U.S. v. Richardson, 81-1707

• Decision Date: 23 August 1982
• Docket Number: No. 81-1707,81-1707
• Citation: 687 F.2d 952
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald G. RICHARDSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 952

687 F.2d 952

UNITED STATES of America, Plaintiff-Appellee, v. Donald G. RICHARDSON, Defendant-Appellant.

No. 81-1707.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 22, 1982.

Decided Aug. 23, 1982.

Jeffrey Blumenthal, Chicago, Ill., for defendant-appellant.

Robert L. Simpkins, Asst. U. S. Atty., East St. Louis, Ill., for plaintiff-appellee.

Before SPRECHER, ^* Circuit Judge, CUDAHY, Circuit Judge, and DOYLE, ^** Senior District Judge.

JAMES E. DOYLE, Senior District Judge.

Defendant Richardson appeals from a judgment of conviction and a sentence to imprisonment for one year, entered upon a verdict of guilty following a jury trial which commenced April 6, 1981. He contends: (1) the government failed to offer evidence as to an essential element of the offense and the district court erred in denying defendant's motions for a judgment of acquittal; (2) the district court failed to instruct the jury concerning the same essential element; (3) the delay in bringing the case to trial violated defendant's rights under the fifth and sixth amendments; and (4) defendant was prejudiced by the district court's refusal to arrange for the presence of a certain incarcerated witness. We reverse the conviction.

I.

In a single-count indictment returned January 21, 1981, the grand jury charged:

On or about the 10th day of June, 1979, in Williamson County, within the Southern District of Illinois, at the United States Penitentiary, Marion, Illinois, Donald A. Morgan and Donald G. Richardson, each being held in lawful custody at the United States Penitentiary at Marion, Illinois, where they were confined by direction of the Attorney General, pursuant to commitments issued under the laws of the United States, did willfully and unlawfully attempt to escape from such custody; all in violation of Title 18, United States Code, Section 751(a). ¹

Defendant Richardson has chosen to appeal, not on the ground that the indictment fails to cover an essential element of the offense, but rather on the grounds that the evidence and the district court's instructions to the jury failed to reach that missing element. Under Rule 12(b), F.R.Crim.P., the failure of an indictment to state an offense shall be noticed at any time. It is appropriate for us to address the indictment's sufficiency before examining the adequacy of the evidence and the instructions.

A. Sufficiency of indictment

We consider preliminarily the opening portion of § 751(a):

Whoever escapes or attempts to escape (1) from the custody of the Attorney General or his authorized representative, or (2) from any institution or facility in which he is confined by direction of the Attorney General, or (3) from any custody under or by virtue of any process issued under the laws of the United States by any court, judge, or magistrate, or (4) from the custody of an officer or employee of the United States pursuant to lawful arrest....

In its brief on appeal, the government seems to suggest that the indictment proceeds on categories (2) and (3), and in oral argument, that it proceeds on (2). When an indictment proceeds on category (2), it is an essential element of the offense that the confinement be in an institution or facility. Another essential element is that the confinement be by direction of the Attorney General. This indictment clearly alleges the latter. As to the former, it does not allege expressly that the confinement was in an institution or a facility and then specify the particular institution or facility. However, the words "United States Penitentiary, Marion, Illinois" sufficiently imply the kind of institution or facility referred to in the statute. Therefore, the indictment does sufficiently allege, in the language of § 751(a), that Richardson "attempt(ed) to escape ... from any institution or facility in which he (was) confined by direction of the Attorney General...." ²

The indictment's successful reference to category (2) ends the inquiry as to the opening portion of § 751(a). For reasons explained later in this opinion, however, note needs be made of the indictment's abortive and seemingly inexplicable allusion to category (3) of § 751(a). Category (3) reads: "from any custody under or by virtue of any process issued under the laws of the United States by any court, judge, or magistrate...." The indictment's apparent attempt at paraphrase is: "pursuant to (a commitment) ³ issued under the laws of the United States...." Also, note needs be made of the inclusion in the indictment of the words "in lawful custody," which appear nowhere in § 751(a).

The principal difficulty in this case arises from the remaining language of § 751(a):

shall, if the custody or confinement is by virtue of (5) an arrest on a charge of felony, or (6) conviction of any offense, be fined not more than $5,000 or imprisoned not more than five years, or both; or if the custody or confinement is (7) for extradition or by virtue of (8) an arrest or (9) charge of or for a misdemeanor, and prior to conviction, be fined not more than $1,000 or imprisoned not more than one year, or both.

The indictment does not allege expressly that at the time of the attempted escape, Richardson's custody or confinement fell within category (5), (6), (7), (8), or (9).

It is well settled that an indictment is invalid if it fails to allege an essential element of the statutory offense or, as Rule 7(c)(1) puts it, fails to state "the essential facts constituting the offense charged." United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 114, 98 L.Ed. 92 (1953); United States v. Horton, 676 F.2d 1165, 1169 (7th Cir. 1982); United States v. Purvis, 580 F.2d 853, 858 (5th Cir. 1978); reh'g denied, 585 F.2d 520, cert. denied, 440 U.S. 914, 99 S.Ct. 1229, 59 L.Ed.2d 463 (1979); United States v. London, 550 F.2d 206, 211 (5th Cir. 1977); United States v. Willis, 515 F.2d 798, 799 (7th Cir. 1975). The question arises whether it is an essential element of the offense defined in § 751(a) that the custody from which escape was attempted fell within category (5), (6), (7), (8), or (9), as well as within category (1), (2), (3), or (4).

The government contends that the jury is to perform fact-finding only as to the opening portion of § 751(a); that is, to determine whether the custody or confinement fell within category (1), (2), (3), or (4), and whether the escape was attempted. Assuming that the jury answers affirmatively, guilt of the offense is established. Solely to determine the sanctions which he or she is then free to impose, the judge is to perform fact-finding, presumably in some supplementary proceeding, to determine whether the custody or confinement fell within category (5), (6), (7), (8), or (9).

1. History and construction of § 751(a)

It was not until 1930 that Congress enacted criminal legislation on the subject of escape. Pub.L.No.71-218, § 9, 46 Stat. 325, 327 (1930), read:

Any person properly committed to the custody of the Attorney General or his authorized representative or who is confined in any penal or correctional institution, pursuant to the direction of the Attorney General, who escapes or attempts to escape therefrom shall be guilty of an offense and upon apprehension and conviction of any such offense in any United States court shall be punished by imprisonment for not more than five years, such sentence to begin upon the expiration of or upon legal release from the sentence for which said person was originally confined.

It is to be noted that with certain variations in language, the 1930 Act embodied categories (1) and (2) as they now appear in 18 U.S.C. § 751(a), and only (1) and (2).

In 1934, the Attorney General requested Congress to amend the 1930 statute. He expressed the opinion that the 1930 statute (categories (1) and (2) ) was applicable only to custody or confinement which followed conviction and urged that it be extended to custody or confinement arising prior to conviction. ⁴ He submitted a draft bill which was introduced in 1935 as H.R..3430 and would have amended the 1930 statute to read as follows:

Any person committed to the custody of the Attorney General or his authorized representative, or who is confined in any penal or correctional institution pursuant to the direction of the Attorney General, or who is in custody by virtue of any process issued under the laws of the United States by any court, judge, or commissioner, or who is in custody of an officer of the United States pursuant to lawful arrest, who escapes or attempts to escape from such custody or institution, shall be guilty of an offense and upon conviction thereof shall be punished by imprisonment of not more than 5 years. The sentence imposed hereunder shall be in addition to and independent of any sentence imposed in the case in connection with which such person is held in custody at the time of such escape or attempt to escape. If such person be under sentence at the time of such offense, the sentence imposed hereunder shall begin upon the expiration of, or upon legal release from, any sentence under which such person is held at the time of such escape or attempt to escape.

It is to be noted that with certain variations in language, H.R.3430 as introduced added categories (3) and (4), and only (3) and (4), as they now appear in 18 U.S.C. § 751(a).

As H.R.3430 in original form reveals, the Attorney General was content that imprisonment for not more than 5 years be the sanction for escape or attempted escape, without regard to whether it occurred after conviction or prior to conviction, and without regard to the nature of the underlying offense or charge to which the custody or confinement related. The House Committee on the Judiciary took the view, however, that distinctions of this kind should be drawn. The Committee proposed an amendment by which there would be deleted from the original bill the words: "and upon conviction thereof shall be punished by imprisonment of not more...