U.S. v. Cluck

• Decision Date: 07 October 1976
• Docket Number: No. 76-1469,76-1469
• Citation: 542 F.2d 728
• Parties: UNITED STATES of America, Appellee, v. Alvin Odell CLUCK, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 728

542 F.2d 728

UNITED STATES of America, Appellee, v. Alvin Odell CLUCK, Appellant.

No. 76-1469.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 17, 1976.

Decided Oct. 7, 1976.

Howard E. McNier, St. Louis, Mo., for appellant.

Barry A. Short, U.S. Atty. and Richard E. Coughlin, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before GIBSON, Chief Judge, and STEPHENSON and HENLEY, Circuit Judges.

HENLEY, Circuit Judge.

Alvin Odell Cluck, defendant-appellant, was convicted by a jury in the United States District Court for the Eastern District of Missouri of having unlawfully escaped from the St. Louis County Hospital on or about January 19, 1976 in violation of 18 U.S.C. § 751(a). A post-trial motion for judgment notwithstanding the verdict, or, alternatively, for a new trial was overruled by the district court, ¹ and defendant was sentenced to imprisonment for a period of eighteen months.

Defendant contends for reversal that the indictment should have been dismissed, that he was entitled to a judgment of acquittal, that the jury was improperly instructed, and that the district court committed a number of trial errors.

Before discussing the facts of the case and the contentions of the defendant, we deem it well to state briefly some of the governing principles of law.

The statute under which the defendant was charged provides in substance that any person who 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, is guilty of a federal offense. If the custody arose out of a felony charge or conviction of any offense, the escape or attempted escape is a felony. The defendant in the instant case was allegedly in federal custody for the purpose of serving the remainder of a four year sentence imposed on him by the district court in 1973.

In United States v. Nix, 501 F.2d 516 (7th Cir. 1974), the court defined an "escape" as being a voluntary departure from custody with intent to avoid confinement. ² Although there must be an escape from custody, it is not necessary that the escapee at the time of the escape be held under guard or under direct physical restraint or that the escape be from a conventional penal housing unit such as a cell or cell block; the custody may be minimal and, indeed, may be constructive. United States v. Leonard, 162 U.S.App.D.C. 212, 498 F.2d 754 (1974); United States v. Wilke,450 F.2d 877 (9th Cir. 1971), cert. denied, 409 U.S. 918, 93 S.Ct. 250, 34 L.Ed.2d 180 (1972); United States v. Hollen, 393 F.2d 479 (4th Cir. 1968); McCullough v. United States, 369 F.2d 548 (8th Cir. 1966); Nace v. United States, 334 F.2d 235 (8th Cir. 1964), aff'g 231 F.Supp. 528 (D.Minn.); Tucker v. United States, 251 F.2d 794 (9th Cir. 1958); Giles v. United States, 157 F.2d 588 (9th Cir. 1946), cert. denied, 331 U.S. 813, 67 S.Ct. 1197, 91 L.Ed. 1832 (1947). Specifically, the escape may be from a hospital in which the escapee was properly confined. Frazier v. United States, 119 U.S.App.D.C. 246, 339 F.2d 745 (1964); Tucker v. United States,supra.

If an individual is in custody under process issued pursuant to the laws of the United States, he cannot test the underlying validity or propriety of his confinement by escaping from it. United States v. Herrera,504 F.2d 859 (5th Cir. 1974); United States v. Allen, 432 F.2d 939 (10th Cir. 1970); Derengowski v. United States, 404 F.2d 778 (8th Cir. 1968), cert. denied, 394 U.S. 1024, 89 S.Ct. 1640, 23 L.Ed.2d 49 (1969); Godwin v. United States, 185 F.2d 411 (8th Cir. 1950).

Assuming that specific intent to escape is an element of the offense defined by § 751(a), it is settled that the government need not prove the existence of unlawful intent at the moment at which a prisoner or convict departs from custody. Even if such a person leaves his place of confinement involuntarily or inadvertently, nevertheless if at a later time he voluntarily forms an intent to remain at large and acts upon it, that is sufficient to sustain a conviction of escape. United States v. Woodring, 464 F.2d 1248 (10th Cir. 1972); United States v. Chapman, 455 F.2d 746 (5th Cir. 1972); Chandler v. United States, 378 F.2d 906 (9th Cir. 1967); see also United States v. Coggins, 398 F.2d 668 (4th Cir. 1968).

Apart from his contentions that the indictment should have been dismissed and that the trial court erred in certain of its rulings, the basic position of the defendant is that although he in fact left the Hospital during the early morning hours of January 19, 1976, his departure from the institution as a matter of law was not a violation of § 751(a), and that a judgment of acquittal should have been entered in his favor.

The defendant contends that while a patient in the Hospital from January 11 until his departure therefrom he was not actually in "custody"; that the Hospital was not an institution designated for his confinement by the Attorney General; and that when he left the Hospital and thereafter he was in such a state of drug induced stupor that he was incapable of forming any specific intent to escape. He contends that after he left the Hospital he made contact with a friend, James Caudel, and later with his wife, Mary Cluck; that he was advised by his wife that she had talked with the United States Marshal for the Eastern District of Missouri and with a responsible official of St. Louis County, and that they had advised her that defendant would not be prosecuted for escape if he gave himself up promptly, and that he was making a good faith effort to surrender himself to the Marshal when he was apprehended by local police officers fairly early in the evening of January 20.

Many of the facts of the case are substantially undisputed. As to others, there are sharp conflicts in the evidence. In passing upon the question of whether the government made a submissible case and whether there was substantial evidence to sustain the verdict, we are required to view the evidence in the light most favorable to the government, and to give the government the benefit of all inferences favorable to it reasonably to be drawn from the evidence. United States v. McColgin, 535 F.2d 471 (8th Cir. 1976); United States v. Wisdom, 534 F.2d 1306 (8th Cir. 1976). And it must be kept in mind that if the case was properly submitted to the jury, it was for the jury to pass upon the credibility of witnesses and the weight to be given to their testimony, and to resolve conflicts in the testimony.

The defendant is a recidivist criminal with a record of convictions going back to about 1965. In 1972 he was convicted in St. Louis County on charges of forgery and uttering and was sentenced to imprisonment for six years in the Missouri State Penitentiary. He testified that while in that institution he became addicted to the use of narcotic drugs and was an addict during late 1975 and early 1976.

In 1973 defendant was convicted in the district court of a federal firearms violation and was sentenced to imprisonment for four years with a recommendation that the federal sentence be served concurrently with the sentence that he was then serving in the state institution.

That recommendation was honored by the Attorney General, and the Missouri State Penitentiary was designated as a place for the service of defendant's federal sentence. However, the Bureau of Prisons failed to lodge a detainer against the defendant, and he was released from custody in July, 1975 with at least some months left to serve on his federal sentence.

In November, 1975 defendant was arrested and jailed on Missouri state charges, and it appears that as of that time a federal detainer based on the 1973 conviction was lodged with the local authorities. In December, 1975 defendant was handed over to the United States Marshal for the Eastern District of Missouri, and was confined for a time in the St. Clair County Jail in Belleville, Illinois.

In 1975 and 1976 the Federal Bureau of Prisons, which is an agency in the Department of Justice, had a contract with St. Louis County under the terms of which federal convicts in certain categories might serve all or part of their sentences in the St. Louis County Correctional Institution. Another institution operated by St. Louis County is the St. Louis County Hospital; inmates of the Correctional Institution who have need of hospital care are usually, or at least frequently, transferred to the County Hospital.

The Hospital is not a penal institution; it has no "prison ward"; its windows are not barred; and patients are not locked in their rooms. Some inmates of the Correctional Institution who are transferred to the Hospital are kept there under personal guard, but others are not. If an inmate of the Correctional Institution is transferred to the Hospital but is not accompanied by a guard, there is no way to distinguish the inmate patient from other patients.

In late December, 1975 the Bureau of Prisons designated the Correctional Institution as the place at which the defendant was to serve the rest of his federal sentence, and he was placed in the Institution by the Marshal.

Although confined at the Correctional Institution, the defendant seems to have been able to keep himself supplied with drugs which he administered to himself by means of a needle. As sometimes happens in such cases, the needle became contaminated, and the defendant contracted hepatitis.

By January 11, 1976 defendant was severely ill, or claimed to be, and he was transferred to the Hospital. He testified that he was brought to the Hospital in an ambulance and under guard, and that he was initially handcuffed to his bed. Later, however, according to defendant's testimony, the handcuffs were removed and the guard left the premises informing the defendant that "he was on his own."

Those portions of defendant's testimony were neither corroborated nor...