CA1: does misprisionment of felony require an affirmative act?

US v. Caraballo-Rodriguez, No. 03-1795. A ex-cop plead guilty to “misprision of felony, 18 U.S.C. § 4” pursuant to a (pretty advantageous) plea agreement. Now he wants to withdraw it. Not gonna happen. The First is going to bend as far as the government wants to preserve the plea agreement, regardless of the fact that it appears to be endorsing (on plain error review) a convict without any real overt act.  This cop was somehow involved in drug trafficking.

Just in case you want to know what the statute 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.

The prosecutor articulated it as such:

In the instant case, the offense of conviction, misprision of felony, requires proof that: "1) the principal committed and completed the alleged felony; 2) defendant had full knowledge of that fact; 3) defendant failed to notify the authorities; and 4) defendant took steps to conceal the crime."

In this case, the government argues that because the defendant reported the crime that he had some involvement in, but did not fully explain his involvement in it, he “misprisoned” the felony. So, the fact that he was partially truthful is, in fact the “affirmative act” that the constitution and common law require. See Marbury v. Brooks, 20 U.S. (7 Wheat.) 556, 575-76 (1822) (“It may be the duty of a citizen to accuse every offender, and to proclaim every offense which comes to his knowledge; but the law which would punish him in every case for not performing this duty is too harsh for man.”). But the First holds that because no specific precedent binds the First (though the “affirmative act” rule is the majority rule), there wasn’t really any plain error. So, the court feels free to reach for any definition of “conceal.”

 Boudin concurs, essentially saying that the defendant really should just acknowledge that he agreed to shoe-horn his conduct into a much more preferential sentence.

 Torruella dissents. He points out that the government may be trying to introduce things from one case into another case via the appeal. He then concludes that the acceptance of the plea was plain error, because, in fact, the law really is clear on the affirmative act.