INTRODUCTIONOn January 5, 2017, the Board of Immigration Appeals (BIA) issued Amicus Invitation No. 17-01-05 [PDF version], asking for briefs on the issue of whether the federal offense of misprision of a felony under 18 U.S.C. 4 is categorically a crime involving moral turpitude (CIMT) under the Immigration and Nationality Act (INA) and on the collateral issue of the possible retroactive effect of a ruling. Briefs are due by February 6, 2017.

Thus, misprision of a felony can fundamentally be described as the crime of concealing and failing to report a felony. The four elements necessary to sustain a conviction for misprision of a felony pursuant to 18 U.S.C. § 4 are:(1) the principal committed and completed the felony alleged;(2) the defendant had knowledge of the fact;(3) the defendant failed to notify the authorities; and(4) the defendant took affirmative steps to conceal the crime of the principal. United States v. Stuard, 566 F.2d 1, 1-2 (6th Cir. 1977).The requirement that the defendant also must take “affirmative steps to conceal the crime” is the key element under 18 U.S.C. § 4.

and all state attorneys general.On October 30, 2019, two of the hackers – Brandon Charles Glover (age 26, of Florida) and Vasile Mereacre (age 23, of Toronto) – pled guilty to conspiracy to violate the Computer Fraud and Abuse Act in connection with the 2016 incident. Glover and Mereacre admitted that they had hacked into Uber’s AWS S3 bucket, stole the database backup containing millions of personal records and extorted Uber into paying $100,000 in exchange for their execution of the false nondisclosure agreement. According to the U.S. Attorney’s Office, they also admitted that they hacked and attempted to extort another company after Uber paid them.The Obstruction and Misprision ChargesSullivan was not charged with simply failing to notify the government of a breach. Such a failure is not a federal crime. Instead, the jury found Sullivan guilty of two crimes: Obstruction of Proceedings before a Department or Agency of the United States (18 U.S.C. § 1505) and Misprision of a Felony (18 U.S.C. § 4). As relevant here, Section 1505 makes it a crime to corruptly influence, obstruct or impede “the due and proper administration of the law” (or to “endeavor” to do so) in any proceeding pending before any U.S. government department or agency. Section 4 proscribes the concealment of a felony by those who have knowledge of it and do “not as soon as possible make known the same to some judge or other person in civil or military authority under the United States.”On the obstruction charge, the jury found Sullivan guilty of obstructing the FTC investigation that started before and was still active during the 2016 incident. Sullivan’s conviction is inextricably tied to the FTC’s active investigation of Uber at the time of the 2016 incident and the key role that Sullivan was playing in that investigation. Without the active FTC investigation, there would have been no proceeding to obstruct.On the misprision (i.e., concealment) charge, the jury found Sullivan guilty of affirmatively acting to

Some states allow delay of breach disclosure if criminal investigations are underway.Despite the federal “misprision of a felony” law and assorted similar state laws, private companies and private citizens have traditionally not been obliged to report crimes to law enforcement. “[A] person who witnesses a crime does not violate 18 U.S.C. § 4 if he simply remains silent.” United States v. Ciambrone, 750 F.2d 1416, 1418 (9th Cir. 1984).

However, there is more than sufficient evidence that Trump family members and campaign officials violated the law when they failed to report illegal contacts with Russians offering to help the Trump campaign and hurt the Hillary Clinton campaign—in particular, the Trump Tower meeting on June 9, 2016 when Donald Trump, Jr., the president’s son-in-law Jared Kusher, and Trump’s campaign manager Paul Manafort met with Russians trying to secure “dirt” on Clinton as promised by the Russian operatives.Misprision of a FelonyThe law these three individuals violated is one of the oldest criminal laws in the United States. Enacted in 1790, misprision of a felony is found in 18 U.S.C. § 4 and is 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.”Trump Jr., Kusher, and Manafort not only knew the Russians who orchestrated the Trump Tower meeting were violating the law by trying to interfere in a U.S. election, they failed to report it to the FBI or any other law enforcement agency—and, in fact, tried to conceal the crime by lying about its purpose.

Our Privacy, Cyber & Data Strategy and White Collar, Government & Internal Investigations teams offer key takeaways that companies should consider in the wake of the Justice Department’s first prosecution of a corporate executive for his response to a data security incident.A preexisting, ongoing government investigation may create a duty to disclose new incidentsBug bounty programs and ransom payment procedures should be revamped to avoid the appearance of a cover-upIncident response procedures should ensure that decisions about whether and when to disclose are made by fully informed counselUber’s former chief security officer (CSO), Joe Sullivan, was found guilty on October 5, 2022 by a jury in federal court on charges of obstruction of justice (18 U.S.C. Section 1505) and misprision of a felony (18 U.S.C. Section 4) based on what the Justice Department called his “attempted cover-up of a 2016 hack of Uber.”In 2016, while the Federal Trade Commission (FTC) was investigating Uber for an earlier incident, Sullivan learned of a new incident that affected the Uber accounts of more than 57 million riders and drivers. The government alleged that, rather than disclose the 2016 incident to the FTC, the CSO took steps to hide the incident from the FTC, as well as from many of his colleagues at Uber, including its general counsel and outside attorneys. Most notably, he arranged a $100,000 payment to the hackers through Uber’s “bug bounty” program in exchange for the hackers signing a nondisclosure agreement (NDA) promising not to reveal the incident and falsely stating that they did not exfiltrate sensitive customer information.This case – which is the first time a company executive faced criminal prosecution over its response to a data incident – is troubling in that it blurs the line between “covering up

10 United States v. Noble, No. 6:18-03097-01 (W.D. Mo. 2018).11Skilling v. United States, 561 U.S. 358, 404-409 (2010) (discussing a vagueness challenge to the federal honest services fraud statute).12 In the 9th Circuit, where the Sullivan case is being prosecuted, a violation of 18 U.S.C. § 4 has the following elements: (1) that the principal committed and completed the felony alleged; (2) that the defendant had full knowledge of that fact; (3) that he failed to notify the authorities; and (4) that he took affirmative steps to conceal the crime of the principal. United States v. Olson, 856 F.3d 1216, 1220 (9th Cir. 2017).

This is not only shortsighted and irresponsible, it will result in the estate incurring greater liabilities in the long-run and can place the executor at high personal financial risk. In addition to felony charges for tax evasion under 26 U.S.C. § 7201, executors are at risk of additional prosecution – including charges under 18 U.S.C. § 4 which makes it a crime to have knowledge of the commission of a felony and to engage in an affirmative act of concealment. Although criminal prosecution is rare, particularly if the executor is unrelated to the decedent, civil penalties under 31 U.S.C. § 5321(a)(5) are very likely.

United States v. Caraballo-Rodriguez, 480 F.3d 62 (1st Cir. 2007)At great length, the First Circuit reviews the elements of a misprision of a felony offense, pursuant to 18 U.S.C. § 4. This case arose in the context of a defendant who avoided considerably more serious charges by entering a guilty plea to a misprision offense, and then challenged the sufficiency of the factual basis for the plea.

He instructed his lawyer to negotiate a plea deal that would have no “immigration consequences.” His lawyer negotiated a deal with the Government that allowed Kovacs to plead guilty misprision of a felony—a violation of 18 U.S.C. § 4. The attorney advised Kovacs that such a plea would have no impact on his immigration status because he had discussed Kovacs immigration concerns with the Government before prosecutors agreed to the misprision of a felony charge.