1972); United States v. Foy, 416 F.2d 940, 941 (7th Cir.

1969). Moreover, providing general financial assistance will not satisfy § 1071's requirement of actual harboring or concealment. See

Silva, 745 F.2d at 849.

The actual harboring or concealment element requires some "affirmative, physical action" by the defendant. United States v. Lockhart,

956 F.2d 1418, 1423 (7th Cir. 1992). Generally, the Government must

prove a "physical act of providing assistance, including food, shelter,

and other assistance to aid the prisoner in avoiding detection and

apprehension." Id. (citing United States v. Kutas, 542 F.2d 527, 528

(9th Cir. 1976)) (internal quotation marks omitted). For example, evidence that a defendant arranged for hotels and vehicles, see Stamps

v. United States, 387 F.2d 993 (8th Cir. 1967), rented apartments and

shopped for a fugitive, see United States v. Giampa, 290 F.2d 83 (2d

Cir. 1961), or provided a fugitive with false identification, see United

States v. Gros, 824 F.2d 1487 (6th Cir. 1987), has been held sufficient

to support a conviction under the statute.

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Similarly, closing the door on law enforcement officers who are

attempting to apprehend a suspect is an "affirmative physical act of

providing assistance" adequate to satisfy the requirement of § 1071.

See United States v. Stacey, 896 F.2d 75 (5th Cir. 1990). In Stacey,

the wife of a fugitive, who was hiding in the house, closed and locked

the front door after she saw the police approaching. At trial, the jury

found this conduct sufficient to meet the requirements of § 1071. Id.

at 77. On appeal, Stacey argued that "the jury convicted her for closing the door on the officers, and that those actions cannot constitute

harboring and concealing as a matter of law." Id. The Fifth Circuit

upheld the conviction, reasoning that:

Any physical act of providing assistance . . . to aid the prisoner in avoiding detection and apprehension will make out

a violation of section 1071. Here, that physical act was closing and locking the front door of a house where a fugitive

was hidden. And that is enough. Given that Stacey knew the

officers and knew why they were driving by the house, her

locking them out was enough to sustain a conviction for harboring.

Id. (internal quotation marks, citations, and footnotes omitted).

Mitchell does not assert that the Stacey analysis is faulty. Rather

he claims that the "unrefuted" evidence at trial demonstrated that he

"did not engage in any `active' conduct to harbor or conceal," but

simply caught his foot in the door when the officers attempted to

enter. Mitchell did indeed testify at trial that his foot was behind the

door and that when the officers began pushing the door towards him,

his foot got "caught in the door." He further stated that he began

screaming "My foot is caught. My foot is caught." Agent Sell, however, testified that when the officers attempted to enter the apartment,

Mitchell "physically resisted [the officers] by trying to push the door

closed." According to Agent Sell, it took about two to three seconds

to overpower Mitchell. Agent Sell recalled Mitchell yelling as the

struggle was taking place, but the agent did not remember if Mitchell

screamed anything in particular.

The district court believed that the testimony from all the witnesses

-- the agents and Mitchell -- clearly demonstrated that the "impetus

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of force" came from the officers storming the apartment, not from

Mitchell shutting them out. What seemed to be resistance on Mitchell's part could be entirely explained by the fact that his foot was

caught in the door. Mitchell's own testimony, however, belies this

theory. Mitchell testified not just that his foot was caught in the door,

but that as the officers tried to enter, he "was closing the door." In

sum, Mitchell's contention that the "unrefuted" evidence demonstrated that his actions were passive "non-help" to the officers rather

than active assistance to the fugitive is simply not borne out by the

record.

The jury heard Mitchell's version of the events and the Government's; it apparently believed the Government's version. The Government presented evidence that Mitchell affirmatively tried to close

the apartment door on the officers when they attempted to enter the

building. Such actions clearly constitute an "affirmative physical

action" intended to keep the officers out of the building and help the

fugitive avoid apprehension, sufficient to meet the third Silva element.

IV.

Because, viewing the evidence in the light most favorable to the

Government, sufficient evidence was presented from which a reasonable jury could have found Mitchell guilty beyond a reasonable doubt

of harboring or concealing, we reverse the district court's judgment

of acquittal and remand for reinstatement of the jury verdict and entry

of judgment against Mitchell.

REVERSED AND REMANDED

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