Misprision of a felony consists of concealing a felony.[157]  A defendant convicted of misprision has unlawfully covered up a crime.  His or her conduct is separate from the underlying felony s/he concealed.[158]

                Misprision of a felony might be considered an aggravated felony under an obstruction of justice theory or under a drug trafficking theory if the underlying offense is a drug trafficking offense.  Under current law, however, it does not fall within any aggravated felony category.  It is possible to argue that a conviction for misprision of a felony is not an aggravated felony, using the “if it’s not listed, it’s not an aggravated felony” argument. 

 

[157] See 18 U.S.C. § 4.

[158] Castaneda De Esper v. INS, 557 F.2d 79 (6th Cir. 1977) (misprision of felony of conspiracy to possess narcotics was not a crime relating to narcotics); Matter of Velasco, 16 I. & N. Dec. 281 (BIA 1977) (adopting Castaneda De Esper as nationwide precedent); Matter of SC, 3 I. & N. Dec. 350, 353 (BIA 1949) (conviction of common-law misprision of a felony, for failure to prevent the commission of an offense, does not involve moral turpitude, since an evil and depraved intent is not essential to support a conviction, and mere knowledge of the offense being committed and neglect to employ lawful means available to prevent its commission is sufficient to support a conviction).

Fifth Circuit

INCHOATE OFFENSES - MISPRISION OF A FELONY - MISPRISION IS A SEPARATE OFFENSE, DISTINCT FROM THE UNDERLYING FELONY, UNLIKE AIDING AND ABETTING
Patel v. Mukasey, 526 F.3d 800, ___ (5th Cir. Apr. 29, 2008) ("Moreover, unlike the federal aiding and abetting statute involved in James, the federal misprision of a felony statute defines a separate offense, distinct from the underlying felony. See James, 464 F.3d at 510 n. 24 (citing Londono-Gomez v. INS, 699 F.2d 475, 476 (9th Cir.1983)). Thus, the fact that Patel was specifically indicted for misprision of a bank fraud is irrelevant to our inquiry of whether the statutory definition of the offense itself necessarily entails fraud or deceit.").

INCHOATE OFFENSES - MISPRISION OF A FELONY - ELEMENTS OF FEDERAL OFFENSE
Patel v. Mukasey, 526 F.3d 800, ___ (5th Cir. Apr. 29, 2008) (the elements of the federal offense of misprision of a felony, in violation of 18 U.S.C. 4, were described as "(1) knowledge that a felony was committed; (2) failure to notify the authorities of the felony; and (3) an affirmative step to conceal the felony. See United States v. Adams, 961 F.2d 505, 508 (5th Cir.1992). "[U]nder the misprision statute, the defendant must commit an affirmative act to prevent discovery of the earlier felony." Id. "Mere failure to make known does not suffice." Id. at 508-09 (citation omitted). It is irrelevant whether at the time of concealment the Government had knowledge of either the crime or the identity of the perpetrator. Lancey v. United States, 356 F.2d 407, 409 (9th Cir.1966).").

INCHOATE OFFENSES - MISPRISION OF A FELONY - MISPRISION IS A SEPARATE OFFENSE, DISTINCT FROM THE UNDERLYING FELONY, UNLIKE AIDING AND ABETTING
Patel v. Mukasey, 526 F.3d 800, ___ (5th Cir. Apr. 29, 2008) ("Moreover, unlike the federal aiding and abetting statute involved in James, the federal misprision of a felony statute defines a separate offense, distinct from the underlying felony. See James, 464 F.3d at 510 n. 24 (citing Londono-Gomez v. INS, 699 F.2d 475, 476 (9th Cir.1983)). Thus, the fact that Patel was specifically indicted for misprision of a bank fraud is irrelevant to our inquiry of whether the statutory definition of the offense itself necessarily entails fraud or deceit.").

INCHOATE OFFENSES - MISPRISION OF A FELONY - ELEMENTS OF FEDERAL OFFENSE
Patel v. Mukasey, 526 F.3d 800, ___ (5th Cir. Apr. 29, 2008) (the elements of the federal offense of misprision of a felony, in violation of 18 U.S.C. 4, were described as "(1) knowledge that a felony was committed; (2) failure to notify the authorities of the felony; and (3) an affirmative step to conceal the felony. See United States v. Adams, 961 F.2d 505, 508 (5th Cir.1992). "[U]nder the misprision statute, the defendant must commit an affirmative act to prevent discovery of the earlier felony." Id. "Mere failure to make known does not suffice." Id. at 508-09 (citation omitted). It is irrelevant whether at the time of concealment the Government had knowledge of either the crime or the identity of the perpetrator. Lancey v. United States, 356 F.2d 407, 409 (9th Cir.1966).").

AGGRAVATED FELONY - FRAUD - MISPRISON OF A FELONY
Patel v. Mukasey, 526 F.3d 800 (5th Cir. Apr. 29, 2008) (federal conviction for violation of 8 U.S.C. 4, misprision of a felony was an aggravated felony under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i) because it necessarily entails deceit; in this particular case the loss to the victim, which exceeded $10,000, was not disputed by the parties).

AGGRAVATED FELONY - MISPRISON OF A FELONY - MISPRISON OF A FELONY
Patel v. Mukasey, 526 F.3d 800 (5th Cir. Apr. 29, 2008) (federal conviction for violation of 8 U.S.C. 4, misprision of a felony was an aggravated felony under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i) because it necessarily entails deceit and in the particular case the loss to the victim, which exceeded $10,000, was not disputed by the parties).