U.S. v. King

• Decision Date: 04 August 2003
• Docket Number: No. 02-4162.,02-4162.
• Citation: 338 F.3d 794
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William KING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

338 F.3d 794

UNITED STATES of America, Plaintiff-Appellee, v. William KING, Defendant-Appellant.

No. 02-4162.

United States Court of Appeals, Seventh Circuit.

ARGUED April 11, 2003.

DECIDED August 4, 2003.

COPYRIGHT MATERIAL OMITTED

Michael C. Carr (argued), Office of U.S. Atty., Benton, IL, for Plaintiff-Appellee.

Melissa A. Day (argued), Office of Federal Public Defender, Benton, IL, for Defendant-Appellant.

Before EASTERBROOK, MANION, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Two legs clothed in prison garb poking out from behind a roadside sign: that is what an off-duty corrections officer saw while driving down a road approximately two miles from the Federal Prison Camp at Marion, Illinois. Turning around for a second look, the officer noted William King in an inmate's uniform walking along the side of the road heading away from the camp. The officer confronted King and after a brief discussion convinced him to accept a ride back to the camp. Upon his return to the camp, authorities transferred King to a nearby county jail and, after some delays, indicted King on one count of escape in violation of 18 U.S.C. § 751(a). A jury convicted King, and the district court sentenced him to 30 months' imprisonment, to be served consecutively to the sentence for which King was already serving time. King now challenges both his indictment and sentence. Finding no error, we affirm the district court in all respects.

I

King was incarcerated in a minimum security prison "camp" operated by the Federal Bureau of Prisons (BOP) that houses, among others, small-time crack dealers like King. On December 14, 2001, King wandered off, scaling the modest three-foot fences that set the camp off from surrounding private property and disregarding the conspicuously placed signs that ring the institution and warn inmates not to stray beyond a designated perimeter. King had been gone for some seven hours and was walking away from the camp on a road approximately two miles away when Correctional Officer Tim Rodgers, who was off-duty at the time and driving his truck on personal business, noticed him. King initially tried to hide behind a sign, but Rodgers, after a second pass, pulled up beside him and asked him if he needed a ride. King initially accepted the offer and moved to enter the vehicle, but then he noticed Rodgers's uniform. At that point, Rodgers informed King that the jig was up: King had the choice of trying to run and almost certainly being caught by U.S. marshals, or he could get into the truck and be transported back to the camp. King sensibly chose the latter option.

Upon his return, King was transferred to Williamson County Jail. However, the BOP did not initiate any administrative action against King. Instead, it simply notified the U.S. Marshals Service (the Marshals) of what had transpired and sent written notification to someone in the Central District of Illinois (presumably to that U.S. Attorney's Office, as it had been responsible for prosecuting King's original case). No one took any action until late January 2002, when the Marshals interviewed King and obtained his side of the story: that he had gone into the woods to pray and got lost. In early February 2002, the BOP and the Marshals briefly disputed who would shoulder the costs of King's incarceration at the Williamson County Jail. The Marshals Service claimed that it had not received word of King's transfer to Williamson until February 2002, and thus should not be responsible for the costs prior to that date. In the end, however, the Marshals agreed to pay. Two months later, on April 3, 2002, King was indicted on one count of escape in violation of 18 U.S.C. § 751(a).

At arraignment on the escape charge, King raised a number of objections, including an alleged violation of his right to prompt presentment before a magistrate for a probable cause hearing and his right to a speedy trial. Later, he filed a motion to dismiss his indictment on those grounds; the district court denied that motion on July 9, 2002. King proceeded to trial, hewing throughout to his story that he had walked into the woods in order to "find God" and had become lost. The jury found this too much to swallow and returned a guilty verdict. King's sentence of 30 months' imprisonment, which the court imposed on November 26, 2002, was based on a Sentencing Guidelines calculation reflecting an upward adjustment under U.S.S.G. § 3C1.1 for King's perjurious testimony and the court's rejection of a seven-point reduction for "voluntary return" under U.S.S.G. § 2P1.1(b)(2). King now appeals.

II

King presents three arguments for our consideration. The first of these is a renewal of his presentment and speedy trial claims. King argues that his incarceration in the Williamson County Jail for nearly four months prior to his indictment under 18 U.S.C. § 751(a) was a violation of his rights under the Speedy Trial Act, 18 U.S.C. § 3161, and the Sixth Amendment. We review legal questions regarding application of the Speedy Trial Act de novo, but factual findings are reviewed for clear error. United States v. Salerno, 108 F.3d 730, 734 (7th Cir.1997). Our review of King's Sixth Amendment speedy-trial claims is governed by the framework set forth in Doggett v. United States, 505 U.S. 647, 651-52, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992).

In the usual case, the Speedy Trial Act requires that the charge in the original complaint "be dismissed or otherwise dropped," 18 U.S.C. § 3162(a)(1), if the period between the date of an arrest and the return of an indictment exceeds 30 days, 18 U.S.C. § 3161(b). We have held, however, that the Act does not apply to the recapture of an escaped prisoner because her apprehension does not initiate new restraints beyond those to which she is subject as a result of her original conviction. United States v. Zukowski, 851 F.2d 174, 177 (7th Cir.1988); see also United States v. Sairafi, 801 F.2d 691, 692 (4th Cir.1986); United States v. Stead, 745 F.2d 1170, 1172-73 (8th Cir.1984). Other decisions hold that the dismissal sanction of § 3162(a)(1) applies where a suspect can make one of two showings: that she was formally charged at the time of or following her arrest but no indictment was returned within 30 days, or she was subject to some additional continuing restraint imposed in connection with the charge on which she is eventually tried. United States v. Hoslett, 998 F.2d 648, 652 (9th Cir.1993); United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1049 (9th Cir.1990); United States v. Candelaria, 704 F.2d 1129, 1131 (9th Cir.1983). Under either of these approaches, because King was not formally charged with escape until April 3, nor was he subject to any additional restraints beyond the sentence that had already been imposed as part of his prior conviction, his claim is a nonstarter.

King makes only one argument in response: that the dispute between BOP and the Marshals about who should foot the bill for his incarceration at the Williamson County Jail creates an inference that he was really transferred to the jail to prosecute the escape attempt, rendering the transfer an arrest within the meaning of the Act. But this bureaucratic dispute does not have the substantive implications King claims for it. First, by its very terms, the Act's mandatory dismissal sanction is available only "in the case of [an] individual against whom a complaint is filed charging such individual with an offense...." 18 U.S.C. § 3162(a)(1) (emphasis added); Candelaria, 704 F.2d at 1131. Thus, an inference that the Marshals thought that King was going to be charged with the escape offense, because they were paying Williamson County for the costs of his incarceration, is simply not justified. (The Marshals Service in any event is not the part of the Justice Department with the authority to charge anyone with a crime; that job belongs to the U.S. Attorneys or the litigating sections of the Department.) Cf. Zukowski, 851 F.2d at 177 (rejecting defendant's argument that the filing of a "Notice of Escaped Federal Prisoner" authorized or otherwise amounted to an arrest within the meaning of the Speedy Trial Act). Second, we decline the invitation to attach talismanic significance to the Marshals' ultimate willingness to bear the costs of King's incarceration at a more secure facility. Under 18 U.S.C. § 3621(b), the BOP is authorized to house a prisoner like King anywhere it deems appropriate. The statute is silent on the question of who must shoulder the costs, except for a clause that okays use of a facility "whether maintained by the Federal Government or otherwise." Id. Here, BOP easily might have concluded that King had forfeited the right to live in an open facility, given his demonstrated willingness to leave the premises, which meant that he had to be moved first temporarily and then permanently to a more secure place.

Moving on, King's Sixth Amendment claim suffers from two fatal flaws. First, it is well settled that the Sixth Amendment right to a speedy trial has no application prior to arrest or indictment. Doggett, 505 U.S. at 654-55, 112 S.Ct. 2686; United States v. MacDonald, 456 U.S. 1, 6-7, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982); United States v. Wallace, 326 F.3d 881, 885 (7th Cir.2003); United States v. Koller, 956 F.2d 1408, 1413 (7th Cir.1992); Zukowski, 851 F.2d at 178. Protections against preindictment delay are more properly handled under the Due Process Clause of the Fifth Amendment. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); MacDonald, 456 U.S. at 7, 102 S.Ct. 1497; Wallace, 326 F.3d at 886. In King's case, a formal indictment was not entered until April 3, 2002. King can prevail only if he can show that his return to the camp and transfer to the Williamson County Jail constituted an arrest. This he cannot do, for the same reasons we have already noted with respect to King's claims under the Speedy Trial Act....