UNITED STATES DISTRICT COURT
______________ DISTRICT OF TEXAS
_______________ DIVISION

UNITED STATES OF AMERICA	     §
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V.	                                                            §		NO. _______________
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MOTION TO DISMISS COUNT TWO OF THE INDICTMENT FOR FAILURE TO STATE AN OFFENSE

TO THE HONORABLE _________________, JUDGE OF THE UNITED STATES DISTRICT COURT FOR THE __________ DISTRICT OF TEXAS:

	COMES NOW _____________,  counsel for Defendant _____________ and moves to dismiss Count Two of the indictment, pursuant to the Fifth Amendment to the United States Constitution and Federal Rule of Criminal Procedure 12(b)(2), on the ground that the count fails to charge an offense against the United States.  In support of his Motion, _________ respectfully shows this Court the following facts and circumstances:
I
	_________ is charged by indictment with being an accessory after the fact under 18 U.S.C. § 3 (count one), misprision of a felony under 18 U.S.C. § 4 (count two),  false statement to a federal agent under 18 U.S.C. § 1001 (count three), and obstruction of justice under 18 U.S.C. § 1503 (count four) all in relation to a Hobbs Act robbery and federal arson offenses. _________ moves to dismiss Count Two of the indictment because it fails to state an offense against the United States. 
II
	_________ is charged in Count Two with misprision of a felony in violation of 18 U.S.C. § 4.  The essential elements of the misprision offense include the following: (1) a federal felony was committed; (2) the defendant had knowledge that the felony was committed; (3) the defendant failed to notify authorities of the felony; and (4) the defendant took an affirmative step to conceal the felony. United States v. Adams, 961 F.2d 505, 508 (5th Cir. 1992); see also United States v. Davila, 698 F.2d 715, 717 (5th Cir.1983).  An allegation of a mere failure to report a felony is not sufficient. Violation of the misprision statute requires some affirmative act designed to conceal from authorities the fact that a felony has been committed.  Adams, 961 F.2d 505, 508–09; Davila, 698 F.2d 715, 717; United States v. Hodges. 566 F.2d 674, 675 (9th Cir. 1977).  
III
	The Government alleges in Count Two that ___________ “having knowledge of a felony offense cognizable by a court of the United States. . . did knowingly conceal this information and did not as soon as possible make known the same to some judge, grand jury, or other United States law enforcement authority[.]” An allegation of “knowingly concealing” is an insufficient substitute for an allegation of a specific, affirmative act to conceal.  See Adams, 961 F.2d 505, 509 (finding insufficient information which stated that defendant knowingly concealed money laundering offense, but failed to allege any facts indicating that Adams took affirmative step to conceal crime).  Because the count omits an allegation of an affirmative act to conceal, it fails to state a misprision offense.  Id.  As such, count two should be dismissed. 
PRAYER
	WHEREFORE, premises considered, Defendant respectfully requests that this Honorable Court dismiss count two of the indictment, on the ground that it fails to state an offense against the United States.
						Respectfully submitted.
					Attorney for Defendant

CERTIFICATE OF SERVICE
	I certify that I served a copy of the foregoing Defendant's Motion to Dismiss Count Two of the Indictment for Failure To State an Offense on the United States Attorney for the ________ District of Texas (Attn: Assistant U.S. Attorney), by mailing it to his office at United States Attorney’s Office, ____________on _______________, 20__. 			

						______________________________________ 
						Attorney for Defendant

 	UNITED STATES DISTRICT COURT

___________ DISTRICT OF TEXAS

_______________ DIVISION

UNITED STATES OF AMERICA	§
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V.						§	CAUSE NO. ______________
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O R D E R

	On this date came on to be considered Defendant's Motion to Dismiss count one of the indictment.  The Court is of the opinion that the count one fails to state a charge against the United States, and, therefore, it must be dismissed.  It is therefore
	ORDERED that Defendant’s Motion to Dismiss Count One of the Indictment is hereby GRANTED.  It is ORDERED that Count One of the indictment in this case is DISMISSED.
	SIGNED and ENTERED this___day of ________________, 20____.

						
						United States District Judge