United States v. Jennifer Lynne Weekley , 184 F. App'x 903 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15606 JUNE 19, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 05-00059-CR-WS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JENNIFER LYNNE WEEKLEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(June 19, 2006)
Before TJOFLAT, DUBINA and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Jennifer Lynne Weekley appeals her conviction for misprision of
a felony, arising from a bank robbery, in violation of 18 U.S.C. § 4. On appeal,
Weekley argues that the district court erred in denying her motion to dismiss the
indictment because she could have been held accountable for the underlying felony
as a principal or accessory after the fact, and asserts that the charge should have
been dismissed because her failure to make known information regarding the bank
robbery was an exercise of her Fifth Amendment privilege.
We review a district court’s denial of a motion to dismiss an indictment for
an abuse of discretion. United States v. Pielago, 135 F.3d 703, 707 (11th Cir.
1998). According to 18 U.S.C. § 4, which addresses misprision of a felony:
Whoever, having knowledge of the actual commission of a felony
cognizable by a court of the United States, conceals and does not as
soon as possible make known the same to some judge or other person
in civil or military authority under the United States, shall be fined
under this title or imprisoned not more than three years, or both.
“Misprision of a felony requires both knowledge of a crime and some affirmative
act of concealment or participation. . . . [M]ere failure to report a known felony
would not violate 18 U.S.C. § 4.” Itani v. Ashcroft, 298 F.3d 1213, 1216 (11th Cir.
2002) (quotation omitted).
The Fifth Amendment to the United States Constitution provides that “no
person . . . shall be compelled in any criminal case to be a witness against himself.”
U.S. Const. amend. V. We have held that “[t]o assert this privilege against
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self-incrimination . . . a witness’ fear of conviction on the basis of his testimony
must be reasonable, real, and appreciable.” United States v. Gecas, 120 F.3d 1419,
1424 (11th Cir. 1997) (en banc). “[N]either the text nor the spirit of the Fifth
Amendment confers a privilege to lie. Proper invocation of the Fifth Amendment
privilege against compulsory self-incrimination allows a witness to remain silent,
but not to swear falsely.” Brogan v. United States, 522 U.S. 398, 404, 118 S. Ct.
805, 810, 139 L. Ed. 2d 830 (1998) (quotation omitted). This is true regardless of
whether such statements are under oath. United States v. Veal, 153 F.3d 1233,
1241 (11th Cir. 1998).
In the instant appeal, the record demonstrates that Weekley made false
statements to a law enforcement officer concerning the bank robbery at issue. We
conclude that the district court applied the correct legal standard in determining
that Weekley could not use the Fifth Amendment to shield a false statement to a
law enforcement officer, and thus defend herself from prosecution for misprision
of a felony. Accordingly, the district court did not abuse its discretion in denying
Weekley’s motion to dismiss the indictment, and we affirm its order and
Weekley’s conviction.
AFFIRMED.
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