Serving as a "getaway driver" to flee the scene of an offense is an affirmative act in furtherance of the offense. See United States v. Taylor, 322 F.3d 1209, 1211-12 (9th Cir. 2003); see also United States v. Daniel, 887 F.3d 350, 356 (8th Cir. 2018). The evidence also supported the district court's inference that A. Herrera shared the shooter's specific intent to kill when he knowingly served as driver for a shooter who sought to retaliate against a rival gang member.
After oral argument, the panel directed the parties to submit supplemental briefs on whether it is permissible for White to be convicted and sentenced for accessory after the fact to an arson offense that he himself committed as a principal. See United States v. Taylor, 322 F.3d 1209, 1212 (9th Cir.2003) (finding evidence sufficient to show violation of the “plain language” of 18 U.S.C. § 3, but concluding that § 3 was inapplicable given that defendant “was found guilty as a principal to the crime”); see also State v. Jewell, 104 N.C.App. 350, 409 S.E.2d 757, 764 (1991) (Wynn, J., dissenting) (“It stands to reason that ... a principal felon cannot be an accessory after the fact to himself....”). But see United States v. Triplett, 922 F.2d 1174, 1180 (5th Cir.1991).
Taylor's appeal was resolved in a separate opinion and memorandum disposition. See United States v. Taylor, 322 F.3d 1209 (9th Cir. 2003); United States v. Taylor, 59 Fed. Appx. 960, 2003 WL 1459140 (9th Cir. 2003). Before trial, Richard Lougee was appointed to represent Waggoner.
Petitioner appealed to the Court of Appeals for the Ninth Circuit, where he argued that the district court erred in refusing to dismiss his conviction for accessory after the fact, which was supported by the same facts as his conviction for aiding and abetting. See United States v. Taylor, 322 F.3d 1209, 1211 (9th Cir. 2003). The Ninth Circuit agreed, vacating Petitioner's sentence for his accessory after the fact conviction but affirming on all other issues.
¶17 In support of his position, Oungst relies on United States v. Taylor, 322 F.3d 1209 (9th Cir. 2003). In that case, Taylor was convicted of both aiding and abetting a murder of a confidential informant and being an accessory after the fact for driving the shooter from the scene.
C.A. 9th Cir. Certiorari denied. Reported below: 322 F. 3d 1209 and 59 Fed. Appx. 960.
As a result, an accessory after the fact cannot be convicted as a principal on the same set of facts as a matter of law. See United States v. Taylor, 322 F.3d 1209, 1212 (9th Cir.2003) (concluding that, "[a]lthough the evidence is sufficient to show that Taylor violated the plain language of the accessory after the fact statute, the statute does not apply to Taylor given that he was found guilty as a principal to the crime"). For example, although a participant in the escape phase of a crime may technically satisfy the plain language of 18 U.S.C. § 3, because the escape phase of the crime "is still part of the commission of the crime," a defendant cannot be punished as an accessory after the fact.Id. California law treats the escape or get-away phase exactly the same under Penal Code § 32 as the federal courts interpret 18 U.S.C. § 3.
In any event, Patris was not charged as a principal, and his conviction as an accessory is therefore appropriate. See United States v. Taylor, 322 F.3d 1209, 1212 (9th Cir. 2003). Finally, as to the notion that the crime was not completed at the time Patris was involved in the cover-up, at least the possession with intent to distribute crime was completed.
Other circuits have explicitly found that the escape phase of a bank robbery is a continuation of the crime. See, e.g., Williams, 344 F.3d at 372 ("Our case law has consistently treated escape as part and parcel of a bank robbery."); United States v. Taylor, 322 F.3d 1209, 1212 (9th Cir. 2003) ("We have held that the escape phase of a crime is still part of the commission of the crime."). This does not mean that proof of getaway efforts is a distinct element of the crime of bank robbery.
Defendant appealed. The Court of Appeals, 322 F.3d 1209, vacated conviction for accessory after the fact, affirmed in part, and remanded in part. On remaining issues, the Court of Appeals held that: (1) admission of dying declaration of victim was not error; (2) defendant's rights under confrontation clause were not violated; (3) admission of witness's statement of defendant's own statement to her was not plain error; (4) admission of alleged co-conspirator's statement was not clear error; (5) denial of defendant's motion for new trial based on new evidence was not abuse of discretion; and (6) trial court had jurisdiction to try defendant.