Misprision of a felony is a federal charge for concealing a felony that was actually completed and failing to make it known to federal authority as soon as possible. Under 18 U.S.C. § 4, knowing about a crime and staying silent is not enough by itself. The government must also identify an affirmative act designed to hide the completed federal felony. Ninth Circuit Model Criminal Jury Instruction 24.1 separates that concealment act from the failure to notify.
What must the government prove?
The accusation depends on an actual underlying offense and on what this person knew and did. The Ninth Circuit’s instruction 24.1 frames these as separate questions the government must prove beyond a reasonable doubt:
| Question in the case record | Why it matters |
|---|---|
| Was a federal felony completed? | The government must identify and prove the underlying crime, not just show suspicion that someone did something wrong. In United States v. Sullivan, the Ninth Circuit said the principal must have committed and completed the alleged felony. |
| What facts did the accused know? | United States v. Olson requires knowledge of the conduct satisfying the underlying offense’s essential elements. It also requires knowledge that the conduct was serious enough to be punishable by more than one year in prison. The accused need not know the precise possible term. |
| What act allegedly concealed it? | Instruction 24.1 requires an affirmative act designed to conceal that the felony occurred. A failure to report, without that further act, does not establish § 4 misprision. The charging papers and evidence should identify the alleged act rather than rely on the label “cover-up.” |
| Was it made known to federal authority, and when? | Section 4 separately addresses failure to disclose the felony as soon as possible to a federal judge or other federal civil or military authority. The timing and any actual communication are factual questions distinct from concealment. |
The underlying crime must be one a federal court could prosecute. The accused, however, does not have to know that the crime belongs in federal rather than state court. Olson distinguishes knowledge that the conduct was a felony from knowledge of the federal forum. That difference matters when comparing what someone knew at the time with what prosecutors learned later.
Is misprision a misdemeanor, and what is the penalty?
No. Section 4 allows a fine, imprisonment of not more than three years, or both. Because its authorized maximum is more than one year but less than five years, 18 U.S.C. § 3559(a)(5) classifies this standalone federal offense as a Class E felony. Three years is a statutory ceiling, not the sentence a person will receive. It also is not the penalty for the separate underlying felony or any other charged count.
Which papers help answer the charge?
Keep the complete indictment or complaint, including the § 4 count and the alleged underlying offense. Preserve the original messages, documents, dates and other records said to show what you knew, the particular act prosecutors call concealment, and any communication with an authority. A timeline can help counsel compare when the other crime was allegedly completed with the claimed concealment and any notice. Do not alter records or assume that a description in a charging paper proves the facts.
Whether a person should make a statement, respond to a request or raise a self-incrimination concern requires case-specific advice; this page does not decide those questions. The Law Offices of David S. Chesley can discuss the actual federal charge and available records with you at (800) 755-5174.