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Eighth Circuit: Misprision of Felony Conviction of Participant in Underlying Felony Violates Fifth Amendment

by Douglas Ankney

The U.S. Court of Appeals for the Eighth Circuit ruled that a defendant’s misprision of felony conviction for failing to report a felony in which the defendant was herself involved violates the Fifth Amendment privilege against self-incrimination.

Elsa Solis was convicted of conspiring to possess with intent to distribute methamphetamine, possession with intent to distribute methamphetamine, and misprision of a felony. On appeal, Solis argued, inter alia, that the district court erred by entering a misprision judgment against her in contravention of her Fifth Amendment privilege against self-incrimination. 

Because Solis presented her argument for the first time on appeal, the Court reviewed for plain error, which gives the Court discretion to reverse if the defendant shows: (1) an error, (2) that was plain, (3) affects substantial rights, and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Fast Horse, 747 F.3d 1040 (8th Cir. 2014). The Court observed that Solis’ indictment charged that she was a co-conspirator in the methamphetamine conspiracy and that she failed to alert the authorities about that very conspiracy in violation of the misprision statute. At trial, the Government argued to the jury, “[Solis] participated in the conspiracy. She possessed meth. She intended to distribute it, and then she concealed it.” 

The Court then examined the misprision statute, which provides that “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,” is guilty of misprision. 18 U.S.C. § 4. A conviction under the statute requires proof that the accused knew of the completion of a felony, failed to notify proper authorities of that fact, and took “affirmative steps to conceal” the felony. United States v. Holden, 368 F.3d 1032 (8th Cir. 2004). But, when the person who knows about the felony is also implicated in that same felony, “there are tensions between the Fifth Amendment privilege against self-incrimination and the statutory obligation to provide disclosure.” United States v. Caraballo-Rodriguez, 480 F.3d 62 (1st Cir. 2007). 

The Fifth Amendment privilege against self-incrimination guarantees that a witness will not be “compelled to give self-incriminating testimony,” and it forbids “officially coerced self accusation[s].” United States v. Washington, 431 U.S. 187 (1977). The privilege “not only extends to answers that would in themselves support a conviction ... but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime,” provided “the witness has reasonable cause to apprehend danger from a direct answer.” Hoffman v. United States, 341 U.S. 479 (1951). The Court declared, “Under Hoffman, therefore, it is plain that the government cannot use the misprision statute to require someone to report a crime—an essential element of misprision—where doing so reasonably could lead to the individual’s own prosecution. Accordingly, it was error to charge, and convict, Solis on the misprision count, and that error violated a substantial right: Solis’ Fifth Amendment right against self-incrimination.” 

The Court observed that both the Seventh and Ninth Circuits take the same position regarding this issue.

The Court concluded, “To allow Solis’ conviction for misprision to stand would cast doubt on both the fairness and the integrity of the judicial proceedings against her.” Accordingly, the Court exercised its discretion and reversed with instructions to vacate Solis’ conviction for misprision of a felony. See: United States v. Solis, 915 F.3d 1172 (8th Cir. 2019). 

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