Misprision of felony - The Washington Post

The government urges, and the majority accepts, that some combination of deceit and criminality can add up to concealment if you look at it from the right angle. This interpretation gives the misprision statute a stunningly broad reach. The government proved that Defendant lied and was tangled up in drugs. But the government did not prove that Defendant concealed the underlying felony — the narcotics conspiracy helmed by Deena Castleman. I would vacate Defendant’s conviction on all counts, not just count 1, and therefore respectfully dissent in part….

I construe the concealment element of the misprision statute somewhat more narrowly than the majority.

Concealment cannot exist in a vacuum. If one conceals a fact — that is, if someone “prevents or hinders the discovery of something,” Black’s Law Dictionary 282 (7th ed.1999), or “prevent[s] disclosure or recognition of” something, Webster’s Third New Int’l Dictionary 469 (1993) — the fact is concealed from someone. The question this case presents is “from whom?” A reader, considering the fact that Defendant lied to judges and other persons of authority, might well think that the government’s answer to that question is “officials of some form or another.” But the government’s theory of the concealment element is far broader and vaguer. At oral argument on May 9, 2014, this Court and the government engaged in the following colloquy:

Thus, according to the government, Defendant’s lies did not in and of themselves constitute “concealment.” Rather, the lies were the mechanisms to keep Castleman happy, and it was her happiness that effectuated the concealment. In other words, Defendant accomplished his concealment by appeasing the very person who had committed the underlying felony.

The ultimate target of the concealment is presumably some unknown official whom Castleman might have approached (waiving her Fifth Amendment privilege against self-incrimination in the process), had Defendant not kept her out of prison. This is a triple-bank-shot interpretation of concealment.

The majority’s construction of the statute is even broader than the government’s. To show the stunning reach of the majority’s interpretation, we need only continue the tale of the lying marijuana grower described in the majority opinion. Suppose that one of the visitors to the farm is the farmer’s brother-in-law, Bill. The farmer feeds the horsemint line to Bill, but Bill knows marijuana when he sees it, and can deduce from the size of the farmer’s plot that the end product is not meant purely for personal use.

When Bill returns home, his wife asks him how the farmer’s garden is growing. Bill, not wanting to get into an extended discussion with his wife about her brother’s marijuana, tells her that the farmer seems to have a successful horsemint crop. According to the majority’s logic, unless Bill quickly finds a federal prosecutor or judge and reveals the farmer’s crime, Bill himself is guilty of misprision of felony.

[Footnote: The majority’s hypothetical takes another wrong turn when it suggests that if a marijuana grower erects a fence to keep away prying eyes, that act makes the grower guilty of misprision. In order to be guilty of misprision, a defendant must both conceal a felony and also fail to notify federal authorities of that crime. The misprision statute “would be unconstitutional under the Fifth Amendment if, and to the extent, it required a defendant to report her own criminal conduct to the authorities.”]

Thus does misprision extend the U.S. criminal code into everyday conversations between a husband and wife who have committed no crime apart from speech about others’ misdeeds. Cf. Arthur Andersen, 544 U.S. at 704 (construing the witness tampering statute away from possibly criminalizing “a wife who persuades her husband not to disclose marital confidences”); United States v. Worcester, 190 F.Supp. 548, 566 (D.Mass.1961) (Wyzanski, J.) (“To suppose that Congress reached every failure to disclose a known federal crime, in this day of myriad federal tax statutes and regulatory laws, would impose a vast and unmeasurable obligation. It would do violence to the unspoken principle of the criminal law that as far as possible privacy should be respected.” (quotation marks omitted)). I fail to see how this construction would not “encourage arbitrary and discriminatory enforcement” of the misprision statute, and thus run afoul of the vagueness doctrine.

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