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Rat Trap

Obscure charge "misprision of a felony" adds to feds' arsenal to fight "Stop Snitching"

Photo: Alex Fine, License: N/A

Alex Fine


Last March, federal law enforcers charged seven men in Maryland with conspiracy to murder in aid of racketeering based on an alleged scheme to set up a sale of fake drugs in order to rob and kill the buyer. When a grand jury indicted the men a few weeks later, the charges had been ratcheted down to a robbery conspiracy involving cocaine dealing. Fast-forward to Oct. 19, and the case has netted five guilty pleas, while two key defendants remain fugitives. Two of the men who pleaded guilty, Tomas Mendez and Jose Perez-Diaz, admitted to only one crime: 18 U.S.C. 4, better known as “misprision of a felony.”

This crime’s arcane-sounding name belies its widespread currency in Baltimore; simply put, Mendez and Perez-Diaz admitted to not snitching. Thus, on some of Baltimore’s meaner streets, where anti-snitching culture has run deep since the 2004 release of the DVD Stop Fucking Snitching Vol. 1, by One Love Films/Skinny Suge Records, Mendez and Perez-Diaz didn’t break the rules—they upheld them, and now they’re going to pay the price.

As their plea agreements state, Mendez and Perez-Diaz learned that one of their co-defendants was running a brothel in Laurel, but they “failed to notify an authority upon learning of the commission of this felony” and “actively concealed” their knowledge of it by “not informing investigators” of it after their arrests. It’s a far cry from a murder conspiracy, but they still face a maximum sentence of up to three years in federal prison, a fine, or both. (Perez-Diaz’s attorney, Jonathan Paul Van Hoven, declined to comment for this article; Mendez’ attorney, Paul Hazelhurst, did not respond to requests for comment by press time.)

A rarely prosecuted offense, misprision of a felony has been a federal crime since the U.S. Congress passed it in 1789, according to lawbrain.com. It’s rooted in 13th-century English common-law traditions compelling citizens to “raise the hue and cry” by notifying authorities about crime. Under nearly all states’ laws, including Maryland’s, misprision of a felony is not a crime; South Carolina is the only state that actively prosecutes it. Thus, if you conceal what you know about a felony from local or state authorities, you’re in the clear—but if you do that with the feds, they may come after you.

Mendez and Perez-Diaz face sentencing for misprision-of-a-felony charges as a result of a plea deal, but in two other Maryland cases—the only two in the state in the past three years found on the federal courts’ online records service, PACER—prosecutors sought misprision-of-a-felony convictions from the start.

A 2009 mortgage-fraud case ended up with the defendant, John Leonard III, pleading guilty to misprision of a felony and receiving a three-month prison term; he admitted to concealing from authorities what he knew about co-conspirators’ felonious conduct in the multi-million-dollar scheme. And a 2008 arson case against a husband and wife resulted in the husband, Ninsemon Alain Die, pleading guilty to misprision of a felony and receiving 36 months on probation. Though Die had learned that his wife, who remains a fugitive, set the fire on purpose, he deliberately concealed that fact from the first responders at the scene and then proceeded not to report the arson to appropriate federal authorities.

A fourth Maryland case in which misprision of a felony enters the picture arose due to the 2007 murder of Carl Stanley Lackl, who was slain in a plot by PDL Bloods gang members to prevent him from testifying at a state murder trial. Numerous people were convicted in the case, including Michael Pearson, whose girlfriend, Tammy Graham, ended up pleading guilty to misprision of a felony.

Graham, according to U.S. Attorney’s Office press releases about the case, had driven Pearson around as he arranged the murder on the day it happened, but she was not at that time aware of the plot. She learned about Lackl’s murder in the ensuing news coverage and, as Pearson asked her to do, lied to investigators when asked about her knowledge of the crime. As time passed, she never divulged what she knew to authorities. In 2009, Graham was sentenced to time served.

When asked about the use of the misprision-of-a-felony statute by the Maryland U.S. Attorney’s Office, spokeswoman Marcia Murphy wrote in an e-mail that “we don’t generally discuss our charging decisions.” But U.S. Attorney Rod Rosenstein e-mails comments that shed light on which circumstances meet the charging threshold.

“A limitation of 18 U.S.C. 4 that might not be obvious from reading it,” Rosenstein writes, “is that the term ‘conceal’ is construed to require proof that the defendant took some affirmative step to cover up the crime, as opposed to just doing nothing about it. We need to prove that the person (1) knew there was a felony; (2) concealed it through some affirmative act; and (3) did not make it known to the authorities.

“When people give false information in a federal criminal investigation,” Rosenstein continues, “we often prosecute for false statements, perjury, or obstruction of justice. All carry longer sentences. If someone tells a lie to a federal agent, for example, we can prosecute under 18 USC 1001,” which is the general statute prohibiting fraud and false statements, “and we need to prove that the person made a false statement knowing that it was false.” In that case, as opposed to misprision of a felony, “we do not need to prove that the person knew a felony had been committed.”

Thus, for those who are hard-wired not to report what they know about crime, the guidelines are clear. The best way to stay neutral in the fight against crime is, first off, not to know anything about any felonies. If that’s unavoidable, make sure there’s no evidence that you know. And if that’s unavoidable, remember not to conceal what you know from federal authorities, or you could end up being charged with one of the more obscure and rarely charged crimes on the books.

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