U.S. v. McKim

• Decision Date: 17 March 1975
• Docket Number: No. 74--1335,74--1335
• Citation: 509 F.2d 769
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eugene Cecil McKIM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 769

509 F.2d 769

UNITED STATES of America, Plaintiff-Appellee, v. Eugene Cecil McKIM, Defendant-Appellant.

No. 74--1335.

United States Court of Appeals Fifth Circuit.

March 17, 1975.

Oscar J. Pena, Laredo, Tex. (Court-appointed), for defendant-appellant.

Anthony J. P. Farris, U.S. Atty., Daniel V. Alfaro, James R. Gough, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before RIVES, WISDOM and COLEMAN, Circuit Judges.

WISDOM, Circuit Judge:

Eugene Cecil McKim appeals his conviction for escape from federal custody in violation of 18 U.S.C. § 751(a). ¹ The indictment charged that he had willfully escaped from the Jim Hogg County Jail in Hebbronville, Texas. ² The evidence showed that officers of the United States Border Patrol arrested McKim near Hebbronville on September 9, 1972, while in possession of about sixty pounds of marijuana. He was turned over to a United States Customs officer, who lodged him in the Jim Hogg County Jail in accordance with a contract between the United States Government and the local authorities for the temporary detention of federal prisoners. Two days later and before he could be brought before a United States magistrate McKim and a cellmate escaped through a large hole they had managed to make in the wall of the jail. McKim was rearrested the next day.

He was not, however, tried for the offense of escape from federal custody until well over a year after these events. Instead, he was tried and convicted of importation, possession, and conspiracy to import marijuana in violation of 21 U.S.C. §§ 952(a), 841(a)(1), and 960(a)(1). This conviction was reversed on appeal on the ground that the border patrol agents lacked reasonable suspicion or probable cause for stopping and searching McKim's automobile. United States v. McKim, 5 Cir. 1973, 487 F.2d 305. ³

The opinion reversing the marijuana conviction was rendered November 12, 1973; the indictment for escape was filed on November 26, 1973. During the course of oral argument in this Court, counsel for the Government conceded that the decision to seek this indictment from the grand jury was made because the Government had not prevailed in the earlier appeal. McKim had been indicted twice before for the offense of escape, and on each occasion the district court granted the Government's motion to dismiss the indictment under Fed.R.Crim.P. 48(a) without the consent of the defendant.

McKim raises five contentions in this appeal. He says, first, that his conviction should be set aside because he was denied a speedy trial. Second, he contends that the evidence was insufficient to convict because it did not prove what he asserts are two necessary elements of the offense of escape. Third, he argues that the indictment was fatally defective in that it failed to allege that the arrest establishing the custody from which he escaped was for a felony. Fourth, he says that the trial court incorrectly charged the jury in that it omitted any reference to what he maintains is the necessity of proving, under 18 U.S.C. § 751(a) and the indictment, that the arrest was lawful and that it was for a felony. Finally, he contends that, in the event we uphold his conviction, the maximum sentence for escape the trial court imposed should run either from the date of his apprehension, September 12, 1972, or at least from the date this Court reversed his conviction on the marijuana charge, rather than from the date sentence was imposed.

We have concluded that McKim's conviction must be reversed.

I.

The Supreme Court considered the standards to be applied to determine whether an accused's Sixth Amendment right to a speedy trial has been denied in Barker v. Wingo, 1972, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. The Court rejected an approach focused primarily on the delay between indictment and trial, and declined to hold that an accused's failure to demand a speedy trial constituted a 'waiver' of the right. It noted, instead, that both the delay involved and assertion or nonassertion of the right were only factors to be weighed with other relevant factors in a 'balancing test' of the conduct of the prosecution and the defense, along with the reason proffered for the delay and the prejudice, if any, to the defendant. ⁴

'(T)he Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an 'accused," the Supreme Court noted in United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468. Marion involved a delay of nearly three years between the conclusion of the alleged criminal scheme that was the subject of the prosecution and the return of the indictment. The Court reversed the dismissal of the indictment, stating that there is no constitutional right to a speedy indictment; prejudice must be shown. In Marion no actual prejudice had been proved or even asserted, and, although actual prejudice stemming from prosecutorial delay might be demonstrated at trial, the appellees' due process claims were 'speculative and premature.' 404 U.S. at 326, 92 S.Ct. at 466, 30 L.Ed.2d at 482.

Barker and Marion lead us to conclude that, in the circumstances of this case. McKim was not denied a speedy trial. He has made no showing--indeed, has not attempted to show--actual prejudice. The first indictment was filed on January 29, 1973. The trial on the third indictment was held on January 22, 1974, so that the actual delay between the time of the first indictment and the trial, while substantial, is not so great as to give it decisive weight. The troublesome fact here is that the indictment was filed twice, twice dismissed without consent of the defendant, and filed a third time, as Government counsel conceded in this Court, because the Government did not prevail in McKim's appeal of his marijuana conviction. To be sure, the Government's conduct here is distinguishable from the 'deliberate attempt to delay the trial in order to hamper the defense' that the Court in Barker noted should be 'weighed heavily' against the Government. 407 U.S. at 531, 92 S.Ct. 2182, 2192. But that is the most favorable thing that can be said of it. The prosecutor's motive in seeking an indictment in the first place may be irrelevant to the speedy trial issue, but his motive in twice obtaining indictments and twice moving to dismiss them is relevant to the inquiry whether the delay in bringing the defendant to trial was justified.

Nevertheless, there is no showing of prejudice to the defendant, the third indictment was filed within the statute of limitations, and the trial was had within two months. We feel compelled, therefore, to resolve Barker's balancing test in favor of the Government and hold that McKim was not denied a speedy trial.

II.

Because of their interrelation, we will consider together McKim's contentions regarding the sufficiency of the indictment, and the correctness of the court's charge to the jury.

The statute, quoted above, ⁵ provides a maximum sentence of five years or a $5,000 fine or both if the custody or confinement from which the defendant has escaped 'is pursuant to lawful arrest' and is 'by virtue of an arrest on a charge of felony' or a conviction of any offense, but provides a maximum sentence of only one year or fine of $1,000 or both if the custody or confinement is by virtue of a misdemeanor charge, prior to conviction. The indictment in the present case does not state whether the alleged offense leading to the custody was a felony or misdemeanor, a very important distinction here because the defendant had not even been brought before the United States Magistrate. ⁶

In Theriault v. United States, 5 Cir. 1970, 434 F.2d 212, although the indictment charged arrest on the charge of a felony, there was no proof introduced at trial on whether the charge was a felony or a misdemeanor. This Court held that the defendant's three-year sentence must be vacated and that he must be resentenced in accordance with the penalties provided in the statute for escape from custody or confinement on the charge of a misdemeanor. We reasoned that the felony provisions of the statute might be analogized to a statute providing enhanced punishment in cases where specified aggravating circumstances appeared. Noting that courts had sanctioned the imposition of the lesser sentence provided by the statute on remand for resentencing when proof of the aggravating circumstances failed in such cases, we concluded in Theriault that the sentence should be vacated and the case remanded for resentencing under the provisions relating to escape from custody on the charge of a misdemeanor.

In the case before us, the indictment was silent as to the nature of the offense leading to the custody, and the court did not charge the jury at all on the point. There was only a passing hearsay reference to a felony arrest during the course of trial, hardly enough to constitute a basis for a jury finding of guilt beyond a reasonable doubt, particularly when the jury was not even instructed on the point. The proof was sufficient to prove, at most, escape from custody on account of a misdemeanor charge. The appropriate remedy, following Theriault, would be to vacate the sentence and remand for resentencing. This would result in McKim's immediate release, inasmuch as he has been in confinement since September 1972, and in confinement under the judgment of conviction in the present case since January 1974, and the maximum sentence that could be imposed on resentencing would be one year imprisonment.

We must, however, proceed and consider McKim's further contention that his conviction was invalid in any event because the custody from which he escaped was not the result of a lawful arrest. This question would not be mooted by a remand for resentencing, because the trial court might still assess a fine. Moreover, the Supreme Court has held in the...