571 F.2d 1069 (9th Cir. 1977), 75-2720, United States v. Eaglin

Docket Nº:75-2720.
Citation:571 F.2d 1069
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Raymond EAGLIN, Defendant-Appellant.
Case Date:August 10, 1977
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1069

571 F.2d 1069 (9th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,

v.

Raymond EAGLIN, Defendant-Appellant.

No. 75-2720.

United States Court of Appeals, Ninth Circuit

August 10, 1977

As Amended on Denial of Rehearing and Rehearing En Banc Nov. 8, 1977.

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[Copyrighted Material Omitted]

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G. Frank Noonan, Asst. U. S. Atty., Portland, Or., argued, for plaintiff-appellee.

Donald J. Stang, San Francisco, Cal., argued, for defendant-appellant.

Appeal from the United States District Court for the District of Oregon.

Before CHOY and KENNEDY, Circuit Judges, and WILLIAMS, [*] District Judge.

CHOY, Circuit Judge:

Raymond Eaglin appeals his jury conviction for conspiracy to harbor or conceal, and for willfully harboring or concealing, Carl Cletus Bowles, an escaped federal prisoner. 18 U.S.C. §§ 371 & 1072. He challenges: (1) the applicability of § 1072 to his case, arguing that Bowles did not "escape from the custody of the (United States) Attorney General or from a Federal penal or correctional

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institution" as required by that statute; (2) the sufficiency of the instructions and evidence concerning his knowledge that Bowles was an escapee; (3) the admission of certain evidence received under the co-conspirator exception to the hearsay rule; (4) the failure of the district court to grant a mistrial despite allegedly prejudicial publicity during the course of the trial; and (5) the effectiveness of the assistance rendered by his trial counsel. We affirm.

Facts and Proceedings Below

On May 17, 1974, Carl Bowles, a convicted murderer serving concurrent state and federal life sentences at the Oregon State Penitentiary, failed to return from a four-hour "social" pass issued to enable him to visit his niece, Joan Coberly, at a local motel. While released on the pass, Bowles was driven by Coberly to Portland, Oregon where they stayed at the homes of friends. After a few days, Coberly and Bowles were taken by a Charles Duane Armsbury to a house in Eugene, Oregon where Armsbury said he knew some people who would help them. There, they met appellant, Raymond Eaglin. The same day, in a car loaded with camping equipment, Eaglin drove Coberly and Bowles to the Willamette National Forest.

When they arrived, Eaglin helped them unload the camping equipment and showed them an elaborate bunker which he said he had constructed. He left and returned later that day with more supplies, false identification for escapee Bowles, and a gun and ammunition. He also visited the bunker a few days later, bringing additional supplies.

On June 13, 1974, Eaglin took Coberly and Bowles to an apartment attached to the rear of the home of a Mildred Wellborn in Eugene. The next morning, they left the apartment, and Coberly went shopping at a nearby grocery store. While purchasing some wine, Coberly displayed her California driver's license and was recognized by the sales clerk who notified the police. The police surrounded the area and arrested Coberly. After a shootout, however, Bowles escaped. In the course of his subsequent flight, Bowles kidnapped and killed an elderly couple in Idaho and was finally apprehended there on June 16, 1974.

Eaglin was arrested in Eugene on August 6, 1974. He was indicted together with five co-conspirators on December 5, 1974 for willfully harboring or concealing an escaped federal prisoner in violation of 18 U.S.C. § 1072 1 and for conspiracy to commit the same acts, id. § 371. On May 14, 1975, a jury found Eaglin guilty on both counts. 2 This appeal ensued.

I. Meaning of "Escape from the Custody of the (United

States) Attorney General"

At the outset, Eaglin protests that, even assuming arguendo that he did in fact render assistance to Bowles, he was not properly subject to federal indictment and conviction under 18 U.S.C. § 1072 for doing so. He concedes that the Government proved at trial that Bowles had failed to return from a four-hour social pass granted by the Oregon State Penitentiary where Bowles was confined, pursuant to a contract with the Federal Government, to serve concurrent state and federal sentences. But he argues that Bowles' failure to return from the pass was not an "escape" from "custody"; that, even if it was an escape from custody, it was not from a federal institution or from the custody of the United States Attorney General; and

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that, even if the Oregon State Penitentiary was at one time properly designated by the Attorney General as a place of confinement for Bowles, it ceased to be so when it violated its contractual agreement with the Federal Government by issuing Bowles a social pass. We are not convinced.

First, 18 U.S.C. § 4082(d) provides that a

willful failure of a prisoner to remain within the extended limits of his confinement, or to return within the time prescribed to an institution or facility designated by the Attorney General, shall be deemed an escape from the custody of the Attorney General punishable as provided in chapter 35 of this title.

(Emphasis added). See United States v. Phipps, 543 F.2d 576 (5th Cir. 1976); United States v. Leonard, 162 U.S.App.D.C. 212, 498 F.2d 754 (1974); United States 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 confinement granted under a social pass, and a prisoner who violates the terms of such a release is subject to being punished for escaping from custody. Compare Tucker v. United States, 251 F.2d 794, 797-99 (9th Cir. 1958); Giles v. United States, 157 F.2d 588, 589-90 (9th Cir. 1946), cert. denied, 331 U.S. 813, 67 S.Ct. 1197, 91 L.Ed. 1832 (1947); United States v. Vaughan, 144 U.S.App.D.C. 316, 446 F.2d 1317 (1971); United States v. Rudinsky, 439 F.2d 1074, 1076-77 (6th Cir. 1971); Read v. United States, 361 F.2d 830 (10th Cir. 1966). There is no reason to think that "escape" 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 States v. Howard, 545 F.2d 1044 (6th Cir. 1976). Eaglin's first contention is thus clearly without merit.

Second, while the Oregon State Penitentiary is not a "Federal penal or correctional institution," it was designated by the Attorney General as the place of confinement in which Bowles was to serve his concurrent federal sentence. Section 4082(b) provides that such an institution may be "maintained by the Federal Government or otherwise," and we have repeatedly held that an escape from a state institution is an escape from the custody of the Attorney General if the prisoner has been confined there under the authority of the Attorney General. See, e. g., Viger, supra at 847; Hobson, supra at 770-71; Tucker, supra at 797, 799-800. See also Howard, supra. 3

Finally, Eaglin argues that, since the social pass given to Bowles was not authorized under the confinement contract between the state and federal authorities, the custody of the Attorney General terminated, and Bowles either became a free man or reverted to the custody of the state alone, when he was released. This contention is patently frivolous. See Tucker, supra at 798-99 (allegedly unauthorized movement of prisoner to unguarded "civilian" section of hospital for treatment cannot "be tortured into a legal and/or wilful 'abandonment of custody' over him"). Cf. McCullough, supra at 550 (defendant's failure to return to a work release center constituted escape from the custody of the Attorney General even though the center had not formally been "designated or certified as a qualified place of confinement").

Bowles escaped from the custody of the Attorney General within the terms of 18 U.S.C. § 1072.

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II. Eaglin's Knowledge that Bowles Was an Escapee

In order to convict under 18 U.S.C. § 1072, the Government must prove that Eaglin "willfully" harbored or concealed an escaped federal prisoner. This element has been read to require that the defendant had knowledge that the person whom he aided was an escapee. United States v. Deaton, 468 F.2d 541, 543 (5th Cir. 1972), cert. denied, 410 U.S. 934, 93 S.Ct. 1386, 35 L.Ed.2d 597 (1973). See United States v. Hobson, 519 F.2d 765, 769-70 (9th Cir.), cert. denied, 423 U.S. 931, 96 S.Ct. 283, 46 L.Ed.2d 261 (1975). 4 Similarly, "when knowledge of a fact is required to convict for a substantive offense, knowledge is also required to convict for conspiracy to commit the substantive offense." United States v. Bekowies, 432 F.2d 8, 14 (9th Cir. 1970) (applying § 1071). See United States v. Feola, 420 U.S. 671, 686, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975); Ingram v. United States, 360 U.S. 672, 677-78, 79 S.Ct. 1314, 3 L.Ed.2d 1503 (1959); Jefferson v. United States, 340 F.2d 193, 197 (9th Cir.), cert. denied, 381 U.S. 928, 85 S.Ct. 1567, 14 L.Ed.2d 686 (1965).

Eaglin here contends both that the jury instructions given by the trial court on the element of knowledge were so misleading as to constitute reversible error and that, in any event, the evidence offered by the Government to show his knowledge of Bowles' status was insufficient.

  1. Jury Instructions

    Eaglin challenges the propriety of three instructions which, he claims, "watered down" the Government's burden of persuasion on the element of knowledge. 5 No objection, however, was raised to them at trial. See Fed.R.Crim.P. 30. And, when the jury instructions are viewed as a whole, United States v. Silla, 555 F.2d 703, 705-06...

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