Tucker v. United States, 15539.

Citation251 F.2d 794
Decision Date17 January 1958
Docket NumberNo. 15539.,15539.
PartiesForrest Silva TUCKER, Appellant, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Forrest Silva Tucker, in pro. per.

Herbert E. Selwyn, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Louis Lee Abbott, Leila F. Bulgrin, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before BONE, ORR and CHAMBERS, Circuit Judges.

BONE, Circuit Judge.

Appellant was indicted, tried before a jury and convicted for a violation of Section 751 of Title 18 U.S.C.A. Section 751 reads as follows:

"Whoever escapes or attempts to escape from the custody of the Attorney General or his authorized representative, or from any institution in which he is confined by direction of the Attorney General, or from any custody under or by virtue of any process issued under the laws of the United States by any court, judge, or commissioner, or from the custody of an officer or employee of the United States pursuant to lawful arrest, shall, if the custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any offense, be fined not more than $5,000 or imprisoned not more than five years, or both; or if the custody or confinement is for extradition or by virtue of an arrest or charge of or for a misdemeanor, and prior to conviction, be fined not more than $1,000 or imprisoned not more than one year, or both. June 25, 1948, c. 645, 62 Stat. 734."

The gravamen of the charge laid in the indictment is that appellant "who was then and there in the custody of the Attorney General of the United States and his authorized representative by reason of the defendant's conviction in the United States District Court of an offense, namely: bank robbery, a felony, did escape and attempt to escape from such custody." The offense in question is charged to have occurred on or about November 5, 1956 in Los Angeles County, California.

Appellant had been taken to Los Angeles, California. At the time of the events here narrated, he was (according to his brief) serving a term of 25 years imprisonment in Alcatraz penitentiary on his conviction of armed robbery, having been committed to that federal penal institution on or about May 20, 1953. His removal to Los Angeles was to secure his testimony in a matter then pending in the United States District Court for the Southern District of California, and his removal was effected under a writ of habeas corpus ad testificandum, the validity and regularity of which are not questioned on this appeal.

The evidence at trial is before us in a lengthy record provided at government expense. The evidence introduced by the government established, or tended to establish, the following facts.

While being held in Los Angeles, appellant was detained in the Los Angeles County Jail. Los Angeles County had a then unexpired and still effective contract with the United States Bureau of Prisons to detain and care for federal prisoners in its County Jail while (as in this case) such a prisoner is being held in Los Angeles.1

This contract had been executed by the United States Department of Justice through its Bureau of Prisons (which is a part of the United States Department of Justice) and had been approved by the United States Marshal for the Southern District of California. It had also been adopted by the Board of Supervisors for the County of Los Angeles. Facts in evidence at trial also established that the United States Marshal's Office for the Southern District of California operates within the United States Department of Justice under the direction and supervision of the Attorney General of the United States.

The evidence also shows that under the said contract, and while acting under such direction and supervision, the said United States Marshal placed appellant in the Los Angeles County Jail. The above mentioned contract, and the attached regulations (see footnote 1) do not provide or require that the United States Marshal or his deputies should be stationed in the County Jail to there personally oversee every or any aspect of appellant's detention since the jail was operated under supervision of the Sheriff of Los Angeles County. Under the contract and attached regulations, it was the responsibility of the said Sheriff to "keep the prisoner in safe custody." And, as indicated in footnote 1, the said contract (and attached regulations) with Los Angeles County provides for medical care.

While being held in the Los Angeles County Jail, appellant complained of and suffered from a painful physical ailment and made several visits to the so-called "Jail Hospital" located in the jail itself. Because of the apparently serious character of appellant's physical trouble, the jail doctor directed that appellant be sent to the Los Angeles County General Hospital for further study in regard to possible prostatitus or uretal calculus. This procedure was in accord with the terms of the contract. (In this connection the evidence shows that the Los Angeles County "Jail Hospital" could provide only minor medical attention for jail inmates.) Based upon this advice and directive from the jail doctor, appellant was taken by Los Angeles County Deputy Sheriffs to the Los Angeles County General Hospital on November 4, 1956, for an examination. (He had also been taken to this hospital on previous occasions for a physical examination.)

Evidence established that while the Los Angeles County Jail was under the general control of the County Sheriff, one of his deputies was charged with the supervision of personnel and of the operation of this jail.

Facts in evidence show that when (as here) it is necessary that a federal prisoner held in the County Jail be removed to the Los Angeles County General Hospital for examination and/or treatment, such a prisoner is there lodged in what is designated as the "Los Angeles County Jail Unit" in the said hospital. This "unit" was and is a place of imprisonment in the hospital, that is to say, a "lock-up" or "prison ward" in an area on the 13th floor of the hospital building. Like the regular county jail this "unit" has sleeping facilities but apparently is not equipped with such highly technical facilities as x-ray equipment.

The evidence also established that the Los Angeles County Board of Supervisors had, by formal ordinance, designated that a portion of the Los Angeles County Hospital "is considered a portion of the Los Angeles County Jail." The "portion" on the 13th floor, so made a Los Angeles County Jail Unit by ordinance, is the County Jail facility provided for federal prisoners just above mentioned.

The evidence in this case establishes beyond a shadow of doubt that appellant not only claimed that he was, but actually was, for several days, plagued by certain symptoms which clearly indicated that he might be, or probably was, suffering from a dangerous physical ailment. It was this serious condition that caused his removal to the County General Hospital so that he would be in an institution where facilities for proper emergency medical and x-ray examination were available and close at hand. In the absence of the technical service there available appellant might have died or suffered irreparable harm.

On the morning of November 5, 1956, while appellant was in bed in the "Jail Unit" of the Los Angeles County General Hospital, he was given certain preliminary medication to prepare him for a required x-ray examination in the "Cystoscopic Clinic" of the hospital which was located on the 4th floor. For this purpose it was necessary to take appellant to said "clinic" where an examination would or might reveal the exact nature of his physical disorder. To remove him to this "clinic," a county-employed hospital orderly placed him on a conventional hospital "stretcher." He was then wearing an ordinary hospital gown and his trousers. The orderly had been assigned for duty in the "Jail Unit" or portion of the hospital.

The orderly "wheeled" the stretcher over to an elevator door located just in front of the "Jail Unit" where a deputy sheriff of Los Angeles County handcuffed him. The stretcher was then rolled into the elevator by the orderly and the elevator lowered to the "clinic" (4th) floor. Later on that floor, and while the stretcher was being pushed down a hall toward the "clinic" door, appellant abruptly jumped from the stretcher and ran down a nearby hallway toward a stairway. The orderly gave chase, grabbed appellant, and a scuffle ensued between the two men on the stairway. Appellant forcibly broke away from the orderly and from all other pursuers and finally managed to run out of the hospital building into the street. He there took possession of a nearby car in which the owner had left ignition keys, and drove off. He was later captured by state officers on the same day a few miles south of Bakersfield, California, while driving north in the stolen car. When seized by these state officers he was still wearing his handcuffs.

Appellant's Contentions

Appellant raises no question here concerning the validity of his "custody" in the County Jail or while in the County "Jail Unit" in the hospital. Nor does he object to the rulings of the trial court on questions of admissibility of evidence at trial, or any of the court's instructions to the jury. He assures us that his sole ground for appeal is that there was insufficient evidence to prove beyond a reasonable doubt that, at the time of the alleged escape (on the 4th floor) he was "in the custody of the Attorney General of the United States or his authorized representative."

In support of this single contention, his argument is two-pronged: The facts in evidence do not (1) sufficiently prove that the Attorney General authorized the Sheriff of Los Angeles County to have custody of appellant, and (2) there was no proof that the Assistant Director of the Bureau of Prisons was authorized by the Attorney General of the United...

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