By Donald Scarinci | January 29th, 2014 - 10:20am
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For people like Hoboken Mayor Dawn Zimmer, can it be a crime to fail to report a crime?

Many say that Dawn Zimmer acted courageously when she came forward to report her side of a conversation with the Lieutenant Governor threatening to withhold public funds if a developer did not get a project approved. Many, that is, other than friends of the Governor and Lt. Governor.  They call Dawn Zimmer a liar. 

Some question why it took so long for the Mayor to come forward.  Dawn Zimmer said that if she had come forward earlier, no one would have believed her.  She is probably right.  Until the Bridgegate scandal broke, no one would have believed her and she would have gone the way of Lou Manzo and Joe Ferriero.

Lou Manzo, remember, was one of those indicted in the Dweck sting memorialized by the Margolin/Sherman book, “The Jersey Sting“.  Manzo’s allegations that Chris Christie engaged in targeted political prosecutions to further his political career were branded as “crazy.” It was the same for Joe Ferriero, former Bergen County Democratic Chairman, who was indicted and ultimately acquitted for a “crime” that not even his most bitter enemies quite understood.

However, is reporting a crime eight months after it occurred sufficient to avoid prosecution for failure to report a crime?

Mayor Zimmer said that in addition to no one believing her, she did not report the crime because she was hoping to get Hurricane Sandy money for Hoboken.  If a vender said they did not report a kickback request because they were hoping to get their public contract renewed and then came forward to report the crime after they were reappointed but before they paid the kickback would it be any different?

While New Jersey does not have a mandatory reporting law with regard to public corruption, a little known federal law could provide support for an indictment, should prosecutors be so motivated. Misprision of a felony (18 U.S.C. § 4) involves the concealment of a felony, even in the absence of giving any degree of support to the felony.  

On the surface, the statute, which dates back to English common law, would seem to fit in this case. Under New Jersey’s public corruption laws, it is a felony for a public official to directly or indirectly offer, confer or agree to confer or solicit, accept or agree to accept a benefit as consideration for official action. Therefore, Zimmer’s allegations, if proven, would seem to suggest a felony has been committed.

However, the crux of any potential case is whether Zimmer actively concealed the bribery attempt. Under modern interpretations of the misprision of a felony statute, the mere failure to report a known felony would not violate 18 U.S.C. § 4. Rather, Zimmer must have taken “affirmative action to conceal the crime” to sustain a conviction of misprision of a felony (see United States v. Johnson, 546 F.2d 1225, 1227 (5th Cir. 1977)).

Interestingly, Zimmer could face greater legal troubles if the incident occurred in another state. While New Jersey does not have a specific law on the books that requires public officials to report bribery, other states do, including Alaska, Illinois, North Carolina, and Oklahoma. For instance, in Illinois, any public officer, public employee, or juror who fails to report bribery to the local state's attorney, or in the case of a state employee to the Department of State Police, commits a class a misdemeanor.

In New York, Gov. Andrew M. Cuomo proposed legislation last year that would make it a misdemeanor for any public official or employee to fail to report bribery. The proposal is still under consideration.

 

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

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