McCullough v. United States

Decision Date29 November 1966
Docket Number18390.,No. 18449,18449
Citation369 F.2d 548
PartiesForrest Dale McCULLOUGH, Jr., Appellant, v. UNITED STATES of America, Appellee. Ronald D. WYATT, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

J. Whitfield Moody, Executive Director of The Legal Aid and Defender Society of Greater Kansas City, Kansas City, Mo., for appellants.

Bruce C. Houdek, Asst. U. S. Atty., Kansas City, Mo., for appellee. F. Russell Millin, U. S. Atty., Kansas City, Mo., was with him on the brief.

Before VAN OOSTERHOUT and GIBSON, Circuit Judges, and NICHOL, District Judge.

FLOYD R. GIBSON, Circuit Judge.

This consolidated appeal is from separate and independent judgments of conviction for escape in violation of Title 18, U.S.C. § 751, rendered by different divisions of the United States District Court for the Western District of Missouri. Since the identical question of law is presented in each appeal, this Court, upon request of the appellants, ordered the cases combined for the purpose of appeal.

The evidence in these cases is uncontradicted. Appellant Wyatt arrived in Kansas City, Missouri, on February 18, 1966, in accordance with a written order from the Bureau of Prisons directing his transfer from the Federal Reformatory in Englewood, Colorado, where he was an inmate, to the Kansas City Pre-Release Guidance Center. Appellant McCullough arrived in Kansas City the same day, February 18, pursuant to an order transferring him from the Federal Reformatory in El Reno, Oklahoma to the Kansas City Pre-Release Guidance Center.

The Kansas City Pre-Release Guidance Center is part of the Bureau of Prisons. It is located in the Downtown Branch of the YMCA in space leased from the YMCA by the United States Bureau of Prisons, and is entirely staffed by Bureau of Prison personnel. The Center is designed as a "halfway house" for the rehabilitation of youthful offenders. In the words of a United States Senate Report:

"The youths at the centers, who remain in the custody of the Attorney General, work at jobs obtained for them in the surrounding community and receive counsel and such practical assistance as food and shelter while becoming reestablished in the community before their releases on parole become effective." (emphasis supplied), 1965 U.S. Code Congressional and Administrative News, Vol. 2, Senate Report No. 613, p. 3078.

By a system of signing in and out, the inmates at the Center were permitted to leave the Center for specified periods of time. They were, however, expected and instructed to return within a designated hour.

Four days after arriving at the Kansas City Center, on February 23, 1966, appellant Wyatt signed out but failed to return at the designated time. He was apprehended some days later away from the Center, indicted for escape in violation of 18 U.S.C. § 751, tried without a jury before the Honorable William R. Collinson, found guilty by the Court and sentenced to one year imprisonment.

Appellant McCullough stayed at the Center until March 20, 1966. On that day he signed out, failed to return, and was eventually arrested in the state of California. McCullough, too, was charged with violating 18 U.S.C. § 751. He was tried without a jury before the Honorable Elmo B. Hunter, found guilty by the Court and sentenced to one year's imprisonment.

Though the facts are admitted, appellants contend that they do not constitute escape within the strict interpretation of this statute, as the Pre-Release Guidance Center had not been duly designated by the Attorney General as a pre-release facility in compliance with § 4082, Title 18, U.S.C. We find no merit in appellants' contention.

Title 18, Section 751 of the United States Code provides in part:

"(a) Whoever escapes or attempts to escape from the custody of the Attorney General or his authorized representative, or from any institution or facility in which he is confined by direction of the Attorney General * * be fined not more than $5,000 or imprisoned not more than five years, or both; * * *."

Both of the appellants were duly confined to the Kansas City Pre-Release Guidance Center by written orders of the Bureau of Prisons, an agency of the United States Department of Justice, headed by the Attorney General. They were under the supervision and custody of the Attorney General there, the same as if they had been confined to a more conventional prison or reformatory. In clear violation of the expressed rules of the Center they failed to return at the proper time and fled from the custody of the Attorney General. As we stated on the same facts in Nace v. United States, 334 F.2d 235, 236 (8 Cir. 1964):

"Whatever may have been the privileges which he appellant was permitted to enjoy, he
...

To continue reading

Request your trial
23 cases
  • U.S. v. Eaglin
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 10, 1977
    ...v. Hollen, 393 F.2d 479 (4th Cir. 1968); United States v. Frankenberry, 387 F.2d 337, 338 (2d Cir. 1967); McCullough v. United States, 369 F.2d 548, 549-50 (8th Cir. 1966). The custody of the Attorney General continues despite the unsupervised nature of the temporary release from confinemen......
  • State in Interest of M. S.
    • United States
    • New Jersey Superior Court — Appellate Division
    • May 10, 1974
    ...also United States v. Rudinsky, 439 F.2d 1074 (6 Cir. 1971); United States v. Coggins, 398 F.2d 668 (4 Cir. 1968); McCullough v. United States, 369 F.2d 548 (8 Cir. 1966); Nace v. United States, 334 F.2d 235 (8 Cir. 1964); People v. Labrum, 25 Cal.App.3d 105, 101 Cal.Rptr. 602 (D.Ct.App.197......
  • State v. Smith
    • United States
    • Hawaii Supreme Court
    • August 21, 1978
    ...and association. He was therefore in custody within the purview of 18 U.S.C. § 751. 439 F.2d at 1076-1077. See McCullough v. United States, 369 F.2d 548 (8th Cir. 1966); Nace v. United States, 334 F.2d 235 (8th Cir. In Smith v. State, supra, the defendant claimed that his failure to return ......
  • State v. Paris
    • United States
    • Hawaii Supreme Court
    • August 8, 2016
    ...v. Rudinsky, 439 F.2d 1074, 1076 (6th Cir.1971) ; United States v. Coggins, 398 F.2d 668, 668 (4th Cir.1968) ; McCullough v. United States, 369 F.2d 548, 549 (8th Cir.1966) ; Nace v. United States, 334 F.2d 235, 235 (8th Cir.1964) ; People v. Labrum, 25 Cal.App.3d 105, 101 Cal.Rptr. 602, 60......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT