SHOULD MISPRISION OF A FELONY BE CONSIDERED A CRIME INVOLVING MORAL TURPITUDE?

• Author: Klein, Elyssa

INTRODUCTION

Misprision of a felony criminalizes having knowledge of a felony and concealing it. Currently there is a split between the Board of Immigration Appeals ("BIA") and the federal circuit courts, and between the circuits themselves, as to whether the crime involves moral turpitude. (1) While there are relatively few convictions for misprision of a felony, (2) it is important to examine this circuit split because it demonstrates the current lack of uniformity in our immigration system.

To analyze this split, this note first summarizes the history of misprision of a felony and the interpretation of its elements in case law. Part I discusses the definition of moral turpitude in immigration law and current approaches to determining whether a crime involves moral turpitude. Part II discusses the BIA's and Fifth, Ninth and Eleventh Circuits' decisions regarding whether misprision is a crime involving moral turpitude ("CIMT"), including the latest BIA decision, which came down in February 2018. Part III discusses common divisions between the two camps, including: (1) whether fraud can be read into the statute; (2) whether misprision has the requisite degree of scienter to be a CIMT; and (3) whether an "absurd result" result exists when misprision of a felony is a CIMT, but the underlying felony is not.

Ultimately, like accessory, misprision of a felony should not be considered a CIMT when the underlying felony is not. While deportation is not considered to be part of criminal sentencing, in practice it is an added punishment. To have a noncitizen be deported for misprision when the perpetrator of the underlying felony is not is fundamentally unfair and should not be tolerated in our immigration system.

1. BACKGROUND LAW

   1. Misprision of a Felony

      Misprision of a felony is a crime that has its roots in English common law. (3) Sir William Staunford in 1557 defined the crime as "when anyone learns or knows that another has committed treason or felony, and he does not choose to denounce him to the King or to his Council." (4) As the State was not actively involved in policing its citizens at the time, the individual was charged with an affirmative duty to report criminal activity to the authorities. (5) If a citizen witnessed a felony, a mortal wounding, or found a corpse and did not report such incidents to the State, he had run afoul of his duty to raise "the 'hue and cry"' that a crime was committed. (6) Mere knowledge of the criminal behavior was enough to secure a conviction for common law misprision of a felony. (7) Only a partial disclosure of the facts of a criminal offense would also result in a conviction. (8)

      Privilege was the only defense to common law misprision, such as attorney-client privilege and physician-patient privilege. (9) However, privilege would not apply when the accused gave misinformation to the authorities "because lying was considered an affirmative act of concealment." (10) By the mid-1800s in England, there were so few misprision prosecutions that the crime was considered to be obsolete, and it was eventually repealed in 1967. (11)

      While prosecutions of misprision waned in England, (12) the first United States Congress codified the crime in 1790. (13) Federal misprision of a felony is currently defined as:

      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. (14) Federal misprision of a felony is a vestige of this common law "duty to raise the hue and cry." (15) To ignore this affirmative duty to report remains "a badge of irresponsible citizenship." (16) Unlike the common law crime, knowledge that criminal activity has occurred does not constitute misprision of a felony. (17) To be convicted, the accused must have: "(1) knowledge that a felony was committed; (2) fail[ed] to notify the authorities of the felony; and (3) [took] an affirmative step to conceal the felony." (18)

      In their opinions on whether misprision is a CIMT, the Fifth, Ninth, and Eleventh Circuits focus most of their analysis on the affirmative concealment element of the offense. (19) Affirmative concealment constitutes hiding tangible or intangible evidence or providing misinformation to another regarding the crime. (20)

      Hiding tangible evidence, such as a car implicated in the crime, constitutes affirmative concealment. (21) In United States v. Brantley, the defendant was in the car with her boyfriend when he shot two police officers during a traffic stop. (22) The boyfriend fled on foot as she sped away in her car. (23) The defendant hid the car after discussing it with her boyfriend on the phone and by text message. (24) The act of hiding the car is the "affirmative act" of concealing tangible evidence. (25)

      Concealing the ongoing actions of the principal perpetrators of the underlying felony themselves also constitutes affirmative concealment. (26) In United States v. Gravitt, the defendant drove the bank robbers, with his wife, baby, and boat in tow as camouflage, to retrieve clothing, guns, and money. (27) As the use of his wife, baby, and boat was meant to conceal the bank robbers from detection, the court held that the defendant's actions constituted affirmative concealment. (28)

      Hiding illicit financial transactions through "creative accounting" is affirmative concealment of intangible evidence. (29) In U.S. v. White Eagle, the defendant covered up a scheme to defraud a tribal credit program by arranging for the principal offender's husband to payoff outstanding loans implicated in the crime to throw off investigators. (30) Making false entries in financial accounts and sending false statements to the Federal Reserve to cover up financial crimes also constitutes active concealment. (31)

      For affirmative concealment, misinformation is knowingly providing another with false information to conceal a felony. (32) In United States v. Hodges, the defendant lied to an FBI agent stating that he did not know how to contact the principal offender, who kidnapped a child, and he had not seen the child-victim when he had in fact met the principal offender with the victim earlier that month. (33) The court held that providing "an untruthful statement to authorities is a sufficient act of concealment," while also acknowledging that there is no obligation to report a crime. (34)

      Yet, not providing a full account of a crime does not constitute active concealment. (35) In United States v. Johnson, the defendant failed to disclose to a federal agent that two of his acquaintances were engaged in attempted export of arms and ammunitions. (36) The court held that this was not affirmative concealment because he merely failed to report a felony and a "partial disclosure d[oes] not result in any greater concealment of the crime" than if the defendant said nothing at all. (37)

      Misprision does not require active concealment of the underlying felony from law enforcement. (38) An investigation or adjudication of the underlying felony is not an element of misprision. (39)

      Convictions under misprision also encompass conduct in which the accused's relationship to the principal offender was only that of a friend or family member, and not a co-conspirator or an accessory. (40) In United States v. Adams, the defendant lived in a house that her boyfriend paid for with drug proceeds. (41) The title to the house was eventually transferred to the defendant. (42) After the title transfer, the defendant used profits from illicit activities to pay off the mortgage on the house. (43) The mortgage payments constituted affirmative concealment of her boyfriend's involvement in illegal narcotics distribution and racketeering. (44) She knew the money came from illicit activities and did not report it to the authorities. (45) To the court, living in the house purchased with the proceeds of illegal activity and using such funds to continue making mortgage payments was enough to sustain her plea to misprision of a felony. (46) In United States v. Pittman, (41) the defendant was convicted of misprision for concealing her husband's participation in a bank robbery by giving misinformation to the authorities. (48)

      As the BIA, and the Fifth, Ninth, and Eleventh Circuits reference the history of misprision in the U.S. and case law addressing affirmative concealment in their opinions, (49) this information is integral to understanding the split between these appellate bodies.

   2. Crime Involving Moral Turpitude

      The second step to understanding why there is a split between the BIA and the Circuits and within the Circuits themselves is to examine the evolution of CIMT jurisprudence. A noncitizen who is convicted or admits to a crime involving moral turpitude may be deported or excluded from the United States. (50) The term "crime involving moral turpitude" first appeared in the immigration context in 1891. (51) Despite the grave consequences for immigrants convicted of a CIMT, (52) Congress has not provided a definition of "a crime of moral turpitude." (53) Rather, Congress, in its silence, has left the term to be defined by "future administrative and judicial interpretation." (54)

      1. Definition of Moral Turpitude

         The current definition of moral turpitude is derived from BIA and U.S. Attorney General decisions. (55) The courts give deference to this interpretation of moral turpitude, but they have the authority to review de novo whether specific crimes are CIMTs. (56) The BIA defines moral turpitude as "conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general." (57) Crimes that are malum in se or "per se morally reprehensible and intrinsically wrong" rather than malum...