One of the oldest statutes in the federal law books, which is little known and rarely enforced, effectively states that anyone who knows that a felony was committed and fails to report it is guilty of a felony themselves.
The term for this crime is "misprision of a felony," defined under Title 18 U.S.C. 4. It's a law that has been largely forgotten over time but has been reapplied by federal prosecutors in recent years. Believe it or not, if prosecutors charge you with misprision of a felony and obtain a conviction, you could be sentenced to up to three years in prison.
18 U.S.C. 4 says, “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.”
Out of all the federal criminal laws, some are rarely used. Still, a few have been brought back to life in healthcare fraud, white-collar offenses, and fraud prosecutions, such as section 4 misprision of a felony statute.
These violations are not typically charged alone but included in an indictment or used to entice a defendant to plead guilty. It should be noted that 18 U.S.C. 4 misprision of a felony statute does not require you to snitch on an alleged perpetrator in a felony crime if you were not involved and took action to conceal it.
Suppose you overheard a physician tell someone they were billing insurance payors for medically unnecessary services, and you took no action to conceal the felony conduct. If you are a licensed healthcare professional, you must report the physician's conduct to the State Medical Board.
18 U.S. Code 24, Definitions relating to Federal healthcare offense says, “the term “health care benefit program” means any public or private plan or contract, affecting commerce, under which any medical benefit, item, or service is provided to any individual, and includes any individual or entity who is providing a medical benefit, item, or service for which payment may be made under the plan or contract.”
What is the Historical Basis and Common Law Origins?
The concept of misprison of a felony dates back to English common law in the 1500s, stating that it was a crime for a citizen to report a known felony to authorities.
In the late 18th Century, the newly formed United States adopted this principle into its legal system. This law is grounded in the philosophy that every citizen is responsible for upholding the rule of law.
The statute emphasizes accountability and transparency and serves as a powerful deterrent against passive complicity in criminal activities, reinforcing the notion that silence and inaction can, under specific conditions, equate to legal culpability.
Understanding Federal Statute 18 U.S.C. 4
Today, misprision of a felony under 18 U.S.C. 4 criminalizes the active concealment of a known felony without reporting it to the relevant authorities.
The statute explicitly states that anyone who has knowledge of the commission of a felony but conceals and does not report it (either to the courts or someone in authority) can be fined and imprisoned.
While the wording may seem straightforward, the interpretation depends on two key elements: knowledge of a felony and active concealment. Both these aspects must be proven beyond a reasonable doubt for the charge to hold.
What are Modern Applications and Implications?
Misprision of a felony is a crime that is rarely charged and prosecuted; however, in modern practice, prosecutors have begun invoking the law in cases involving white-collar crimes such as healthcare fraud.
For instance, if an employee knows about fraudulent billing practices in their workplace and actively conceals this information (for example, by making false statements to an investigator), they could potentially face charges for misprision of a felony.
This application of the statute extends to various sectors, including but not limited to finance, healthcare, and corporate industries. It acts as a deterrent, encouraging individuals to disclose illicit activities they become aware of in their professional environments.
Can I Really Be Prosecuted for Failing to Report a Felony?
Technically, yes—but only if certain specific conditions have been met. There is understandable concern about the misapplication of this law when it comes to pressuring citizens unfairly to report crimes they are aware of.
However, case law has helped to clarify the intent of 18 U.S.C. 4. Most notably, a recent decision by a panel of the Ninth Circuit in United States v. Olson (2017) explained that the mere failure to report a felony does not constitute "concealment" and is not sufficient for a charge of misprision.
Prosecutors must demonstrate that a defendant both (a) knew the crime was a felony (versus a misdemeanor or an infraction) and (b) took active steps to conceal the crime from authorities.
What are the Elements of the Crime?
Specifically, the court identified key elements that prosecutors must establish to prove misprision occurred:
- A federal felony was committed,
- The defendant knew of the crime,
- The defendant knew the crime was a felony offense,
- The defendant failed to report the felony to authorities in a reasonable amount of time and
- The defendant took one or more active steps to conceal the crime from authorities.
This ruling has brought about a better understanding of the statute, highlighting the importance of the concealment aspect. It has been clarified that passive non-disclosure does not constitute misprision, potentially reducing the risk of unwarranted prosecutions.
What Are the Related Federal Laws?
18 U.S. Code Chapter 1, General Provisions, has several federal laws that are related to 18 U.S.C. 4, Misprison of Felony, such as the following:
- 18 U.S.C. 2 - Principals,
- 18 U.S.C. 3 - Accessory after the fact,
- 18 U.S.C. 5 - United States defined,
- 18 U.S.C. 6 - Department and agency defined,
- 18 U.S.C. 7 - Special maritime and territorial jurisdiction of the U.S.,
- 18 U.S.C. 8 - Obligation or other security of the United States defined,
- 18 U.S.C. 9 - Vessel of the United States defined,
- 18 U.S.C. 10 - Interstate commerce and foreign commerce defined,
- 18 U.S.C. 11 - Foreign government defined,
- 18 U.S.C. 12 - United States Postal Service defined,
- 18 U.S.C. 13 - Laws of States adopted for areas within Federal jurisdiction,
- 18 U.S.C. 15 - Obligation or other security of foreign government defined,
- 18 U.S.C. 16 - Crime of violence defined,
- 18 U.S.C. 17 - Insanity defense,
- 18 U.S.C. 18 - Organization defined,
- 18 U.S.C. 19 - Petty offense defined,
- 18 U.S.C. 20 - Financial institution defined,
- 18 U.S.C. 21 - Stolen or counterfeit nature of property for certain crimes defined,
- 18 U.S.C. 23.11 - The court of the United States defined,
- 18 U.S.C. 24 - Definitions relating to Federal health care offenses,
- 18 U.S.C. 25 - Use of minors in crimes of violence,
- 18 U.S.C. 26 - Definition of seaport,
- 18 U.S.C. 27 - Mortgage lending business defined.
What Are the Penalties for a Conviction?
If you are charged with misprision of a felony, you could face the following penalties if you are convicted:
- Fines of up to $250,000 and
- Up to three years in federal prison.
How Can You Defend These Charges?
A skilled federal criminal defense attorney can employ several defenses to combat charges under 18 U.S.C. 4—many of which have to do with directly disproving any of the four elements listed above. Common defenses include the following:
- You were unaware of the crime.
- You were unaware that the crime in question was a felony (the definition of a felony in this case is a crime punishable by more than one year in prison);
- You took no active steps to conceal the crime or
- You were acting under coercion or duress. If you can demonstrate that you didn't report the crime due to a credible threat of harm to you or your family, this may be a valid defense against the charge.
If you are under investigation or indicted, contact our law firm to review the case details and legal options. Eisner Gorin LLP has offices in Los Angeles, California.
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