F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v.

K A R E N B

. O L S O N , D efendant-Appellant. No. 15-30022

D.C. No. 3:13-cr-00093-TMB -1

OPI NI ON

A ppeal from the United States District Court

for the District of Alaska Timothy M. B urg ess, Chief J udg e, Presiding

Arg ued and Submitted Aug ust 4, 2016 A nchorag e, Alaska

F iled May

15, 2017

B efore: Ray

mond C. F isher, Richard A. Paez and Andrew D. Hurwitz
, Circuit J udg es.
Opinion by

J udg e F isher; Concurrence by

J udg e HurwitzU N I T E D S T A T E S V

. O L S O N 2

SUMMARY *

Crim inal Law

The panel affirmed the defendant’s conviction under 18 U.S.C. § 4 (misprision of felony ) for con cealing a

nd failing to notify authorities of her business par t n e r’s

su b m i s s ion of false statements to the United States Department of Ag riculture Rural Development P r og ram in connection with a federal g rant application.

The panel held that, to secure a conviction under § 4
, the
g overnment must prove not only that the defendant knew the principal eng ag ed in conduct that satisfi e s t he essential elements of the underly ing felony
, but also that the defendant knew the conduct was a felony ; that to establish the latter, the
g overnment must prove the defendant knew the offense was punishable by d eath or a term of imprisonment ex ceeding o ne y ear; and that sufficient evidence supports the jury ’s finding that the defen dant here knew the principal’s c rime was punishable by

more than a y ear in custody

. Concurring in p art and c o ncurring i n t he result, J udg e Hurwitz would leave to another day
, in a case in wh i c h it matters to the outcome, whether the g o vernment must prove in a § 4 prosecution that the defendant knew the underly ing offense was a felony

.

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. O L S O N 3

COUNSEL

Glenda K erry (ar g u ed), L a w Office of G lenda J

. Kerry
, Girdwood, Alaska, for Defendant-Appellant.

Retta-Rae Randall (arg

u e d )
, A s s i s t a

n t U n ited States Attorney
, United States Attorney ’s Office, Anch orag e, Alaska, for Plaintiff-Appellee.

OP INION

F I SHER, Circuit J udg e :

Karen Olson appeals her co n v i ction for misprision o f felony under 18 U.S.C. § 4. She w as convicted of concealing

a nd f a iling to notify authorities of her business partn e r’ s submission of fal s e s t atements to the United States Department of Ag riculture Rura l D evelopment Prog ram (USDA) in connection with a federal g rant application. She challeng es h er conviction, arg uing the g ove r n m ent failed to prove she knew the c o n d u ct she concealed constituted a felony

. W e address her a rg ument in two p arts. Fi r s t, we ag ree with Olson that, to secure a conviction under 18 U .S.C. § 4, the g overnment must p rove not only t h a t t he defendant knew the pr i n c i pal eng ag ed in c o n duct that satisfies the essential elements of the underly ing felony , but also that the defendant k

new the conduct was a f el o n y

. See F

loresFigueroa v. United States
, 556 U.S. 646, 652 (2009) (“[ C] ourts ordinarily read a phra s e in a criminal statute that introduces the elements of a c rime w ith the word ‘knowing ly ’

as apply in g t h at word to each element.”). Second, a pply ing that standard, we hold sufficient e v idence supports the jury ’sU N I T E D S T A T E S V

. O L S O N 4

finding that Olson had the r equisite know l e d ge h e re. W e therefore affirm. 1

BACK G ROUND

The U SDA awarded a g rant to Robert W ells t o o p e n a milk processing facility

. The terms of the g rant provided that certain e quipment w as to be purchased wholly o r in part with
g rant f unds, a nd that the U SDA w o u l d h old a first lien position on a

ny equipment p u r c hased with g r ant money

. Althoug h the g rant was in W ells’ name, he had an informal “handshake” partnership with Olson, a former Alaska

ex e c u t i v e director of the USDA F arm Service A g e ncy w ho

w r o t e W ells’ g rant application. W e lls described her as t h e “brains” behind the g rant, and the i r informal partnership entitled her to 50 percent o f t h e profits from the milk processing facility

.

Around the same time, K y l e Beus received a separate USDA g rant to esta b lish an ice c ream and cheese manufacturing facility

. The paperwor k f or both W ells’ a

nd B eus’ g rant applications w arned that any one who made false, fictitious or fraudulent statements c ould b e fined o r imprisoned for up to five y ears.

W e lls, B e us and Olson ag reed to locate their two projects
at the same facility

. Unbeknownst to W ells and Olson, B eus in s tructed h is contractor, Nether I ndustries, to inflate the value of certain dairy processing equipment – in c l u d ing a clean-in-place (CI P) sy stem a nd a g ly col chilling sy stem – on papers submitted to the USDA for reimbursement. B eus also

1 W e rej ect Olso n ’ s rem ain i n g ch allen g es in an u n p u b lish e d

m em o ran d u m

d isp o s itio n

f iled co n cu rren tly

w ith th is o p in io n

.U N I T E D S T A T E S V

. O L S O N 5

submitted invoices to Nether, alleg edly for project ex penses,

so he could p ersonally receive a p o rt ion of the g rant money the USDA disbursed.

A y ear into the enterprise, B eus told W ells and Olson he had leased certain “technolog ica l l y o bsolete” pieces o f equipment r ather than p urchase n ew equipment as ag reed in the orig i n a l grant application, including a “really cheap old
g ly col unit” and an “incomplete clean-in-place sy stem.” A s to some of t h i s equipment, Olson informed the USDA there had been a chang e of plans that called for “leasing instead o f outrig ht purchasing some of the orig inal smaller equipment.” She did not do so, h owever, with respect to t h e CI P sy stem and g ly col cooling sy ste m

. T h e attached “Proposed Money Grant Ex penditure” included a CI P sy stem li sted at $35,000

an d a g ly c ol c ooling sy stem listed at $50,000 when, in fact, those sy stems had been leased rather than purchased.

After the USDA disbursed the g rant funds, Olson filed a final report with the d epartment. I t included a “F inal L ist of Ex penditures by Categ ory and Completion” that o nce ag ain falsely listed the purchase of a $35,000 C I P sy stem and a $50,000 g ly col cooling sy stem.

Olson later became aw a r e that B eus had been misappropriating g rant funds by submitting false invoices to Nether I ndustries a

nd receiving p ay

ments – which O lson described as “kickbacks” – in return. Olson also discovered B eus had i mproperly used g rant funds to make a $71,000 personal investment in a milk jug manufacturer. An entry in her day planner around this time reveals that she knew B eus’ actions were improper. She wrote: “B eg an full-time work on financials/straig htening out Ky le’s mess. L earning o f questionable deals – Nether

– Ky le spent $190,000 of ourU N I T E D S T A T E S V

. O L S O N 6

g rant o n o t h e rs, so Nether way over budg et. Also, Ky le misused our [ ] a dvance $ as his own stock pu rc h a s e s

– !” Olson told the project ’ s o f fice assistant she “ could send [ Be u s ’ ] a ss to jail.” She w rote members of her board t h at

“ [ t ] he revelations o f the past week h ave cry stalliz ed f o r m e that [ B eus’ ag reement t o c o -locate the p rojects] was simply

a way to divert our g rant money into a g randiose plan that has
not worked,” and that B eus “has put the entire dairy industry
at r isk for a

n e ver-widening investig ation closing off a ll loan sources and public g oodwill.”

Olson w as convicted a fter a jury trial of misprision o f felony under 18 U.S.C. § 4. Her conviction was b ased on her knowledg e that B e u s, the p rincipal, submitted false
statements to the U S D A in f urtherance of his scheme to misappropriate g rant funds in violation of 18 U.S.C

. § 1014 – a felony under federal law. Olson appeals.

STANDARD OF REVIEW

“W e review a question o f statutory construction de novo.” United States v. W

eitzenhoff
, 35 F .3d 1 275, 1283 (9th Cir. 1 9 93). “Our review of the constitutional sufficien c y o f

e v i d ence to support a criminal conviction is g overned b y Jackson v. Virginia
, which requires a court o f a p p e als to determine whether, ‘ a f

t e r viewing the evidence in the lig ht

m ost favorable to the prosecution, any rational trier of fa ct could have found the essential elements of the crime bey ond

a reasonable doubt.’” United States v. Nevils
, 598 F

. 3d 1158, 1163–64 (9th Cir. 2010) ( en banc) (quoting Jack s o n v

. Virginia , 443 U.S. 307, 319 (1979)) (citation omitted).U N I T E D S T A T E S V

. O L S O N 7

D ISCUSSION

I

The misprision of felony

statute states:

W h oever, having knowledge of the actual commission of a felony c ognizable by a court of the United States
, c onceals and does not a s

soon as possible m ak e known the same to

some judg e or other person in civil or military authority under the United Sta t e s , shall be fined under this t i t l e or imprisoned not more than three y ears, or both.

18 U.S.C. § 4 (emphasis added).

To e stablish misprision of felony
, the go v ernment must p r o v e b e y ond a reasonable doubt: “(1) that the p rincipal

. . . committed and completed the felony alleg ed ; ( 2 ) that the defendant had full knowledg e o f that fact; (3) that he failed to notify the a

uthorities; and ( 4) that he took affirmative steps to conceal the crime o f the principal.” Lancey v. United States
, 356 F .2d 407
, 409 (9th Cir. 1966) (alterations omitted) (quoting Neal v. United S t a t e s , 102 F .2d 643, 646 (8th Cir. 1939)). Only

the second element is at issue here.

To show a defendant has “knowledg e of the actual commission of a felony cog niz a ble by a court of the United States,” 18 U.S.C. § 4
, the p arties a g ree the g overnment must prove at least that the defendant knew the principal engaged i n c onduct that satisfies the essential elements o f t h e underly ing f

elony

. I n other words, the defendant must “know the facts that make [ c ertain] condu ct fit the d efinition of theU N I T E D S T A T E S V

. O L S O N 8

offense.” E lonis v. United States
, 135 S. Ct. 2001, 2009 (2015) (quoting Staples v. United S t a t e s , 511 U .S. 600, 608 n.3 (1994)). The parties disag ree a s to whether – and to what

ex tent – the g overnment must also prove the defendant knew such conduct was a felony

. W e c on cl ude Olson h as the strong er arg

ument.

F irst, Olson’s construction is consistent with the g eneral presumption that a mens rea requirement applies t o e ach element o f an offense. “Absent indica t ion of contrary purpose in the lang uag e or leg islative history of the statute,” Liparot a v

. United States
, 471 U.S. 419, 425 (1985), we “ordinarily read a phrase in a criminal statute that introduces the e lem e n t s of a crime with the word ‘knowing ly ’ a s apply ing that word t o each e lement,” Flores-Figueroa
, 556 U.S. at 652. See United States v. W illiams
, 553 U.S. 285, 294 (2008) (applying a knowledg e requirem e n t to e ach subdivision in a statute in the absence o f “g r ammar o r structure enabl[ ing ] the c halleng ed provision o r s o me of its parts to b e read apart f

rom the ‘ knowi n gl y ’ requirement”); United States v. X-Citement Video, Inc. , 513 U.S. 64, 77–78 (1994) (“[ A] s a matter of g rammar it is difficult to conclude that the w ord ‘knowing ly ’ modifies o ne of t h e elements in [ the statute]
, b ut not the other.”). T his “presumption in favor of a scienter requirement,” X-Citement Video
, 5 13 U.S. at 72, “reflects the basic principal that ‘wrong d oing must be conscious to be criminal,’” Elonis
, 1 35 S. Ct. at 2009 (quoting Morissette v. United St a t e s , 342 U.S. 246, 252 ( 1 952)). A s a g eneral matter, “a defendant must be ‘blameworthy in mind’ b efore h e c an be found g uilty

. ” Id. (quoting Morissette , 342 U.S. at 252).

I n Liparota
, for e x ample, the statute a t i s sue imposed criminal liability on “whoever knowing ly uses, transfers,U N I T E D S T A T E S V

. O L S O N 9

acquires, alters, or possesses coupons or authoriz ation cards in any m a n n e r not authoriz ed by this chapter o r the
reg ulations issued p ursuant to this chapter.” L i parota , 471 U.S. at 420 n.1 (alteration omitted) (quoting 7 U. S

. C. § 2024(b)(1) (1985)). The e vidence showed the defend ant purchased f

ood stamps from an undercover ag ent for less than face value. See id. at 421. The g overnment arg ued the statute required proof only that the defendant k new of his acquisition of the cards, not that the acquisition was u nauthoriz ed b y law. See id. at 423. The Supreme Court disag reed. B ecause it was not clear from the tex t of the statute which phrase or phrases Cong r ess intended the knowledg e requirement to modify
, a nd because the leg is l a t i v e h istory contained nothing to c larify
cong ressional p urpose, the knowledg e requirement applied to

e ach phrase in the statute. The g overnment was requir e d t o show the defendant k

n ew pur chasing f

ood stamps for less than face value was unauthoriz ed by l a w

. S e e id. a t 425. Since Liparota
, the Court has applied this pr e s u m p tion to a rang e of statutes. See, e.g. , Flores-Figueroa
, 556 U.S. at 657 (applying a knowledg e requirement to each phras e in the
ag g r avated identity theft statute); W ill i a m s , 553 U.S. at 294 (applying a knowledg e requirement to all elements in a child
pornog raphy statute); X-Citement Video
, 513 U.S. a t 78 (applying a k

nowledg e requir e m ent to all elements in a statute criminaliz ing the ex ploitation of minors).

The same presumption applies here. F irst, as in Liparota
, th e tex t of the misprision statute a lone d oes not make clear whether the knowledg e requirement applies to each element. Compare 18 U.S.C. § 4 (“W h oever, having knowledg e of the actual commission of a felo n y c o g niz able by a court of the United States

. . . .”), w i t h 7 U.S.C. § 2024(b)(1) (1985) ( “ [ W ] hoever knowing ly uses, transfers, acquires, alters, or possesses coupons or aut horiz ation cards in any manner notU N I T E D S T A T E S V

. O L S O N 10

a u t h o r i z ed by this chapter

. . . .”). Putting aside the FloresFigueroa presumption, the mental state in § 4 could plausibly be read to modify only “actual commission” or both “actual commission” and “of a fe lony c og niz able by a court o f the United States.” Under Flores-Figueroa
, however, we presume Cong ress intended the k nowledg e requirement to apply to b oth phrases, see 556 U.S. at 6 52, and nothing in the
tex t o r l e g islative history neg ates the presumption that Cong r ess s o intended. The g overnment has not p ointed to any thing sug g esting Cong ress intended to penaliz e someone wh o did not know she was witnessing the commission of a felony

. According ly
, g iven the lang uag e of § 4 and the Flores-Figueroa p r e s umption, the statute is best interpreted as requiring

proof that, in addition to showing the defendant knew the p rincipal eng ag ed in conduct satisfy ing the essential elements of the underly ing felony
, the g overnment must also show the defendant knew such conduct was a felony

. Second, even putting the p resumption aside, the history o f misprision also supports Olson’s constr u c t i o n. I n Eng land, before the advent of p rofessional po l i ce forces, individual citiz ens bore the responsibility for combating crime. See Carl W ilson Mullis, I I I
, Misprision of Felony: A Reappraisal
, 23 Emory L

. J

. 1095, 1114 (1974). They had “a duty to raise the hue a

nd cry and report felonies to the authorities.” Branzburg v. Hayes
, 408 U.S. 665, 696 (197 2 ) (internal quotation marks omitted). S e e H u e and Cry
, Black’s Law Dictionary (10th ed. 2014) (“The p u b l i c uproar that, at

common law, a c it i z en was ex p ected to initiate a fter discovering a crime.”). A citiz en who breached t h i s duty could be charg e d with misprision. S ee Mullis, supra , at 1095. I n this country , the F irst Cong ress enacted the American misprision statute as part of the Crimes Act of 1790, the
current version of which is “functionally identical” to itsU N I T E D S T A T E S V

. O L S O N 11

predecessor. United States v

. Phillips
, 827 F .3d 1171, 1175 (9th Cir. 2016).

This contex t sug g ests Cong ress intended the misprision
statute to apply solely t o c o nduct the averag e person would understand as c riminal and serious. As an Eng lish court has

ex p lained, requiring knowledg e of the serious criminal nature of the underly ing offense “disposes of many of the supposed absurdities, such as boy s stealing apples, which many lay men would rank as a misdemeanour and no one would think he

was bound to report to the police.

. . . [M] i s p r i sion comprehends an offence which is o f so serious a character that an ordinary law-abiding citiz en would realise he oug ht to report it to the police.” Sykes v. Dir. of Pu b

. P r o s ecutions
, [ 1962] A.C. 528 at 563. 2

The g overnment arg u es in passing t h a t United States v

. Graves , 143 F .3d 1185 ( 9th Cir. 1998), as amended (J une 4, 1988), supports its position. Graves
, how e v e r, d id not address th e q u e stion we are c o nsidering here. Graves concerned the “accessory after the fact” statute, which states: “W h o ever, knowing that a n offense against the United States has been committed
, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial

or punishment, is a n accessory after the fact.” I d. at 1187 (emp h as is added) (quoting 18 U.S.C. § 3). The defendant

was charg e d as an a ccessory (“charg ed offense”) to the crime

2 Misp risio n h as b eco m e a litt l e u sed an d m u ch m alig n ed crim in al ch arg e. En g lan d elim in ated th e o f f en s e a f ew y ears af

ter th e S ykes d ecisio n

. S

ee Mu llis, su

p ra , at 1 1 0 0

– 0 1 . A m erican co m m en tato rs h av e

u rg ed Co n g ress to d o t h e s am e, arg u in g th e crim e h as o u tliv ed its

u s e f u ln ess in l ig h t o f m o d ern m eth o d s o f law en f o rcem en t

. S

ee , e

. g

. , E. L ee Mo rg an , M

isp risio n of F

e l o n y , 6 S.C. L

. Q. 8 7
, 9 5 (1 9 53

– 5 4 ); Mu llis, su pra , at 1 1 1 1 n .9 2 (listin g co m m en t ato rs).U N I T E D S T A T E S V

. O L S O N 12

of felon in possession of a firearm ( “ u n d erly ing offense”). See id. at 1186. The underly ing offense, felon in possession of a firearm, contains two elem e n t s : first, possession of a weapon and second, a previous felony conviction. See id. at 1187. There was no evidence the d efendant kn ew the principal was a felon, but the g overnment arg ued it need not make such a showi n g. S e e id. W e disag reed, holding a “defendant who is a ccused of being an accessory after the fact
must be shown to have had actual knowledg e of each element of the underly

ing offense.” Id. at 1189. T he g overnment was therefore requi r e d to prove the defendant knew that “the offender possessed a firearm” and that the offender “had previously

been convicted of a felony .” Id.

Applied here, Graves s t a n d s only for the undisputed proposition that Olson must have had knowledg e of the elements of the underlying offense

– submission of false
statements to the USDA. Graves d oes not address or support the government’s arg ument reg arding the specified knowledg e requirement of the charged o f fense h ere

– misprision of a felony

. 3

I n sum, in lig ht of Supreme Court precedent and relevant history
, we hold the misprision st a t u te requires knowledg e not only tha t t he principal eng ag ed in c onduct that satisfies

3 B o t h p arties i n v o k e U

n ited S ta tes v. W

h ite Ea gle
, 7 2 1 F.3 d 1 1 0 8 (9 th Cir. 2 0 1 3 ), in su

p p o rt o f th eir resp ectiv e po sitio n s. T h i s case h as n o b earin g o n o u r an aly sis h ere b ecau s e i t d id n o t ad d ress th e k n o w led g e req u irem en t of th e m isp risio n statu t e. S ee id

. at 1 1 1 9

– 2 0 (ad d ressin g o n ly th e “ f ailu re to n o tif

y th e au th orities” an d t

h e “ af f irm ativ e step t o co n ceal” elem en ts).U N I T E D S T A T E S V

. O L S O N 13

the essential e lements of the underly ing felony , but also that the underly

ing offense is a felony

. 4

II

The question then becomes: W hat does it mean to know conduct constitutes a felony ?

W h en a term used in a statute is defined by that statute o r by “any other relevant statutory provision,” Taniguchi v. Kan Pac. Saipan, Ltd.
, 1 32 S. Ct. 1997, 2002 ( 2012), we g enerally
presume that d efinition applies to the statute’s u se of the
term. See S

tenberg v

. Carhart
, 530 U.S. 914, 942 (2000) (“W hen a statute includes a n ex pl i c i t definition, we must follow that definition, e ven if it varies f rom that term’s ordinary meaning .”); see also Meese v. Keene
, 481 U.S. 465,

4 Olso n ask s u s to g o f

u rth er b y h old in g th e g o v ern m en t m u st sh o w th e d ef en d an t k n ew th e relev an t

co n du ct w as a f

elo n y u n d er fed

era l law
, b ased o n th e statu te’ s lan g u ag e s tatin g “ o f a f elo n y co g niza b le b

y a co urt

o f th e Un i ted Sta tes. ” 1 8 U.S.C. § 4 (em ph asis ad d ed ). W e d eclin e to d o

s o

. “T h e co n cep t o f crim in al in ten t d oes n o t ex ten d so f ar as to req u ire th at th e acto r u n d er s t a n d no t o n ly th e n atu re o f h is act b u t also its

co n seq u en ce f

o r th e ch o i ce o f a j u d icial f o ru m .” Un ited

S ta tes v. Feo la
, 4 2 0 U.S. 6 7 1
, 6 8 5 (1 9 75 ). T h e req u i rem en t th at th e f elo n y b e co g n izab le b y a c o u r t o f t

h e Un ited S tates w as in clu d ed in th e statu te to state th e f o u n d atio n f

o r f ed eral j u risd ictio n

. S

ee Un ited S ta tes v. Ho wey , 42 7 F.2 d 1 0 1 7
, 1 0 1 8 (9 th Cir. 1 9 7 0 ). “ A d ef en dan t’ s k

n o w led g e o f th e j u risd ictio n al f

act is irrelev an t,” id

. , as h a s b een h eld in n

u m ero u s cases in terp retin g an alo g o u s statu to ry p r o v i s io n s. S ee, e.g

. , Un ited S ta tes v. Felix-Gu tierrez
, 9 4 0 F

. 2 d 1 2 0 0
, 1 2 0 6

– 0 7 (9 th Cir. 1 9 9 1 ) (h o ld in g a d ef en d an t ch arg ed w ith b ein g an accesso ry af ter th e f ac t ne e d n ot k

n o w th e p rin cip al crim e w as o n e ag ain st t h e Un ited States d esp ite th e p resen ce

o f su ch lan g u ag e in t

h e statu te); Feo la
, 4 2 0 U.S. at 68 7 (h o ld in g a d ef en d an t ch arg ed w ith co n sp iracy n eed n o t k n o w h is co n d u ct v io l ated f ed eral law d esp ite t

h e statu t e’ s p ro h ib itio n on co n sp irin g to co m m i t an

o f f en se ag ain st th e Un ited States).U N I T E D S T A T E S V

. O L S O N 14

484 (1987) (“I t is ax iomatic that the statutory definition of the
term ex clude s u n stated meaning s of that term.”); United States v. Lettier e , 640 F

. 3d 1271, 1 274 (9th Cir. 2 011) (“[ There is a] well-settled p rinciple that, f or purposes o f statutory interpretation, the lang uag e of the statute is the first and, if the lang uag e is clear, the only relevant inquiry .”).

This presumption is n o t absolute, however. I f interpreting

a term consistently with its statutor y definition would, for instance, lead to “obvious incong ruities” or would “destroy

one o f the major [cong ressiona l] p urposes,” the statutory definition may y ie l d t o c ontex t. See Lawson v. Suwannee Fruit & S.S. Co
., 336 U.S. 198, 201 ( 1949); see also Util. Air Regulato ry G rp. v. EPA
, 134 S. Ct. 2427, 2441 (2014) ( confirming that the presum p tion of consistent u sag e may y ield to contex t).

Here, the term “felony” is defined a s part of the federal criminal code as a crime punishable by death or a term o f imprisonment ex ceeding one y ear. See 18 U.S.C. § 3559(a);

see also Burgess v. United States
, 553 U.S. 124, 130 (2008) (“[ T] he term ‘felony ’ is c ommonly d efined to mean a crime punishable by imprisonment for more than one y ear.” (citing 18 U.S.C. § 3559(a))). Althoug h the misprision offense and the felony d efini t i o n a re in separate sections of the United States Code, t h e y w ere included in the same statute a t least twice. I n 1909, Cong ress passed an act to “codify
, revise, a nd amend the p enal laws of the United States.” Se e C riminal Code of 1909, ch. 321, 35 Sta t

. 1 0 8 8
, 1 088 (preamble) (the “1909 Crime Act”). Along w i t h a slig h tly modified v ersion of the orig inal m i s p r ision statute, see id. § 146, 35 Stat. at 111 4
, the 1909 Crime Act included, apparently for the first
t i m e , a statutory definition for the term “felony ,” see id. § 335, 35 Stat. at 1152 (“All offenses which may be punishedU N I T E D S T A T E S V

. O L S O N 15

by death, or imprisonment for a term ex ce e d i n g one y ear, shall be deemed felonies.”). The 1948 Crimes and Criminal Procedure Act (the “ 19 4 8 Crime Act”), enacted to “revise, codify
, and enact into posit ive law, Title 18 of the United States Code, entitled ‘Crim e s and Criminal Procedure,’” Crimes and Criminal Procedure Act, Pub. L

. No. 80-772, 62 Stat. 683, 683 (1948) (preamble), similarly included versions of bot h p r o v isions. See id. §§ 1, 4, 62 Stat. at 684. I ndeed, the 1948 Crime Act actually included the felony definition and the misprision offense on the very same pag e. See id.

This is a c ase, th e r e f

o re, in which Cong ress has adopted

a s t a t u te using a term – “felony” – and in the same statute

a dopted a definition that presumptively applies. Moreove r, it does not appear the presumption is rebut t ed by contex t. Apply ing the statutory defin i t i on, for instance, neither leads
to incong ruities nor destroy s Con gr ess’ purposes. See Lawson
, 3 36 U.S. at 201. The drafting h i s t o r y of the 1909 and 1948 Crime Acts supports this conclusion. B efore 1909, the term “felony” lacked a uniform definit i o n

. A Senate Report on the 1909 Crime Act ex plained that the term “felony ” h ad an “indefinite class i f i cation,” resulting in its being “indiscriminately applie d .” S. Rep. N o. 60-10, at 12 ( 1 908). The report therefore underscored the need for a uniform definitio n , which w ould “characteriz e the whole

s y s t e m r ather than pertain to any particular part of it.” Id. F ar from “destroy [ ing ] one o f the major [ cong ressional] purposes,” see Lawson
, 336 U. S. at 201, incorporating § 3559’s defi n i t ion into the misprision statute furthers Cong r ess’ intent to bring a measure of uniformity to the criminal code.

W e theref

o re hold the g overnment must prove the defenda n t knew the underly ing offense was punishable b yU N I T E D S T A T E S V

. O L S O N 16

d e a th or more than one y e ar in prison. The defendant nee d
not know the precise term o f imprisonment a uthoriz ed b y law, but at least she must k now the potential p u n i s h m e nt

ex c e eds one y e ar in prison. 5

III

I n Olson’s case, there was sufficient evidence to support a jury ’s finding that she knew submitting false statements to the USDA w as punishable by a sentence o f incarceration

ex c e eding one y e ar. See Nevils
, 598 F

. 3d at 1163–64. 6 The USDA g r ant form Olson completed on behalf of W ells

ex p licitly warned that any indiv i d u a l who submitted false

5 K n o w led g e is ord i n arily a su b j ectiv e stan d ard
, an d th e p arties d o n o t arg u e t h e ru le is o th erw ise h ere. S e e , e.g

. , U

n ited Sta tes v. Twin e , 8 5 3 F.2 d 6 7 6 , 6 80 (9 th

Cir. 1 9 8 8 ) (“ W e d rew o u r co n clu sio n in th e f ace

o f Co n g ress’ u s e of th e term s ‘ k n o w i n g ly an d w illf

u lly ,’ w o rd s w

h i ch th e Mo d el P en al Co d e d ef

in es in a su

b j ectiv e m an n er.”); Un ited S ta tes v. Jewell
, 5 3 2 F. 2 d 6 9 7, 7 0 7 (9 th Cir. 1 9 7 6 ) (en b an c) (Ken n ed y , J
., d issen tin g ) (“ [K]n o w led g e [is] a m atter o f su b j ectiv e belief

, an i m p o rtan t

s a fe g u ard ag ain st d ilu t in g th e g u ilty state o f m in d req u ired fo r

co n v ictio n .”).

6 A s t o th is i ssu e, Olso n raises o n ly a su f f icien cy o f th e ev id en ce claim

. O l s o n d oes n o t co n test th e ad eq u acy o f th e m isp risio n j u ry in stru ctio n ap art f

ro m i ts f ailu re to i n clu d e a u n an im ity i n s t r u c t io n – an issu e w e ad d re ss i n a co n cu rren tly f iled m em o ran d u m d isp o s itio n

. No r d id sh e p ro f

f er a j u ry in stru ctio n

at trial clarif

y in g th i s p o in t o f law . W e th eref o re assu m e th e j u ry w as p ro p erly i n stru cted o n m isp ri s i o n an d ad d ress so lely Olso n ’ s arg u m en t th at t h e re w as in su f f icien t ev id en ce of h er k n o w l ed g e. In f

u tu re cases, o f co u rse, a d ef en d an t in Olso n ’ s p o sitio n

co u ld req u est a n i n stru ctio n req u irin g th e g o v ern m en t to p ro v e th at sh e k n ew th e u n d erly in g o f

f en se w as p u n i sh a b l e b y m o re th an o n e y ear in
p riso n

. T h e i n stru ctio n s g iv en h ere d id n o t sp ecif ically ad dress th i s i ssu e, b u t Olso n d id n o t c h a l l e n g e th e in s tru ctio n on ap p eal, so w e n eed n o t ad d ress w h eth er th e f

ailu re to g iv e su ch an in stru ctio n w as erro n eo u s

.U N I T E D S T A T E S V

. O L S O N 17

statements to the USDA could be imprisoned up to five y ears. Olson had seen similar warning s “many times,” and the jury could have inferred O lson’s sophistication from her

ex p erience as ex ecutive director of the USDA F arm Service Ag ency

. This evidence was sufficient f or a reasonable jury
to find Olson knew B e u s’ crime was punishable by more than
a y ear in custody

.

CONCLUSION

W e hold 18 U.S.C. § 4 requires the g overnment to prove the defendant knew t h e p r incipal e ng a g ed in conduct that satisfies the essential elements of t h e u nderly ing felony and that the def

e n dant knew such conduct was a felony

. T o establish the latter, the g overnment must prove the defendant knew the offense was punish a b l e by death or a term o f imprisonment ex ceeding one y ear. Su fficient evidence supports that finding here. F or the reasons s tated in this opinion and in a concurrently filed memorandum disposition, we affirm Olson’s conviction.

AF F IRMED.

HURW I TZ
, Circuit J udg e , concurring in part a nd concurring in the result:

This case does not turn on whether the g o vernment must prove in a misprision prosecution under 18 U.S.C. § 4 that the defendant knew the underly ing offense w as a felony

. A s the majority correctly concludes, the evidence at trial sufficed for

a misprision conviction even if the g overnment bears that burden of proof.U N I T E D S T A T E S V

. O L S O N 18

The majority ’s interpretation of the statute may be
correct. B ut, I would leave such analy sis for another day , in

a case in which it matters to the o utcome. See W hitehouse v

. Ill. Cent. R. Co.
, 349 U.S. 366, 372–73 (1955) (“These a r e perplex ing q

uestions. Their difficulty admonishes u s t o observe the wise limit a t i o n s on our function and to confine ourselves to decidin g o n l y what is necessary to the disposition of the immediate case.”); PDK Labs. Inc. v. D EA
, 362 F .3d 786, 7 9 9 (D.C. Cir. 2 004) (Roberts, J

. , concurring in p art and concurring in the judg ment) (noting “the cardinal
p r inciple of judicial restraint” that “ if it is not necessary t o decide more, it is necessary not to decide more”).