Update: In 2014, Dias Kadyrbayev and Azamat Tazhayakov were convicted of obstruction of justice and conspiracy. Robel Phillipos was convicted of providing false statements to the FBI. (See "Materially False": Third Friend in Marathon Bombing Investigation Convicted.)
On August 8, 2013, a federal grand jury indicted Dias Kadyrbayev and Azamat Tazhayakov, friends of Boston Marathon bombing defendant Dzhokhar Tsarnaev, for conspiracy to obstruct justice, obstruction of justice, and aiding and abetting in relation to their alleged role in hiding evidence regarding the bombing. A third friend, Robel Phillipos, faced federal charges of lying to investigators after the bombing. The government could have charged the three friends as accessories after the fact. This is a crime with a long history in English and U.S. law. A conviction turns on the intentions of the accused and the timing of their conduct.
What Is an Accessory?
Accessories are individuals who assist a “principal” (main perpetrator) in carrying out or getting away with a crime, through actions they take either before or after the crime is committed.
Principals and accomplices
Traditionally, the law divided participants in a crime into two categories: principals and accessories, sometimes called accomplices. A principal is one who commits a crime himself. Accessories are accomplices who are not directly or immediately involved in the commission of the crime. The law further organizes accessories into two types:
- Accessories before the fact, who knowingly aid in planning or committing a crime before commission but are not present when it is committed, and
- Accessories after the fact, who knowingly and intentionally assist the principal after the crime is committed.
To be convicted as an accessory, a person must know that a crime is going to take place (accessory before the fact) or has taken place (accessory after the fact), and must intend to aid in the commission or concealment of the crime.
Accessory “after the fact”
A prosecutor must prove that a person charged as an accessory after the fact aided a principal perpetrator, knowing that the principal committed a crime. The prosecutor must also prove that the defendant acted with the intent to hide the crime or assist the principal in escaping arrest, conviction, or punishment.
The basic wrong committed by an accessory after the fact is usually obstruction of justice or interfering with investigation of a crime. This is the essence of the allegations against the three friends of the alleged Boston Marathon bomber. One of the three, Phillipos, has informed police that he and the other two noticed that their friend resembled the one of the two bombers depicted in surveillance photos that the government released. Phillipos further told police that the three friends then went to the alleged bomber’s dorm room and found a backpack with empty fireworks in it. They knew that the gunpowder in fireworks was used in pressure-cooker bombs. The three then realized, according to the young man, that their friend may have been involved in the bombing and they took the backpack, fireworks, and a laptop from the dorm room to a dumpster. The three could be considered accessories after the fact if the government proved that they:
- knew that the bombings had occurred
- knew that their friend was allegedly involved, and
- intended to aid the alleged bomber in avoiding arrest, conviction, or punishment, such as by helping to dispose of evidence or lying to investigators.
Even without accessory-after-the-fact charges, the friends’ fate turns on what they knew, and what they intended, when they allegedly decided to help the alleged bomber “clean” his dorm room.
A person charged as an accessory after the fact will be acquitted if she can present evidence that she either didn’t know the perpetrators or didn’t know about the crime. For example, in the Boston Marathon bombing case, if a janitor at the alleged bomber’s dorm had dumped the backpack of fireworks in a dumpster under the assumption it was garden-variety garbage, the janitor couldn’t be convicted as an accessory after the fact even though she disposed of evidence.
Conviction of the principal felon is not required
Under federal law, a person charged as an accessory after the fact may be convicted even if the principal felon is acquitted. This means that, so long as the government proves that the accessory defendant knew a crime had been committed and aided the alleged (though acquitted) principal in concealing evidence or avoiding arrest, conviction, or punishment, the defendant can be convicted as an accessory after the fact. So, if the three friends in the Boston Marathon bombing case knew about the bombings, knew that their friend was sought in connection with that crime, and helped him dispose of possible evidence, they could be convicted regardless of what happens to the bombing suspect himself.
Common Defenses to an Accessory After the Fact Charge
Here are a few of the defenses that a person charged as an accessory after the fact may raise.
Lack of knowledge
If a person charged as an accessory after the fact doesn’t know that the principal committed a crime, the person cannot be convicted. In the example above of the dorm janitor, she did not know that the dorm occupant was allegedly involved in a crime when she took the backpack to dispose of it, so she would be acquitted if charged.
Lack of intent
Where a person has no intention of aiding another in concealing a crime or avoiding arrest, conviction, or punishment, that person cannot be convicted as an accessory after the fact. This is true even when a person acts with knowledge that a crime may have been committed, such as when a person accepts stolen property. Although the person may know the property is stolen, unless her intent in accepting it is to assist the thief in hiding evidence or evading prosecution, she is not an accessory after the fact. Of course, she may be guilty of other crimes, such as dealing in stolen goods.
Protected relationship with the principal felon
In many states, including Massachusetts, a spouse is exempt from prosecution as an accessory after the fact. The justification for this exemption is that it isn’t reasonable to expect spouses (or, in some states, other close family members) not to aid their family members. In the Boston Marathon bombing case, the widow of the second alleged bomber may yet be implicated in the crime. She couldn’t be charged as an accessory after the fact under Massachusetts law, although that wouldn’t prevent the federal government from charging her under federal law.
The state-law spousal exemption doesn’t apply to accessories before the fact. Therefore, the widow could theoretically be charged as an accessory before the fact under state law.
How Is an Accessory After the Fact Punished?
The penalty for conviction as an accessory after the fact is less severe than the penalty faced by the principal for the felony that the accessory aided. This is because accessories after the fact are generally viewed under the law as less threatening than principals or accessories before the fact, insofar as they aren’t involved in the planning or commission of the crime.
However, the penalty is still potentially quite severe. Were the Boston Marathon bombing friends convicted as accessories, they would face penalties of not more than one-half of the maximum sentence and fine that could be imposed on the bomber himself. If the bomber could be given a sentence of life in prison or the death penalty, each accessory convicted could be imprisoned for up to 15 years. (18 U.S.C. § 3.)