United States v. Timothy Sessions ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-1756
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United States of America, *
*
Appellee, *
*
v. *
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Timothy Daniel Sessions, *
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Appellant. *
__________ Appeals from the United States
District Court for the Eastern
No. 00-1791 District of Arkansas.
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[UNPUBLISHED]
United States of America, *
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Appellee, *
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v. *
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Vincent Elliott Allen, *
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Appellant. *
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Submitted: September 13, 2000
Filed: October 2, 2000
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Before RICHARD S. ARNOLD, LAY, and FAGG, Circuit Judges.
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PER CURIAM.
While burglarizing an Arkansas gun shop, three men took 83 weapons and $6316
in cash. They also damaged the alarm system, display cases, and a window. Timothy
Sessions, a gun shop employee and acquaintance of one of the burglars, gave the
burglars information about the store's alarm system just hours before the burglary.
Vincent Allen, a cab company mechanic, drove the burglars to and from the gun shop
in exchange for three of the stolen weapons. Sessions was later convicted of misprision
of a felony under 18 U.S.C. § 4 for failing to reveal what he knew about the burglary
and was sentenced to 12 months imprisonment. Allen pleaded guilty to aiding and
abetting the theft of firearms from a federally licensed dealer in violation of 18 U.S.C.
§ 922(u), was sentenced to 30 months imprisonment, and was ordered to pay full
restitution of $48,600 jointly and severally with the other burglars. Sessions appeals
his conviction and Allen appeals the restitution order. We affirm.
We reject Sessions' meritless claim that his motion for judgment of acquittal
should have been granted because the evidence was insufficient to support a conviction
for misprision of a felony. The jury heard testimony that Sessions met with the burglars
the night of the burglary and gave them information about the gun store's security
system, paged one of the burglars the day after the burglary to tell him the police were
following a different lead, and gave incomplete information to police regarding his
knowledge of the burglary. We also reject Sessions' argument that his Fifth
Amendment right not to incriminate himself made it unnecessary for him to give police
all the information known to him about the burglary. Because Sessions gave the police
partial information that was misleading, Sessions cannot rely on the Fifth Amendment
for protection. See Brogan v. United States, 522 U.S. 398, (1998) (Fifth Amendment
privilege against compulsory self-incrimination allows witness to remain silent, but not
to swear falsely).
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Allen claims the restitution order violated the terms of his plea agreement. We
disagree. Although the parties stipulated in the plea agreement that, for relevant
conduct purposes, Allen's sentence would be calculated based on the three weapons he
received as payment for driving the burglars, the plea agreement specifically stated that
"[e]ven if [] restitution is not mandatory for this offense, the United States may require
full restitution to all victims as a condition of this plea agreement." Thus, the district
court could properly order full restitution. See United States v. Bartsh, 985 F.2d 930,
933 (8th Cir. 1993).
We affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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