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Tuesday, June 14, 2016

The Orlando Shooter's Spouse and Misprision of Felony

CNN is reporting that Noor Salman, spouse of the Orlando mass killer, might have known about the attack in advance and failed to report it.  Although federal authorities do not believe she was a co-conspirator (indeed, CNN reports that she discouraged her husband), they are apparently considering "whether to bring charges against her for allegedly failing to report her knowledge of his general plans to carry out some kind of attack" which might include misprision of felony.  I have researched federal misprision; due to a hilarious set of misunderstandings when I was in practice, a prosecutor once good-naturedly suggested that it could be applicable to me.  It turns out that misprision "requires both concealment and failure to disclose. Under it some affirmative act toward the concealment of the felony is necessary. Mere silence after knowledge of the commission of the crime is not sufficient."  United States v. Farrar, 38 F.2d 515, 517 (D. Mass.), aff'd, 281 U.S. 624 (1930).  See also Gabriel D. M. Ciociola, Misprision of Felony and Its Progeny, 41 Brandeis L.J. 697, 722 (2003).  Accordingly, even if she knew of the plan and did not report it, she could not be guilty of this particular offense.

Whether Ms. Salman could be guilty of the 49 murders and many attempted murders as an aider and abetter, if, as reported, she drove her husband to "case" potential massacre sites knowing that he planned a mass shooting, presents a much more difficult question.  Some courts require actual purpose to assist the criminal venture, others hold that knowledge that the conduct will aid and abet the crime is sufficient.  From the 11th Circuit Pattern Jury Instructions (at 62) I am not sure which way the 11th Circuit goes, but the last sentence suggests they take the broader view that knowing assistance is enough: "you must find beyond a reasonable doubt that the Defendant was a willful participant and not merely a knowing spectator."

Posted by Jack Chin on June 14, 2016 at 11:12 PM | Permalink

Comments

A very, very, very minor point: Although you have spelled "misprision" correctly in the body of your post, the title incorrectly refers to "misprison."

Posted by: Bob Rocklin | Jun 17, 2016 10:05:16 AM

Orin,

I agree with the second and third paragraphs of the concurrence/dissent that the decision leaves it somewhat ambiguous because it cites cases and uses language from both lines. Also, Rosemond was to share in the profits of the offense, which, at least in some jurisdictions, is a factor pointing to liability. What do you think?

Jack

Posted by: Jack Chin | Jun 15, 2016 8:20:54 AM

Does Rosemond v. United States (2014) settle the accomplice liability standard, or do read its holding as only about attendant circumstance elements?

Posted by: Orin Kerr | Jun 15, 2016 12:30:56 AM

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