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1831

Harboring—18 USC 1071—Third Element -- Concealing

The third element that the government must prove to establish a section 1071 offense is that the defendant actually harbored or concealed the fugitive. The courts have uniformly held that 18 U.S.C. § 1071 does not prohibit all forms of aid to a fugitive. Instead, what is generally required to establish a violation is "any physical act of providing assistance, including food, and shelter, and other assistance to aid the prisoner in avoiding detection and apprehension." United States v. Silva, 745 F.2d 840, 849, (4th Cir. 1984), cert. denied, 470 U.S. 1031 (1985), quoting United States v. Kutas, 542 F.2d 527, 528 (9th Cir. 1976), cert. denied, 429 U.S. 1073 (1977) (18 U.S.C. § 1072 case). The following instruction for the meaning of the terms "harbor" and "conceal" was upheld in United States v. Whitman, 480 F.2d 1028 (6th Cir.), cert. denied, 414 U.S. 1026 (1973):

The word "harbor" . . . means to lodge or to aid or to care for one who is secreting himself from the processes of the law. The word "conceal" . . . means to hide or to secrete or to keep out of sight or to aid in preventing the discovery of one who is secreting himself from the processes of the law.

Several cases have construed the terms "harbor" and "conceal" narrowly, so as not to cover the mere payment of money to a fugitive, United States v. Shapiro, 113 F.2d 891 (2d Cir. 1940), or the making of a false statement to law enforcement officers concerning the whereabouts of the fugitive, United States v. Magness, 456 F.2d 976, 978 (9th Cir. 1972); United States v. Foy, 416 F.2d 940 (7th Cir. 1969). As stated by the court in United States v. Foy, at 941:

The statute proscribes acts calculated to obstruct the efforts of the authorities to effect arrest of the fugitive, but it does not impose a duty on one who may be aware of the whereabouts of the fugitive, although having played no part in his flight, to reveal this information on pain of criminal prosecution.

But see, United States v. Donaldson, 793 F.2d 498, 502 (2d Cir. 1986), cert. denied, 107 S.Ct. 932 (1987) (defendant, "by lying to the agents about [the fugitive's] presence, had taken a positive step to prevent the agents from discovering [the fugitive]"); United States v. Biami, 243 F. Supp. 917, 918 (E.D.Wis. 1965) (refusal to admit police to enter defendant's apartment "was an active measure taken by the defendant to prevent the discovery and arrest of [the fugitive]. If the government officials knew where [the fugitive] was, this would not alter the nature of the defendant's conduct.").

Other cases which have upheld convictions under 18 U.S.C. §  1071 include situations where the defendant: had rented a room for the fugitive and supplied him with guns and disguises, United States v. Silva at 849; United States v. Thornton, 178 F. Supp. 42, 43 (E.D.N.Y. 1959); allowed the fugitive to stay in his home and instructed a family member to remain silent about the fugitive's presence, United States v. Udey, 748 F.2d 1231, 1235-36 (8th Cir. 1984), cert. denied, 472 U.S. 1017 (1985); had purchased cars for the fugitive and paid repair bills, United States v. Arguelles, 594 F.2d 109 (5th Cir.), cert. denied, 444 U.S. 860 (1979); and had signed a lease, installed a telephone, and shopped for groceries for the fugitive, United States v. Giampa, 290 F.2d 83, 84-85 (2d. Cir. 1961).

[cited in Criminal Resource Manual 1838]