Richard Baumgartner, a Tennessee state judge, took up paying a former defendant in his court (Deena Castleman) to buy drugs for him. (He also had a sexual relationship with her.) He was ultimately convicted of “misprision of felony.” The federal definition of misprision requires that, “(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.” Here’s Baumgartner’s misprision (in the court of appeals’ view, see United States v. Baumgartner (6th Cir. Sept. 24, 2014)) (some paragraph breaks added throughout the quotations):

Castleman … found herself facing criminal charges in Knox County for aggravated burglary and was scheduled for a preliminary hearing before Judge Andrew Jackson of the Knox County General Sessions Court in February 2010. Judge Jackson testified that, prior to the hearing, Baumgartner came to speak with him about Castleman:

I was on my way to court, and I was approached by Richard Baumgartner, who said he had this woman who was in drug court, was doing very well, was turning her life around, and that she picked up some new charges. He didn’t think these charges were any good and wanted me to take a look at the case.

… Two months later, Baumgartner tried to arrange for Castleman to stay at the YWCA’s transitional housing unit. When the YWCA housing director suspected that Castleman was on drugs, he directed that she be tested. Baumgartner tried to assist Castleman in her effort to use someone else’s urine sample. When that sample tested positive for drug use, Baumgartner called the housing director and said that Castleman had actually passed the drug test. The director did not believe Baumgartner and did not admit Castleman into the housing unit….

Baumgartner also lied to Tennessee Juvenile Court Magistrate Judge Stan Briggs, who issued a warrant for Castleman’s arrest for contempt for failure to pay child support. In August 2010, Baumgartner told Briggs that he was “working with” Castleman in criminal court, and Briggs therefore vacated the arrest warrant and released Castleman on her own recognizance….

Finally, in October 2010, Baumgartner spoke about Castleman to Jeffrey Blevins, the assistant district attorney who was prosecuting her for burglary, larceny, drug, and DUI charges, the exact nature of which is unspecified in the record. As Blevins put it, Baumgartner said that Castleman was or had been in his drug court, “what a fine drug court person she was, she was having a little bit of trouble, and that he would like me to do for her what I could. And I was somewhat surprised at that.”

The court of appeals concluded that this concealment-by-telling-lies was indeed misprision. First, it concluded that the statute isn’t limited to statements “made to federal authorities.”

An example may help illustrate the point. If a man grows marijuana on his farm with the intent to distribute, he commits a felony under federal law. If he builds a barbed-wire fence around the farm to prevent the felony’s discovery, he is guilty of misprision. And his guilt does not depend on whether, for example, he was already under investigation by federal agents at the time that he built the fence. Nor does it depend on whether the government could prove that it would likely have discovered the farmer’s operation were it not for the fence. The statute prohibits “concealment,” not “successful concealment” or “concealment from federal authorities.”

The parties would not appear to dispute these points. If instead of building a fence, the farmer simply told all visitors to his farm that he was growing horsemint, not marijuana, he would likewise be guilty of misprision. Just as he built the fence to conceal the felony in the first example, in the second example, he made statements to conceal the felony. And just as it did not matter whether federal authorities would ever have discovered his marijuana crop in the absence of the fence, it does not matter whether they would have discovered it had he not lied to his non-federal-agent visitors. In other words, as mentioned, there is no basis in logic or in the statute for distinguishing between physical acts of misprision and verbal acts….

In addition, as the government points out, several cases in other circuits have affirmed convictions where the statements concealing the felony were not made to federal authorities or where the act of concealment did not involve them. These cases include United States v. Walkes, 410 F. App’x 800 (5th Cir.2011) (affirming defendant’s conviction where his acts of concealment consisted of falsely telling his employees that the company’s Medicare and Medicaid billing practices were legal); United States v. Robinson, 344 F. App’x 990, 991 (5th Cir.2009) (affirming defendant’s conviction where his act of concealment consisted of agreeing to be billed by a third-party credit-card processor identified as “ADSOFT” for his child-pornography images, “which necessarily obscured the illicit nature of the transaction”); United States v. White Eagle, 721 F.3d 1108 (9th Cir.2013) (affirming defendant’s conviction for misprision of a loan-fraud scheme where defendant falsely told a private citizen that the citizen’s deceased wife had outstanding loans in her name that had to be repaid); and United States v. Sessions, 2000 WL 1456903, at (8th Cir. Oct. 2, 2000) (affirming defendant’s misprision conviction where defendant misled state or local police officers about the burglary of a gun store).

And in this instance, the court says, the statements did indeed constitute concealment:

Baumgartner knew about the conspiracy [between Castleman and her suppliers and others] …. [And] Baumgartner took affirmative steps to conceal the actual commission of the felony. The government, at closing argument, explained how the evidence at trial showed that Baumgartner concealed the felony:

[Baumgartner] concealed and covered up Deena Castleman’s crimes. Every time he approached these people and painted this false picture of who Deena Castleman was, it was to deflect attention away from Deena Castleman.

What was his reason for doing that? Well, one, he knew that he wanted access to Deena Castleman because, when Deena Castleman is behind bars, she can’t take his money to go get drugs for him. When Deena Castleman is behind bars, she can’t perform oral sex on him.

But there’s another reason why he had to conceal and cover up what Deena Castleman was really doing and who she really was criminally. It exposed him. He was at risk, because if people start asking questions and reports start being made and the gentlemen with the TBI [Tennessee Bureau of Investigation] get involved, that’s not good for him, that is not good for the Defendant.

Because several things will happen, things that he does not want to have happen. When law enforcement gets involved and people start asking questions, that sex is going to stop, the pills are going to stop, perhaps most importantly, he becomes the target of a criminal investigation.

He could not have that. That’s why he lied, that’s why he took the initiative to go seek all these people out. Again, we wouldn’t be here if he had kept his mouth shut, because the law doesn’t require people to notify the authorities when crimes have been committed. But the law does require you to keep from covering up other people’s crimes. That’s why we’re here.

… [T]he question is not whether the content of the statements concealed the felony; rather, it is whether his making the statements — his efforts to protect Castleman — concealed the felony. And a reasonable juror could conclude that they did.

All of the statements proved against Baumgartner were designed to keep Castleman out of the clutches of law enforcement and to keep her placated with respect to Baumgartner’s relationship with her. In these respects, each statement could have had the effect of making the detection of the conspiracy more difficult. If Castleman were treated by law enforcement and the transitional housing director as a “good drug court candidate” who was “turning her life around,” it would have been considerably less likely that she would have been investigated further and connected with a wide-ranging drug conspiracy — one that involved Baumgartner himself. Whether he in fact intended such concealment was a matter reasonably left for the jury to determine. Based on the evidence adduced at trial, a rational juror could have agreed that concealment occurred and was intended.

The court also concluded that the statute didn’t violate the First Amendment, even though some lies do have some First Amendment protection (under Alvarez, the Stolen Valor Act).

“[C]ontent-based restrictions on speech have been permitted … when confined to the few historic and traditional categories of expression long familiar to the bar.” Alvarez, 132 S.Ct. at 2544 (quotation and alteration marks omitted)…. speech that constitutes misprision of a felony appears to qualify as one of these “historic and traditional categories of expression” not protected under the First Amendment. See Branzburg, 408 U.S. at 697 (noting that concealment of a crime is not afforded First Amendment protection in light of “our history and that of England”). Baumgartner provides no historical or precedential support for distinguishing, in this context, between speech made to federal authorities and that made to local officials or private citizens. And indeed, it is doubtful that any such support exists, since at common law, the mere failure to report a crime constituted misprision, even without an affirmative act of concealment.

Judge Clay, dissenting in part, disagreed as to the scope of the misprision statute:

The government urges, and the majority accepts, that some combination of deceit and criminality can add up to concealment if you look at it from the right angle. This interpretation gives the misprision statute a stunningly broad reach. The government proved that Defendant lied and was tangled up in drugs. But the government did not prove that Defendant concealed the underlying felony — the narcotics conspiracy helmed by Deena Castleman. I would vacate Defendant’s conviction on all counts, not just count 1, and therefore respectfully dissent in part….

I construe the concealment element of the misprision statute somewhat more narrowly than the majority.

Concealment cannot exist in a vacuum. If one conceals a fact — that is, if someone “prevents or hinders the discovery of something,” Black’s Law Dictionary 282 (7th ed.1999), or “prevent[s] disclosure or recognition of” something, Webster’s Third New Int’l Dictionary 469 (1993) — the fact is concealed from someone. The question this case presents is “from whom?” A reader, considering the fact that Defendant lied to judges and other persons of authority, might well think that the government’s answer to that question is “officials of some form or another.” But the government’s theory of the concealment element is far broader and vaguer. At oral argument on May 9, 2014, this Court and the government engaged in the following colloquy:

Q: By lying to various people about various things, you keep [Castleman] happy, and that conceals the conspiracy?

A: Yes, on these facts….

Thus, according to the government, Defendant’s lies did not in and of themselves constitute “concealment.” Rather, the lies were the mechanisms to keep Castleman happy, and it was her happiness that effectuated the concealment. In other words, Defendant accomplished his concealment by appeasing the very person who had committed the underlying felony.

The ultimate target of the concealment is presumably some unknown official whom Castleman might have approached (waiving her Fifth Amendment privilege against self-incrimination in the process), had Defendant not kept her out of prison. This is a triple-bank-shot interpretation of concealment.

The majority’s construction of the statute is even broader than the government’s. To show the stunning reach of the majority’s interpretation, we need only continue the tale of the lying marijuana grower described in the majority opinion. Suppose that one of the visitors to the farm is the farmer’s brother-in-law, Bill. The farmer feeds the horsemint line to Bill, but Bill knows marijuana when he sees it, and can deduce from the size of the farmer’s plot that the end product is not meant purely for personal use.

When Bill returns home, his wife asks him how the farmer’s garden is growing. Bill, not wanting to get into an extended discussion with his wife about her brother’s marijuana, tells her that the farmer seems to have a successful horsemint crop. According to the majority’s logic, unless Bill quickly finds a federal prosecutor or judge and reveals the farmer’s crime, Bill himself is guilty of misprision of felony.

[Footnote: The majority’s hypothetical takes another wrong turn when it suggests that if a marijuana grower erects a fence to keep away prying eyes, that act makes the grower guilty of misprision. In order to be guilty of misprision, a defendant must both conceal a felony and also fail to notify federal authorities of that crime. The misprision statute “would be unconstitutional under the Fifth Amendment if, and to the extent, it required a defendant to report her own criminal conduct to the authorities.”]

Thus does misprision extend the U.S. criminal code into everyday conversations between a husband and wife who have committed no crime apart from speech about others’ misdeeds. Cf. Arthur Andersen, 544 U.S. at 704 (construing the witness tampering statute away from possibly criminalizing “a wife who persuades her husband not to disclose marital confidences”); United States v. Worcester, 190 F.Supp. 548, 566 (D.Mass.1961) (Wyzanski, J.) (“To suppose that Congress reached every failure to disclose a known federal crime, in this day of myriad federal tax statutes and regulatory laws, would impose a vast and unmeasurable obligation. It would do violence to the unspoken principle of the criminal law that as far as possible privacy should be respected.” (quotation marks omitted)). I fail to see how this construction would not “encourage arbitrary and discriminatory enforcement” of the misprision statute, and thus run afoul of the vagueness doctrine.

The dissent argues that misprision should instead be limited to situations where there is “[s]ome nexus … between the concealment of the principal’s crime and an investigation or proceeding (whether state or federal) related to that criminal conduct.,” for instance if “[t]he defendant … know[s] about an investigation, or reasonably should know about an investigation,” or if “but for the defendant’s concealment, an investigation or proceeding would have commenced.”