FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KAREN B. OLSON,

Defendant-Appellant.

No. 15-30022

D.C. No.

3:13-cr-00093-TMB-1

OPINION

Appeal from the United States District Court

for the District of Alaska

Timothy M. Burgess, Chief Judge, Presiding

Argued and Submitted August 4, 2016

Anchorage, Alaska

Filed May 15, 2017

Before: Raymond C. Fisher, Richard A. Paez

and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Fisher;

Concurrence by Judge Hurwitz
2 UNITED STATES V. OLSON

SUMMARY*

Criminal Law

The panel affirmed the defendant’s conviction under

18 U.S.C. § 4 (misprision of felony) for concealing and

failing to notify authorities of her business partner’s

submission of false statements to the United States

Department of Agriculture Rural Development Program in

connection with a federal grant application. 

The panel held that, to secure a conviction under § 4, the

government must prove not only that the defendant knew the

principal engaged in conduct that satisfies the essential

elements of the underlying felony, but also that the defendant

knew the conduct was a felony; that to establish the latter, the

government must prove the defendant knew the offense was

punishable by death or a term of imprisonment exceeding one

year; and that sufficient evidence supports the jury’s finding

that the defendant here knew the principal’s crime was

punishable by more than a year in custody. 

Concurring in part and concurring in the result, Judge

Hurwitz would leave to another day, in a case in which it

matters to the outcome, whether the government must prove

in a § 4 prosecution that the defendant knew the underlying

offense was a felony.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. OLSON 3

COUNSEL

Glenda Kerry (argued), Law Office of Glenda J. Kerry,

Girdwood, Alaska, for Defendant-Appellant.

Retta-Rae Randall (argued),AssistantUnited States Attorney,

United States Attorney’s Office, Anchorage, Alaska, for

Plaintiff-Appellee.

OPINION

FISHER, Circuit Judge:

Karen Olson appeals her conviction for misprision of

felony under 18 U.S.C. § 4. She was convicted of concealing

and failing to notify authorities of her business partner’s

submission of false statements to the United States

Department of Agriculture Rural Development Program

(USDA) in connection with a federal grant application. She

challenges her conviction, arguing the government failed to

prove she knew the conduct she concealed constituted a

felony. We address her argument in two parts. First, we

agree with Olson that, to secure a conviction under 18 U.S.C.

§ 4, the government must prove not only that the defendant

knew the principal engaged in conduct that satisfies the

essential elements of the underlying felony, but also that the

defendant knew the conduct was a felony. See FloresFigueroa v. United States, 556 U.S. 646, 652 (2009)

(“[C]ourts ordinarily read a phrase in a criminal statute that

introduces the elements of a crime with the word ‘knowingly’

as applying that word to each element.”). Second, applying

that standard, we hold sufficient evidence supports the jury’s
4 UNITED STATES V. OLSON

finding that Olson had the requisite knowledge here. We

therefore affirm.1

BACKGROUND

The USDA awarded a grant to Robert Wells to open a

milk processing facility. The terms of the grant provided that

certain equipment was to be purchased wholly or in part with

grant funds, and that the USDA would hold a first lien

position on any equipment purchased with grant money. 

Although the grant was in Wells’ name, he had an informal

“handshake” partnership with Olson, a former Alaska

executive director of the USDA Farm Service Agency who

wrote Wells’ grant application. Wells described her as the

“brains” behind the grant, and their informal partnership

entitled her to 50 percent of the profits from the milk

processing facility.

Around the same time, Kyle Beus received a separate

USDA grant to establish an ice cream and cheese

manufacturing facility. The paperwork for both Wells’ and

Beus’ grant applications warned that anyone who made false,

fictitious or fraudulent statements could be fined or

imprisoned for up to five years.

Wells, Beus and Olson agreed to locate their two projects

at the same facility. Unbeknownst to Wells and Olson, Beus

instructed his contractor, Nether Industries, to inflate the

value of certain dairy processing equipment – including a

clean-in-place (CIP) system and a glycol chilling system – on

papers submitted to the USDA for reimbursement. Beus also

1 We reject Olson’s remaining challenges in an unpublished

memorandum disposition filed concurrently with this opinion.
UNITED STATES V. OLSON 5

submitted invoices to Nether, allegedly for project expenses,

so he could personally receive a portion of the grant money

the USDA disbursed.

A year into the enterprise, Beus told Wells and Olson he

had leased certain “technologically obsolete” pieces of

equipment rather than purchase new equipment as agreed in

the original grant application, including a “really cheap old

glycol unit” and an “incomplete clean-in-place system.” As

to some of this equipment, Olson informed the USDA there

had been a change of plans that called for “leasing instead of

outright purchasing some of the original smaller equipment.” 

She did not do so, however, with respect to the CIP system

and glycol cooling system. The attached “Proposed Money

Grant Expenditure” included a CIP system listed at $35,000

and a glycol cooling system listed at $50,000 when, in fact,

those systems had been leased rather than purchased.

After the USDA disbursed the grant funds, Olson filed a

final report with the department. It included a “Final List of

Expenditures by Category and Completion” that once again

falsely listed the purchase of a $35,000 CIP system and a

$50,000 glycol cooling system.

Olson later became aware that Beus had been

misappropriating grant funds by submitting false invoices to

Nether Industries and receiving payments – which Olson

described as “kickbacks” – in return. Olson also discovered

Beus had improperly used grant 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 Beus’

actions were improper. She wrote: “Began full-time work on

financials/straightening out Kyle’s mess. Learning of

questionable deals – Nether – Kyle spent $190,000 of our
6 UNITED STATES V. OLSON

grant on others, so Nether way over budget. Also, Kyle

misused our [] advance $ as his own stock purchases – !” 

Olson told the project’s office assistant she “could send

[Beus’] ass to jail.” She wrote members of her board that

“[t]he revelations of the past week have crystallized for me

that [Beus’ agreement to co-locate the projects] was simply

a way to divert our grant money into a grandiose plan that has

not worked,” and that Beus “has put the entire dairy industry

at risk for an ever-widening investigation closing off all loan

sources and public goodwill.”

Olson was convicted after a jury trial of misprision of

felony under 18 U.S.C. § 4. Her conviction was based on her

knowledge that Beus, the principal, submitted false

statements to the USDA in furtherance of his scheme to

misappropriate grant funds in violation of 18 U.S.C. § 1014

– a felony under federal law. Olson appeals.

STANDARD OF REVIEW

“We review a question of statutoryconstruction de novo.” 

United States v. Weitzenhoff, 35 F.3d 1275, 1283 (9th Cir.

1993). “Our review of the constitutional sufficiency of

evidence to support a criminal conviction is governed by

Jackson v. Virginia, which requires a court of appeals to

determine whether, ‘after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond

a reasonable doubt.’” United States v. Nevils, 598 F.3d 1158,

1163–64 (9th Cir. 2010) (en banc) (quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979)) (citation omitted).
UNITED STATES V. OLSON 7

DISCUSSION

I

The misprision of felony statute states:

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.

18 U.S.C. § 4 (emphasis added).

To establish misprision of felony, the government must

prove beyond a reasonable doubt: “(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.” Lancey v. United States,

356 F.2d 407, 409 (9th Cir. 1966) (alterations omitted)

(quoting Neal v. United States, 102 F.2d 643, 646 (8th Cir.

1939)). Only the second element is at issue here.

To show a defendant has “knowledge of the actual

commission of a felony cognizable by a court of the United

States,” 18 U.S.C. § 4, the parties agree the government must

prove at least that the defendant knew the principal engaged

in conduct that satisfies the essential elements of the

underlying felony. In other words, the defendant must “know

the facts that make [certain] conduct fit the definition of the
8 UNITED STATES V. OLSON

offense.” Elonis v. United States, 135 S. Ct. 2001, 2009

(2015) (quoting Staples v. United States, 511 U.S. 600, 608

n.3 (1994)). The parties disagree as to whether – and to what

extent – the government must also prove the defendant knew

such conduct was a felony. We conclude Olson has the

stronger argument.

First, Olson’s construction is consistent with the general

presumption that a mens rea requirement applies to each

element of an offense. “Absent indication of contrary

purpose in the language or legislative history of the statute,”

Liparota v. United States, 471 U.S. 419, 425 (1985), we

“ordinarily read a phrase in a criminal statute that introduces

the elements of a crime with the word ‘knowingly’ as

applying that word to each element,” Flores-Figueroa,

556 U.S. at 652. See United States v. Williams, 553 U.S. 285,

294 (2008) (applying a knowledge requirement to each

subdivision in a statute in the absence of “grammar or

structure enabl[ing] the challenged provision or some of its

parts to be read apart from the ‘knowingly’ requirement”);

United States v. X-Citement Video, Inc., 513 U.S. 64, 77–78

(1994) (“[A]s a matter of grammar it is difficult to conclude

that the word ‘knowingly’ modifies one of the elements in

[the statute], but not the other.”). This “presumption in favor

of a scienter requirement,” X-Citement Video, 513 U.S. at 72,

“reflects the basic principal that ‘wrongdoing must be

conscious to be criminal,’” Elonis, 135 S. Ct. at 2009

(quoting Morissette v. United States, 342 U.S. 246, 252

(1952)). As a general matter, “a defendant must be

‘blameworthy in mind’ before he can be found guilty.” Id.

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

In Liparota, for example, the statute at issue imposed

criminal liability on “whoever knowingly uses, transfers,
UNITED STATES V. OLSON 9

acquires, alters, or possesses coupons or authorization cards

in any manner not authorized by this chapter or the

regulations issued pursuant to this chapter.” Liparota,

471 U.S. at 420 n.1 (alteration omitted) (quoting 7 U.S.C.

§ 2024(b)(1) (1985)). The evidence showed the defendant

purchased food stamps from an undercover agent for less than

face value. See id. at 421. The government argued the statute

required proof only that the defendant knew of his acquisition

of the cards, not that the acquisition was unauthorized by law. 

See id. at 423. The Supreme Court disagreed. Because it was

not clear from the text of the statute which phrase or phrases

Congress intended the knowledge requirement to modify, and

because the legislative history contained nothing to clarify

congressional purpose, the knowledge requirement applied to

each phrase in the statute. The government was required to

show the defendant knew purchasing food stamps for less

than face value was unauthorized by law. See id. at 425. 

Since Liparota, the Court has applied this presumption to a

range of statutes. See, e.g., Flores-Figueroa, 556 U.S. at 657

(applying a knowledge requirement to each phrase in the

aggravated identity theft statute); Williams, 553 U.S. at 294

(applying a knowledge requirement to all elements in a child

pornography statute); X-Citement Video, 513 U.S. at 78

(applying a knowledge requirement to all elements in a

statute criminalizing the exploitation of minors).

The same presumption applies here. First, as in Liparota,

the text of the misprision statute alone does not make clear

whether the knowledge requirement applies to each element. 

Compare 18 U.S.C. § 4 (“Whoever, having knowledge of the

actual commission of a felony cognizable by a court of the

United States . . . .”), with 7 U.S.C. § 2024(b)(1) (1985)

(“[W]hoever knowingly uses, transfers, acquires, alters, or

possesses coupons or authorization cards in any manner not
10 UNITED STATES V. OLSON

authorized 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 felony cognizable by a court of the

United States.” Under Flores-Figueroa, however, we

presume Congress intended the knowledge requirement to

apply to both phrases, see 556 U.S. at 652, and nothing in the

text or legislative history negates the presumption that

Congress so intended. The government has not pointed to

anything suggesting Congress intended to penalize someone

who did not know she was witnessing the commission of a

felony. Accordingly, given the language of § 4 and the

Flores-Figueroa presumption, the statute is best interpreted

as requiring proof that, in addition to showing the defendant

knew the principal engaged in conduct satisfying the essential

elements of the underlying felony, the government must also

show the defendant knew such conduct was a felony.

Second, even putting the presumption aside, the history of

misprision also supports Olson’s construction. In England,

before the advent of professional police forces, individual

citizens bore the responsibility for combating crime. See Carl

Wilson Mullis, III, Misprision of Felony: A Reappraisal,

23 Emory L.J. 1095, 1114 (1974). They had “a duty to raise

the hue and cry and report felonies to the authorities.”

Branzburg v. Hayes, 408 U.S. 665, 696 (1972) (internal

quotation marks omitted). See Hue and Cry, Black’s Law

Dictionary (10th ed. 2014) (“The public uproar that, at

common law, a citizen was expected to initiate after

discovering a crime.”). A citizen who breached this duty

could be charged with misprision. See Mullis, supra, at 1095. 

In this country, the First Congress enacted the American

misprision statute as part of the Crimes Act of 1790, the

current version of which is “functionally identical” to its
UNITED STATES V. OLSON 11

predecessor. United States v. Phillips, 827 F.3d 1171, 1175

(9th Cir. 2016).

This context suggests Congress intended the misprision

statute to apply solely to conduct the average person would

understand as criminal and serious. As an English court has

explained, requiring knowledge of the serious criminal nature

of the underlying offense “disposes of many of the supposed

absurdities, such as boys stealing apples, which many laymen

would rank as a misdemeanour and no one would think he

was bound to report to the police. . . . [M]isprision

comprehends an offence which is of so serious a character

that an ordinary law-abiding citizen would realise he ought to

report it to the police.” Sykes v. Dir. of Pub. Prosecutions,

[1962] A.C. 528 at 563.2

The government argues in passing that United States v.

Graves, 143 F.3d 1185 (9th Cir. 1998), as amended (June 4,

1988), supports its position. Graves, however, did not

address the question we are considering here. Graves

concerned the “accessory after the fact” statute, which states:

“Whoever, knowing that an 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 an accessory after the fact.” Id. at 1187

(emphasis added) (quoting 18 U.S.C. § 3). The defendant

was charged as an accessory (“charged offense”) to the crime

2 Misprision has become a little used and much maligned criminal

charge. England eliminated the offense a few years after the Sykes

decision. See Mullis, supra, at 1100–01. American commentators have

urged Congress to do the same, arguing the crime has outlived its

usefulness in light of modern methods of law enforcement. See, e.g.,

E. Lee Morgan, Misprision of Felony, 6 S.C. L. Q. 87, 95 (1953–54);

Mullis, supra, at 1111 n.92 (listing commentators).
12 UNITED STATES V. OLSON

of felon in possession of a firearm (“underlying offense”). 

See id. at 1186. The underlying offense, felon in possession

of a firearm, contains two elements: first, possession of a

weapon and second, a previous felony conviction. See id. at

1187. There was no evidence the defendant knew the

principal was a felon, but the government argued it need not

make such a showing. See id. We disagreed, holding a

“defendant who is accused of being an accessory after the fact

must be shown to have had actual knowledge of each element

of the underlying offense.” Id. at 1189. The government was

therefore required 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 stands only for the undisputed

proposition that Olson must have had knowledge of the

elements of the underlying offense – submission of false

statements to the USDA. Graves does not address or support

the government’s argument regarding the specified

knowledge requirement of the charged offense here –

misprision of a felony.

3

In sum, in light of Supreme Court precedent and relevant

history, we hold the misprision statute requires knowledge

not only that the principal engaged in conduct that satisfies

3 Both parties invoke United States v. White Eagle, 721 F.3d 1108

(9th Cir. 2013), in support of their respective positions. This case has no

bearing on our analysis here because it did not address the knowledge

requirement ofthe misprision statute. See id. at 1119–20 (addressing only

the “failure to notify the authorities” and the “affirmative step to conceal”

elements).
UNITED STATES V. OLSON 13

the essential elements of the underlying felony, but also that

the underlying offense is a felony.

4

II

The question then becomes: What does it mean to know

conduct constitutes a felony?

When a term used in a statute is defined by that statute or

by “any other relevant statutory provision,” Taniguchi v. Kan

Pac. Saipan, Ltd., 132 S. Ct. 1997, 2002 (2012), we generally

presume that definition applies to the statute’s use of the

term. See Stenberg v. Carhart, 530 U.S. 914, 942 (2000)

(“When a statute includes an explicit definition, we must

follow that definition, even if it varies from that term’s

ordinary meaning.”); see also Meese v. Keene, 481 U.S. 465,

4 Olson asks us to go further by holding the government must show

the defendant knew the relevant conduct was a felony under federal law,

based on the statute’s language stating “of a felony cognizable by a court

of the United States.” 18 U.S.C. § 4 (emphasis added). We decline to do

so. “The concept of criminal intent does not extend so far as to require

that the actor understand not only the nature of his act but also its

consequence for the choice of a judicial forum.” United States v. Feola,

420 U.S. 671, 685 (1975). The requirement that the felony be cognizable

by a court of the United States was included in the statute to state the

foundation for federal jurisdiction. See United States v. Howey, 427 F.2d

1017, 1018 (9th Cir. 1970). “A defendant’s knowledge of the

jurisdictional fact is irrelevant,” id., as has been held in numerous cases

interpreting analogous statutory provisions. See, e.g., United States v.

Felix-Gutierrez, 940 F.2d 1200, 1206–07 (9th Cir. 1991) (holding a

defendant charged with being an accessory after the fact need not know

the principal crime was one against the United States despite the presence

of such language in the statute); Feola, 420 U.S. at 687 (holding a

defendant charged with conspiracy need not know his conduct violated

federal law despite the statute’s prohibition on conspiring to commit an

offense against the United States).
14 UNITED STATES V. OLSON

484 (1987) (“It is axiomatic that the statutory definition of the

term excludes unstated meanings of that term.”); United

States v. Lettiere, 640 F.3d 1271, 1274 (9th Cir. 2011)

(“[There is a] well-settled principle that, for purposes of

statutory interpretation, the language of the statute is the first

and, if the language is clear, the only relevant inquiry.”).

This presumption is not absolute, however. If interpreting

a term consistently with its statutory definition would, for

instance, lead to “obvious incongruities” or would “destroy

one of the major [congressional] purposes,” the statutory

definition may yield to context. See Lawson v. Suwannee

Fruit & S.S. Co., 336 U.S. 198, 201 (1949); see also Util. Air

Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2441 (2014)

(confirming that the presumption of consistent usage may

yield to context).

Here, the term “felony” is defined as part of the federal

criminal code as a crime punishable by death or a term of

imprisonment exceeding one year. See 18 U.S.C. § 3559(a);

see also Burgess v. United States, 553 U.S. 124, 130 (2008)

(“[T]he term ‘felony’ is commonly defined to mean a crime

punishable by imprisonment for more than one year.” (citing

18 U.S.C. § 3559(a))). Although the misprision offense and

the felony definition are in separate sections of the United

States Code, they were included in the same statute at least

twice. In 1909, Congress passed an act to “codify, revise, and

amend the penal laws of the United States.” See Criminal

Code of 1909, ch. 321, 35 Stat. 1088, 1088 (preamble) (the

“1909 Crime Act”). Along with a slightly modified version

of the original misprision statute, see id. § 146, 35 Stat. at

1114, the 1909 Crime Act included, apparently for the first

time, a statutory definition for the term “felony,” see id.

§ 335, 35 Stat. at 1152 (“All offenses which may be punished
UNITED STATES V. OLSON 15

by death, or imprisonment for a term exceeding one year,

shall be deemed felonies.”). The 1948 Crimes and Criminal

Procedure Act (the “1948 Crime Act”), enacted to “revise,

codify, and enact into positive law, Title 18 of the United

States Code, entitled ‘Crimes and Criminal Procedure,’”

Crimes and Criminal Procedure Act, Pub. L. No. 80-772, 62

Stat. 683, 683 (1948) (preamble), similarly included versions

of both provisions. See id. §§ 1, 4, 62 Stat. at 684. Indeed,

the 1948 Crime Act actually included the felony definition

and the misprision offense on the very same page. See id.

This is a case, therefore, in which Congress has adopted

a statute using a term – “felony” – and in the same statute

adopted a definition that presumptively applies. Moreover,

it does not appear the presumption is rebutted by context. 

Applying the statutory definition, for instance, neither leads

to incongruities nor destroys Congress’ purposes. See

Lawson, 336 U.S. at 201. The drafting history of the 1909

and 1948 Crime Acts supports this conclusion. Before 1909,

the term “felony” lacked a uniform definition. A Senate

Report on the 1909 Crime Act explained that the term

“felony” had an “indefinite classification,” resulting in its

being “indiscriminately applied.” S. Rep. No. 60-10, at 12

(1908). The report therefore underscored the need for a

uniform definition, which would “characterize the whole

system rather than pertain to any particular part of it.” Id.

Far from “destroy[ing] one of the major [congressional]

purposes,” see Lawson, 336 U.S. at 201, incorporating

§ 3559’s definition into the misprision statute furthers

Congress’ intent to bring a measure of uniformity to the

criminal code.

We therefore hold the government must prove the

defendant knew the underlying offense was punishable by
16 UNITED STATES V. OLSON

death or more than one year in prison. The defendant need

not know the precise term of imprisonment authorized by

law, but at least she must know the potential punishment

exceeds one year in prison.5

III

In Olson’s case, there was sufficient evidence to support

a jury’s finding that she knew submitting false statements to

the USDA was punishable by a sentence of incarceration

exceeding one year. See Nevils, 598 F.3d at 1163–64.6

 The

USDA grant form Olson completed on behalf of Wells

explicitly warned that any individual who submitted false

5 Knowledge is ordinarily a subjective standard, and the parties do not

argue the rule is otherwise here. See, e.g., United States v. Twine,

853 F.2d 676, 680 (9th Cir. 1988) (“We drew our conclusion in the face

of Congress’ use of the terms ‘knowingly and willfully,’ words which the

Model Penal Code defines in a subjective manner.”); United States v.

Jewell, 532 F.2d 697, 707 (9th Cir. 1976) (en banc) (Kennedy, J.,

dissenting) (“[K]nowledge [is] a matter of subjective belief, an important

safeguard against diluting the guilty state of mind required for

conviction.”).

6 As to this issue, Olson raises only a sufficiency of the evidence

claim. Olson does not contest the adequacy of the misprision jury

instruction apart from its failure to include a unanimity instruction – an

issue we address in a concurrently filed memorandum disposition. Nor

did she proffer a jury instruction at trial clarifying this point of law. We

therefore assume the jury was properly instructed on misprision and

address solely Olson’s argument that there was insufficient evidence of

her knowledge. In future cases, of course, a defendant in Olson’s position

could request an instruction requiring the government to prove that she

knew the underlying offense was punishable by more than one year in

prison. The instructions given here did not specifically address this issue,

but Olson did not challenge the instruction on appeal, so we need not

address whether the failure to give such an instruction was erroneous.
UNITED STATES V. OLSON 17

statements to the USDA could be imprisoned up to five years. 

Olson had seen similar warnings “many times,” and the jury

could have inferred Olson’s sophistication from her

experience as executive director of the USDA Farm Service

Agency. This evidence was sufficient for a reasonable jury

to find Olson knew Beus’ crime was punishable by more than

a year in custody.

CONCLUSION

We hold 18 U.S.C. § 4 requires the government to prove

the defendant knew the principal engaged in conduct that

satisfies the essential elements of the underlying felony and

that the defendant knew such conduct was a felony. To

establish the latter, the government must prove the defendant

knew the offense was punishable by death or a term of

imprisonment exceeding one year. Sufficient evidence

supports that finding here. For the reasons stated in this

opinion and in a concurrently filed memorandum disposition,

we affirm Olson’s conviction.

AFFIRMED.

HURWITZ, Circuit Judge, concurring in part and concurring

in the result:

This case does not turn on whether the government must

prove in a misprision prosecution under 18 U.S.C. § 4 that the

defendant knew the underlying offense was a felony. As the

majority correctly concludes, the evidence at trial sufficed for

a misprision conviction even if the government bears that

burden of proof.
18 UNITED STATES V. OLSON

The majority’s interpretation of the statute may be

correct. But, I would leave such analysis for another day, in

a case in which it matters to the outcome. See Whitehouse v.

Ill. Cent. R. Co., 349 U.S. 366, 372–73 (1955) (“These are

perplexing questions. Their difficulty admonishes us to

observe the wise limitations on our function and to confine

ourselves to deciding only what is necessary to the

disposition of the immediate case.”); PDK Labs. Inc. v. DEA,

362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring

in part and concurring in the judgment) (noting “the cardinal

principle of judicial restraint” that “if it is not necessary to

decide more, it is necessary not to decide more”).