Criminal Law - First Circuit allows guilty plea for misprision to stand under plain error review.

• Author: Hurd, John V.

Criminal Law--First Circuit Allows Guilty Plea for Misprision to Stand Under Plain Error Review--United States v. Caraballo-Rodriguez, 480 F.3d 62 (1st Cir. 2007), cert. denied, 128 S. Ct. 489 (2007)

The federal misprision statute requires that a person with knowledge of a felony report such knowledge to the authorities. (1) Generally, the prosecution must prove that the defendant took some affirmative step to conceal the crime from authorities. (2) In United States v. Caraballo-Rodriguez, (3) the Court of Appeals for the First Circuit considered whether the defendant's conviction for misprision could be sustained under plain error review absent proof of an affirmative act of concealment. (4) The court held that there was no act requirement and thus, no plain error at trial. (5)

Osvaldo Caraballo-Rodriguez was a police officer for the Puerto Rico Police Department. (6) In May 2001, another officer invited him to participate in a cocaine smuggling conspiracy. (7) Although he agreed to participate, before the commission of the crime, he anonymously called the Drug Enforcement Administration (DEA) to alert them to the conspiracy. (8) Caraballo-Rodriguez refused to furnish the names of his co-conspirators. (9) He then participated in the crime. (10) Two weeks after the felony, Caraballo-Rodriguez again contacted the DEA and disclosed the details of the crime including his name and the names of his co-conspirators. (11)

In August 2001, Caraballo-Rodriguez and fifteen others were arrested and indicted. (12) With the assistance of an attorney, he negotiated a plea with the government whereby he agreed to plead guilty to a lesser charge--misprision--in exchange for the government agreeing to drop all other charges against him. (13) This plea reduced his sentence from a minimum of more than fifteen years to a maximum of three years. (14)

In December 2002, Osvaldo Caraballo-Rodriguez pled guilty to misprision, acknowledging that he was entering the plea freely because he was guilty of the offense. (15) The court accepted his plea, and, in April of 2003, sentenced him to time served. (16) Subsequently, in May of 2003, Caraballo-Rodriguez appealed his conviction arguing that the facts did not support a conviction for misprision because he took no affirmative step to conceal the crime. (17) He argued that Rule 11 of the Federal Rules of Criminal Procedure requires there to be a factual basis for any plea accepted by the court. (18) The court determined that no precedent bound the trial court to require proof of an affirmative act of concealment, and therefore, there was no plain error that required a reversal of the conviction. (19)

Misprision originated in sixteenth century England, although its common law roots can be traced back even further. (20) During the sixteenth century there were no formal police forces to pursue and apprehend criminals, so the burden was on citizens to report the felonies they witnessed and to pursue the perpetrators. (21) At common law, a person was guilty of misprision for simply failing to report a crime. (22) Additionally, partial disclosure was not a defense to misprision; a person was required to fully disclose all known facts about the felony. (23) However, by the end of the nineteenth century, there had been so few prosecutions for misprision that legal scholars questioned its continued existence. (24)

In the United States, misprision has been a federal offense since 1790. (25) Congress has modified the statutory language, but it remains materially the same. (26) Legal scholars dispute whether the current federal misprision statute requires an affirmative act of concealment or whether a person can be guilty by simply failing to report a known felony. (27) Further, courts and commentators argue that a partial but truthful disclosure may not amount to concealment. (28)

The federal misprision caselaw strongly suggests a construction of the statute requiring an affirmative act. (29) Courts construe federal laws according to the language of the statute. (30) Accordingly, the first case to interpret the "conceals and" language of the federal statute to require an affirmative act was United States v. Farrar. (31) Since then, every circuit court interpreting the misprision statute has required proof of some affirmative act of concealment. (32) The Supreme Court discussed the federal misprision statute in small number of cases; however, as of yet, the Court has not ruled on the affirmative act requirement. (33)

In United States v. Caraballo, the court considered whether there was a plain error at trial that required a reversal of Osvaldo Caraballo-Rodriguez's conviction for misprision. (34) The court rejected the defendant's argument that there was plain error because the prosecution failed to show an affirmative act of concealment. (35) The court noted that other circuits have required an affirmative act, but it noted misprision's common law origin supports its position that failure to disclose alone puts a person within the purview of the statute. (36) Ultimately, the court chose not to make a judgment on the act requirement, holding that there was no binding precedent either way, and therefore, the trial court was free to accept the guilty plea on the facts. (37) Thus, the court determined that there was no plain error and affirmed Caraballo-Rodriguez's conviction. (38)

The majority incorrectly held that there was no plain error at trial. (39) Under Rule 11 of the Federal Rules of Criminal Procedure, a court must verify that there is a factual basis for a plea before entering a guilty verdict. (40) Because Caraballo-Rodriguez committed no affirmative act of concealment, the court erroneously held that there was a factual basis. (41)

The majority's holding departed significantly from the opinions of numerous legal scholars and circuit judges on the affirmative act requirement. (42) The majority improperly supported its assertions using the common-law interpretation of misprision that punishes for simply failing to raise "hue and cry." (43) Here, the...