U.S. v. Evans

• Decision Date: 30 October 1998
• Docket Number: No. 97-4707,97-4707
• Citation: 159 F.3d 908
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Vaughn EVANS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 908

159 F.3d 908

UNITED STATES of America, Plaintiff-Appellee, v. Robert Vaughn EVANS, Defendant-Appellant.

No. 97-4707.

United States Court of Appeals Fourth Circuit.

Argued Sept. 25, 1998.

Decided Oct. 30, 1998.

ARGUED: Richard Wallace Shryock, Jr., Mullens & Regan, Elkins, West Virginia, for Appellant. Zelda Elizabeth Wesley, Assistant United States Attorney, Clarksburg, West Virginia, for Appellee. ON BRIEF: R. Mike Mullens, Mullens & Regan, Elkins, West Virginia, for Appellant. William D. Wilmoth, United States Attorney, Clarksburg, West Virginia, for Appellee.

Before HAMILTON and MICHAEL, Circuit Judges, and MOON, United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed by published opinion. Judge HAMILTON wrote the opinion, in which Judge MICHAEL and Judge MOON joined.

OPINION

HAMILTON, Circuit Judge:

Robert Vaughn Evans appeals his conviction for escape. See 18 U.S.C. § 751(a). For the reasons stated below, we affirm.

I

Evans was convicted of violating 18 U.S.C. § 922(g)(1) in the United States District Court for the Northern District of Florida. He was sentenced to thirty-five months' imprisonment, followed by three years supervised release. His supervised release term began on March 19, 1994, with his supervision later transferred to the Northern District of West Virginia.

On January 17, 1995, the United States Probation Office for the Northern District of West Virginia filed a petition to revoke Evans' supervised release. Following the issuance of an arrest warrant, Evans was arrested in Iowa. On February 6, 1995, Evans was transported to the Northern District of West Virginia by the United States Marshal Service and was housed in the Central Regional Jail.

On July 19, 1995, a circuit judge of the Circuit Court of Harrison County, West Virginia issued a writ of habeas corpus ad prosequendum, to allow the State of West Virginia to proceed with grand larceny charges against Evans. The writ directed the United States Marshal Service for the Northern District of West Virginia to "deliver the body of Robert Vaughn Evans to the custody of the Sheriff of Harrison County, West Virginia." (J.A. 36). The writ also directed the Sheriff of Harrison County to return Evans to the United States Marshal Service at the conclusion of the state court proceedings. On July 23, 1995, Evans was released to Harrison County Sheriff's deputies and was transported to the Harrison County Jail.

While in the Harrison County Jail, Evans suffered a seizure and on August 24, 1995 was transported to the United Hospital Center in Clarksburg, West Virginia by state authorities. On August 27, 1995, Evans escaped from the United Hospital Center while pretending to take a shower. Evans remained a fugitive until he was apprehended by United States marshals on February 6, 1996.

While Evans remained a fugitive, he was charged with escape, see 18 U.S.C. § 751(a), by a federal grand jury sitting in the Northern District of West Virginia in Count One of a five-count indictment. ^* Following a jury trial, Evans was convicted of escape and was sentenced to a term of imprisonment of sixty months, followed by a term of supervised release of three years. Evans noted a timely appeal.

II

On appeal, Evans challenges the sufficiency of the evidence to support his § 751(a) conviction. We must sustain his conviction if there is substantial evidence to support it when the evidence and all reasonable inferences from it are viewed in the light most favorable to the government. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Burgos, 94 F.3d 849, 862-63 (4th Cir.1996) (en banc ), cert. denied, --- U.S. ----, 117 S.Ct. 1087, 137 L.Ed.2d 221 (1997).

Section 751(a) provides in relevant part:

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, or from any custody under or by virtue of any process issued under the laws of the United States by any court, judge, or commissioner, or from the custody of an officer or employee of the United States pursuant to lawful arrest, shall, if the custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any offense, be fined under this title or imprisoned not more than five years, or both....

18 U.S.C. § 751(a). Section 751(a) requires the government to prove three elements. First, the government must satisfy § 751(a)'s custody/confinement requirement. The government can meet this burden by demonstrating that the defendant was (1) in the custody of the Attorney General or her authorized representative; (2) confined in an institution by direction of the Attorney General; (3) in custody under or by virtue of any process issued under the laws of the United States by any court, judge, or magistrate; or (4) in the custody of an officer or employee of the United States pursuant to a lawful arrest. Second, the government must satisfy § 751(a)'s offense requirement. To meet this burden, the government must demonstrate that the defendant's custody or confinement was by virtue of an arrest on a felony crime or a conviction for any offense. Finally, the government must prove that the defendant escaped from such custody or confinement. Although the term "escape" is not defined in § 751(a), the government meets its burden if it demonstrates that the defendant "absent[ed]" himself "from custody without permission." United States v. Bailey, 444 U.S. 394, 407, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980).

Evans makes two arguments attacking the sufficiency of the evidence to support his § 751(a) conviction. First, he contends that the government failed to prove that he escaped from the custody of the Attorney General or her authorized representative. Second, he contends that the government failed to prove that his custody was by virtue of an arrest for a felony crime or a conviction for any offense. We shall address each of these arguments in turn.

A

Evans contends that he was not in the custody of the Attorney General or her authorized representative because at the time of his escape he was in state custody awaiting trial on state charges pursuant to a writ of habeas corpus ad prosequendum issued by the Circuit Court for Harrison County. According to Evans, a writ of habeas corpus ad prosequendum effectuates a change in custody whereby the sending jurisdiction loses escape jurisdiction and the receiving jurisdiction gains it. Therefore, Evans contends that if he was guilty at all of escape, it would be a West Virginia state charge of escape.

The term "custody" is not defined in § 751. However, it is well-settled that § 751 was not intended by Congress to apply to persons who merely escaped from state custody. See United States v. Depew, 977 F.2d 1412, 1413 (10th Cir.1992). Rather, § 751 was intended to apply to "those escapees who were originally confined or in custody under federal law in the sense that they were held in custody of the Attorney General or in custody by an order or process issued under the laws of the United States by a competent court or official." United States v. Howard, 654 F.2d 522, 525 (8th Cir.1981). Further, "custody" does not require actual physical restraint. See Depew, 977 F.2d at 1414; see also United States v. Keller, 912 F.2d 1058, 1059-61 (9th Cir.1990) (escape when defendant failed to report to correctional facility to begin his sentence).

Evans concedes, as he must, that he was in federal custody while he was incarcerated at the Central Regional Jail. Consequently, Evans' argument rests on the proposition that the Attorney General relinquished custody of Evans, as the term "custody" is used in § 751(a), to state authorities when Evans was received by the state authorities from the federal authorities pursuant to the writ of habeas corpus ad prosequendum. This proposition we cannot accept.

The Supreme Court has examined in great detail the history of the writ of habeas corpus ad prosequendum, observing that § 14 of the first Judiciary Act, 1 Stat. 81, authorized federal courts to issue writs of habeas corpus. See Carbo v. United States, 364 U.S. 611, 614, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961). Although § 14 of the first Judiciary Act did not expressly state that courts could issue writs of habeas corpus ad prosequendum, the Supreme Court, in an opinion authored by Chief Justice Marshall, Ex Parte Bollman, 8 U.S. (4 Cranch) 75, 2 L.Ed. 554 (1807), interpreted the words "habeas corpus" as being a generic term including the writ "necessary to remove a prisoner in order to prosecute him in the proper jurisdiction wherein the offense was committed." Carbo, 364 U.S. at 615, 81 S.Ct. 338. This authority is now explicit under 28 U.S.C. §§ 2241(c) & (c)(5), which provide that the "writ of habeas corpus shall not extend to a prisoner unless ... [i]t is necessary to bring him to court to testify or for trial."

Writs of habeas corpus ad prosequendum are court orders demanding that an inmate be produced to face criminal charges. See Stewart v. Bailey, 7 F.3d 384, 389 (4th Cir.1993) ("[W]rits of habeas corpus ad prosequendum are issued directly by a court of the jurisdiction where an indictment has been lodged against the prisoner.... [A writ of habeas corpus ad prosequendum ] is a court order requesting the prisoner's appearance in the summoning jurisdiction."). Such writs are "immediately executed," United States v. Mauro, 436 U.S. 340, 360, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978), and, thus are unlike detainers which do not summon a prisoner to the requesting jurisdiction's courts. See Stewart, 7 F.3d at 389.

That a writ of habeas corpus ad prosequendum does not effect a transfer of custody for purposes of § 751(a) is confirmed by examining the term "custody" in 18 U.S.C. § 3585, the statute establishing when a federal...