U.S. v. Viger, 75--3253
| Decision Date | 19 February 1976 |
| Docket Number | No. 75--3253,75--3253 |
| Citation | 530 F.2d 846 |
| Parties | UNITED STATES of America, Appellee, v. John Frederick VIGER, Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before CHOY and KENNEDY, Circuit Judges, and WONG, * District Judge.
Appellant Viger appeals from his judgment of conviction that he did 'aid and assist the escape of Alan Bruce Long, a person committed to the custody of the Attorney General; said custody being pursuant to convictions for violations of the law of the United States,' in violation of 18 U.S.C. § 752. We affirm.
Appellant contends that at the time of his escape, Long was no longer in the custody of the Attorney General; accordingly, one of the essential elements alleged in the indictment was missing.
Prior to February 5, 1975, Long was incarcerated in McNeill Island Federal Penitentiary at Steilacoom, Washington, as a convicted felon under the laws of the United States. On February 5, 1975, a writ of habeas corpus ad testificandum was issued by the United States District Court for the Western District of Washington, commanding the warden of McNeill Island Federal Penitentiary to produce Long before the Grand Jury of the District Court in Seattle on March 18, 1975. The return of the writ indicated that pursuant thereto, Long was transferred to King County Jail at Seattle, Washington, on March 14, 1975.
Long appeared before the Grand Jury on March 19, 1975, was granted immunity and ordered to testify. He answered several preliminary questions, refused to answer further questions and was warned of a possible citation and sentence for contempt, but still refused to testify. On April 4, 1975, the District Court ordered Long to show cause as to why he should not be held in contempt as a recalcitrant witness and confined until such time as he was willing to testify. A date was set for such hearing. Prior to the hearing, Long escaped from King County Jail. Viger was convicted by a jury of having aided and assisted in the escape. 1
Appellant contends that when Long was transferred from McNeill Island Federal Penitentiary to the King County Jail pursuant to the writ, commitment to the custody of the Attorney General or a facility by his direction ended. He argues that the writ had the effect of superseding the commitment made under the earlier conviction until the writ proceedings were terminated, citing Barth v. Clise, 79 U.S. (12 Wall.) 400, 20 L.Ed. 393 (1870); Stallings v. Splain, 253 U.S. 339, 40 S.Ct. 537, 64 L.Ed. 940 (1920); and Johnston v. Marsh, 227 F.2d 528 (3d Cir. 1955).
We find these cases clearly distinguishable. In the instant case, Long was transferred originally from McNeill Island to King County Jail. King County Jail although not a federal facility, had a contract with the United States Department of Justice for the housing of Federal prisoners at all times pertinent to this case. When Long was taken to the District Court to testify before the Grand Jury, the custody under the Attorney General may have been superseded with the court then taking control and direction of the body. See Barth, supra, Stallings, supra, and Johnston, supra. When he was returned to the King County Jail after the Grand Jury proceeding, however, at the very least temporary custody was restored to the Attorney General. The escape by Long was therefore from the custody of the Attorney General. Tucker v. United States, 251 F.2d 794 (9th Cir. 1958); see United States v. Hobson, 519 F.2d 765 (9th Cir. 1975). 2
Appellant's further contention that the indictment was fatally deficient for failing to allege an essential element of the offense of escape, namely, intent to avoid confinement, we find to be without merit.
Affirmed.
* Honorable ...
To continue reading
Request your trial
-
U.S. v. Bailey
...in the Superior Court. Appellants Walker and Bailey therefore argue that their cases must be dismissed.61 See, e. g., United States v. Viger, 530 F.2d 846 (9th Cir. 1976); United States v. Stead, 528 F.2d 257 (8th Cir. 1975), Cert. denied, 425 U.S. 953, 96 S.Ct. 1730, 48 L.Ed.2d 197 (1976);......
-
U.S. v. Eaglin
...and "custody" would be defined differently by Congress in the context of punishing those who aid the escapee. See United States v. Viger, 530 F.2d 846 (9th Cir. 1976); United States v. Hobson, 519 F.2d 765 (9th Cir.), cert. denied, 423 U.S. 931, 96 S.Ct. 283, 46 L.Ed.2d 261 (1975); United S......
-
United States v. Jiminez
...county jails. Those statutes do not require that the escape be from a "Federal penal or correctional institution." See United States v. Viger, 530 F.2d 846 (9th Cir. 1976); United States v. Stead, 528 F.2d 257 (8th Cir. 1975), reh. denied, id., cert. denied, 425 U.S. 953, 96 S.Ct. 1730, 48 ......
-
Rivera v. Santirocco
...to grant bail without a specific grant of power from Congress.6 The parties also discuss two other "escape" cases. United States v. Viger, 530 F.2d 846 (9th Cir.1976); United States v. Stead, 528 F.2d 257 (8th Cir.1975), cert. denied, 425 U.S. 953, 96 S.Ct. 1730, 48 L.Ed.2d 197 (1976). In b......