                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,               No. 15-30022
          Plaintiff-Appellee,
                                        D.C. No.
             v.                   3:13-cr-00093-TMB-1

KAREN B. OLSON,
       Defendant-Appellant.              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), Assistant United 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 Flores-
Figueroa 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 statutory construction 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 Flores-
Figueroa 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 of the 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”).
