New York Federal Misprision of a Felony

The crime of Misprision of a Felony, in violation of 18 U.S.C. § 4, occurs when an individual is aware that another has committed a felony offense and both fails to notify the authorities of its occurrence and affirmatively takes steps to aid in its concealment. As the United States Supreme Court has recognized, the crime originates from the English common law’s recognition of one’s “duty to raise the hue and cry and report felonies to the authorities,” and has further described the offense as “the concealment of a felony which a man knows, but never assented to [become] either principal or accessory.” Branzburg v. Hayes, 408 U.S. 665, 696 (1972). Importantly, while it is rare that a defendant is initially charged with this crime, the best criminal defense attorneys in New York may be able to convince a prosecutor that it be utilized in lieu of the underlying substantive offense for the purposes of a guilty plea because it represents a significant charge-down – and may be the difference between the defendant serving a lengthy term of imprisonment and none at all.

Specifically, pursuant to 18 U.S.C. § 4, anyone who has knowledge of the commission of a felony and conceals it or does not as soon as possible make it known to some judge or other authority of the United States, shall be fined or imprisoned not more than three years. Courts have held that prosecutors must establish four factors in order to demonstrate that a defendant is guilty of this crime: 1) the principal committed and completed the alleged felony; 2) the defendant had full knowledge of that fact; 3) the defendant failed to notify the authorities; and 4) the defendant took steps to conceal the crime. United States v. Cefalu, 85 F.3d 964, 969 (2d Cir. 1996) citing United States v. Ciambrone, 750 F.2d 1416, 1417 (9th Cir. 1984); United States v. Baez, 732 F.2d 780, 782 (10th Cir. 1984).

As noted, the significance of this crime for an experienced criminal defense attorney is not merely in defending against its charge in a federal indictment or complaint, but conversely, convincing a prosecutor that a defendant be charged with Misprision of a Felony instead of the underlying substantive crime, i.e., bank fraud, extortion or narcotics distribution. This is because its use results in a significantly lesser sentence upon conviction than the underlying crime – up to nine offense levels lower pursuant to the United States Sentencing Guidelines – which may represent several less years in prison. Further, this offense carries no mandatory minimum sentence and a maximum term of incarceration of only three years – significantly less than most federal crimes.

The usefulness of this charge as a tool for a skilled criminal defense attorney is easily demonstrated by a recent case handled by our firm, wherein we represented an individual charged with a violent crime: Collecting Extensions of Credit by Extortionate Means, in violation of 18 U.S.C. § 894. If convicted after trial, this individual would have faced sentencing guidelines of at least 33 to 41 months imprisonment. A year of investigating the prosecution’s star cooperating witness, however, revealed that he had committed perjury and defrauded banks on multiple occasions – and had misled the government about these crimes during his proffer sessions with them. Faced with the possibility that their star witness would be left without a scintilla of credibility after his cross-examination at trial, the government agreed to offer our client the opportunity to plead guilty to Misprision of a Felony, with an accompanying sentencing guidelines range of four to ten months imprisonment. Our client accepted and was sentenced to a term of probation with no period of incarceration.

Hiring an experienced New York Federal crimes attorney to defend you in any federal prosecution is crucial and will ensure that every viable defense is explored and utilized on your behalf. Lawyers at the Law Offices of Jeffrey Lichtman have successfully handled countless federal cases, exploiting holes in the prosecution’s evidence to achieve the best possible result for our clients. Contact us today at (212) 581-1001 for a free consultation.

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