U.S. v. George, 79-2082

• Decision Date: 26 June 1980
• Docket Number: No. 79-2082,79-2082
• Citation: 625 F.2d 1081
• Parties: UNITED STATES of America v. Etienne GEORGE, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 1081

625 F.2d 1081

UNITED STATES of America v. Etienne GEORGE, Appellant.

No. 79-2082.

United States Court of Appeals Third Circuit.

Argued April 21, 1980.

Decided June 26, 1980.

Judith L. Bourne, Asst. Federal Public Defender, St. Thomas, Charlotte Amalie, V.I., argued for appellant.

Ishmael A. Meyers, U. S. Atty., St. Thomas, Charlotte Amalie, V.I., with whom James S. Carroll, III, Asst. U. S. Atty., St. Thomas, V.I., was on the brief, for appellee.

Before ADAMS, MARIS and SLOVITER, Circuit Judges.

OPINION OF THE COURT

MARIS, Circuit Judge.

A jury having found Etienne George guilty of escape from the custody of an officer or employee of the United States in violation of 18 U.S.C. § 751(a), and threatening an officer of a court of the United States in violation of 18 U.S.C. § 1503, the district court adjudged him guilty as charged in the information and sentenced him to two years imprisonment on each count, the two terms of imprisonment to be served concurrently. He appeals.

At the time the federal charges under 18 U.S.C. §§ 751(a) and 1503 were filed against George, he was free on bail pending trial in the district court on local felony charges lodged against him by the government of the Virgin Islands. On September 29, 1978, he had been released on bail by a judge of the territorial court. One of the conditions of his release, stated in the judge's order, was that he "report to the U. S. Marshal each and every Wednesday morning at 8:30 a. m."

At his arraignment before a magistrate in the district court on the local charges against him, George was again ordered to report weekly to the marshal's office.

On November 20, 1978, Chief Judge Christian of the district court entered a general order directing in relevant part that ". . . all persons accused of criminal offenses in the District Court of the Virgin Islands shall report to the Office of the United States Marshal at 8:30 a. m. on Wednesday of each week, if any such defendant is not in custody . . ." The order further directed that ". . . should any accused fail to report to the Marshal for two consecutive weeks, this Order will serve as authority to the United States Marshal to arrest any such person and bring that person before the Court."

On March 8, 1979, pursuant to the district court's order of November 20, 1978, Deputy United States Marshal Richard Dade placed George under arrest for having failed to report to the United States marshal's office for two consecutive weeks. As a matter of fact, he had not so reported since November 1978. On the basis of George's actions at the time of this arrest, the United States attorney filed the two-count information charging George with the federal crimes, from his conviction of which he now appeals.

With respect to his conviction on the first count for escape from lawful custody under 18 U.S.C. § 751(a), George questions the sufficiency of the evidence that his arrest by Dade was lawful and the sufficiency of the evidence that he had an intent to escape custody and contends that the trial judge's instructions to the jury on the issues of the lawfulness of the arrest and the existence of the necessary intent and certain other instructions constitute reversible error. As to his conviction on the second count for threats against an officer of a court of the United States under 18 U.S.C. § 1503, George questions the applicability of § 1503 to threats against an officer of the District Court of the Virgin Islands and the applicability of § 1503 to George's conduct.

Before we consider the legal issues presented by the appeal, however, we should place them in the context of the circumstances of George's arrest. We are mindful that the evidence must be viewed, on this appeal, in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); Government of Virgin Islands v. Gereau, 11 V.I. 265, 293, 502 F.2d 914, 930-931 (1974), cert. denied, 420 U.S. 909, 95 S.Ct. 829, 42 L.Ed.2d 839 (1975). Viewed in this light, the evidence disclosed the following facts.

Prior to arresting George on March 8, 1979, Dade had knowledge of the district court's order of November 20, 1978, and of George's violation of the order and the conditions of his bail. In fact, George had not reported to the marshal's office since November 1978. Moreover, at the commencement of the trial, the defense stipulated that for at least two consecutive weeks prior to his arrest George had failed to report to the marshal's office and further stipulated that the district court's order of November 20, 1978, was authority for Deputy Marshal Dade to arrest George.

On March 8, 1979, Dade was driving a marshal's van and carrying a subpoena ordering George to appear in court the following Monday when he saw George walking in the vicinity of his van and beckoned to him to approach the van. George, however, continued on his way. Dade parked the van and ran after George calling to him to stop, that he was under arrest. George said he wanted to know for what. Dade told him, "For not coming in and signing our book." But George refused to go with Dade and after a little tussle Dade got George into his van. George said he would jump out and Dade told him that if he did, there would be escape charges against him and he would shoot him. George, nonetheless, did jump out of the van and ran down the street. Dade fired a shot in the air and George ran around behind a building and reappeared on the other side of it where there was a fence between him and Dade. George then said, "Man, what are you trying to do to me." He refused to come over the fence, started cursing and told Dade he would kill him and his family. At that point another deputy marshal and a police officer arrived and persuaded George to climb over the fence. He was then handcuffed and taken to police headquarters at Fort Christian.

Having thus summarized the circumstances of the appellant's arrest, we now consider the legal issues raised by his conviction and we first take up the issues relative to his conviction on the first count, that founded on 18 U.S.C. § 751(a). That Section provides in relevant part:

"Whoever escapes or attempts to escape . . . from the custody of an officer or employee of the United States pursuant to lawful arrest, shall, if the custody . . . is by virtue of an arrest on a charge of felony . . . be fined not more than $5,000 or imprisoned not more than five years, or both. . . ."

The escape contemplated under the statute is from the custody of an officer or employee of the United States. There can be no question but that Dade, a deputy United States marshal for the Virgin Islands at the time he arrested George, from whose custody George allegedly escaped, was an employee, if not an officer, of the United States. See 48 U.S.C.A. § 1614(c) and 28 U.S.C. §§ 561-575.

Before discussing the question of the lawfulness of Dade's arrest of George, however, we must satisfy ourselves that the arrest was "on a charge of felony". Dade arrested George for failing to report to the marshal's office, a condition of his release on bail, under the authority of the Bail Reform Act of 1966, 18 U.S.C. §§ 3146-3156. That Act provides that the penalty for willfully failing "to appear before any court or judicial officer as required" shall be a forfeiture of any security given or pledged for the defendant's release and, "if he was released in connection with a charge of felony," a fine of not more than $5,000 or imprisonment of not more than five years, or both. Since George had been released on bail in connection with felony charges, any willful failure on his part "to appear before any court or judicial officer as required" would constitute a felony, for an offense punishable by imprisonment for a term exceeding one year is a felony, 18 U.S.C. § 1, and the Bail Reform Act would permit the imposition of a prison term of up to five years.

A United States marshal is not a "judicial officer" as that term is defined under the Bail Reform Act, 18 U.S.C. § 3156(a)(1). However, where the court requires a defendant, whom the court has released under the provisions of the Act, to report to the United States marshal as a condition of the defendant's release, the court, which has continuing jurisdiction over the defendant, has, in legal effect, designated the marshal as an agent of the court and the defendant's failure to report as required to the marshal is a failure to appear before the court for purposes of the Act. See United States v. Harris, 544 F.2d 947 (8th Cir. 1976), and the cases cited therein at page 949.

Since George had been released in connection with felony charges and had failed to appear before the "court", i. e., its agent, the United States marshal, as required, he was subject to arrest on felony charges pursuant to the Bail Reform Act. His arrest by Dade, therefore, was "an arrest on a charge of felony" under the federal escape statute, 18 U.S.C. § 751(c).

With respect to the lawfulness of the arrest, it was made under the authority of the district court's order of November 20, 1978. The order was authorized under the Bail Reform Act which in the exercise of our supervisory powers we have made applicable to all criminal defendants in the District Court of the Virgin Islands. Government of Virgin Islands v. Ortiz, 427 F.2d 1043 (3d Cir. 1970). The Act provides not only sanctions, as we have indicated above, for violations of whatever conditions of release the court may impose but also contemplates the arrest of any person violating such conditions. 18 U.S.C. § 3146(c).

Dade's authority to make the arrest was conceded below and is not now contested. Our brother Adams, however, asserts in dissent that the arrest must nonetheless be held to be unlawful because a formal warrant for George's arrest was not issued. We do not agree. In the first place, it is clear that the parties regarded as ample authority...