U.S. v. Rosa-Ortiz

• Citation: 348 F.3d 33
• Decision Date: 28 October 2003
• Docket Number: No. 02-2362.,02-2362.
• Parties: UNITED STATES, Appellee, v. Miguel ROSA-ORTIZ, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

348 F.3d 33

UNITED STATES, Appellee, v. Miguel ROSA-ORTIZ, Defendant, Appellant.

No. 02-2362.

United States Court of Appeals, First Circuit.

Heard September 3, 2003.

Decided October 28, 2003.

Rafael F. Castro Lang for appellant.

Nelson Perez-Sosa, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, and Sonia I. Torres-Pabon, Assistant United States Attorney, were on brief, for appellee.

Before LYNCH, Circuit Judge, SILER, Circuit Judge,^* and LIPEZ, Circuit Judge.

LYNCH, Circuit Judge.

Miguel Rosa-Ortiz pleaded guilty in federal court to conspiracy to violate the Federal Escape Act, 18 U.S.C. § 751(a), which criminalizes escape and attempted escape by persons who are in federal custody under specified conditions — including, as the statute pertains to this case, persons in custody "by virtue of an arrest on a charge of felony, or conviction of any offense." But no court of appeals may uphold a plea of guilty to conduct that is not within the crime charged. On appeal, Rosa-Ortiz says that § 751(a) does not prohibit the conduct alleged in the indictment. We agree.

The conspiracy charge was based on evidence that Rosa-Ortiz helped his co-defendant, Maximiliano Amparo-Concepción, attempt to escape from federal prison in Puerto Rico. Yet not all escapes from federal custody violate § 751(a). We conclude that Amparo-Concepción was not in federal custody "by virtue of an arrest on a charge of felony, or conviction of any offense" (whether state or federal), but instead solely by virtue of his detention on a federal material witness warrant. Cf. 18 U.S.C. § 3144. By its own terms, the Federal Escape Act does not proscribe escapes under such circumstances,¹ which means that Rosa-Ortiz cannot be guilty of conspiring to violate that Act.² Accordingly, we vacate the judgment of conviction and remand with instructions to dismiss the indictment.

I.

On February 7, 2001, a federal grand jury returned an indictment against Rosa-Ortiz and four co-conspirators, including Amparo-Concepción, for conspiracy to violate § 751(a).³ According to the government's summary of the facts, which was attached to the plea agreement and acknowledged by Rosa-Ortiz in writing, the defendants plotted to free Amparo-Concepción from the federal Metropolitan Detention Center (MDC) in Puerto Rico. The escape plan involved smuggling a bar-cutting tool into the MDC, meeting Amparo-Concepción outside the prison with a getaway car and a change of clothes, and then fleeing to the Dominican Republic. Rosa-Ortiz's role was to obtain the getaway car, recruit others to help, handle funds sent from the Dominican Republic to finance the escape, and coordinate an advance trip to the perimeter of the MDC so that Amparo-Concepción could identify the chosen getaway car. Rosa-Ortiz did in fact act on most of these plans, including driving the getaway car to the perimeter of the MDC on February 3, 2001. The FBI foiled the plot.

At the time of the escape attempt, Amparo-Concepción was being held at the MDC pursuant to a material witness warrant issued on December 7, 2000 by the federal district court in Puerto Rico. Cf. § 3144 (authorizing, in limited circumstances, the detention of a witness whose testimony is material to a criminal proceeding). Until that time, Amparo-Concepción had been serving a sentence in a Puerto Rico jail for bank fraud, a felony under Puerto Rico law. While in the custody of the Commonwealth, Amparo-Concepción voluntarily contacted federal authorities with information concerning a scheme among his fellow inmates to use fraudulent immigration documents and faked Supreme Court orders to obtain premature release. Federal investigators became interested in this information and obtained the material witness warrant for Amparo-Concepción's transfer to federal custody.⁴ It was on that basis alone that Amparo-Concepción was moved from the Commonwealth jail to the MDC; the government does not contend that any other ground existed for Amparo-Concepción's detention by federal authorities.

On April 17, 2002, Rosa-Ortiz pleaded guilty to the charged conspiracy to violate § 751(a). The district court sentenced him to fifteen months in prison, plus a supervised release term of three years and a special monetary assessment of $100. On appeal, Rosa-Ortiz contends that § 751(a) does not prohibit escape or attempted escape from federal material witness detention. If Amparo-Concepción's escape attempt did not violate § 751(a), then Rosa-Ortiz did not conspire to "commit [that] offense against the United States," 18 U.S.C. § 371, and his conviction cannot stand.⁵

II.

A. Waiver

The merits of Rosa-Ortiz's appeal are properly before us. In its brief, the United States contended that Rosa-Ortiz waived his right to challenge the indictment when he entered an unconditional plea of guilty. See United States v. Lujan, 324 F.3d 27, 30 (1st Cir.2003) (a guilty plea waives all nonjurisdictional challenges to a criminal conviction). At oral argument, however, the government correctly acknowledged that Rosa-Ortiz's guilty plea does not preclude him from arguing on appeal that the statute of conviction does not actually proscribe the conduct charged in the indictment. As this court has explained, "a federal court has jurisdiction to try criminal cases only when the information or indictment alleges a violation of a valid federal law." United States v. Saade, 652 F.2d 1126, 1134 (1st Cir.1981). A federal court similarly lacks jurisdiction to enter a judgment of conviction when the indictment charges no offense under federal law whatsoever. See United States v. Peter, 310 F.3d 709, 713 (11th Cir.2002) ("[A] district court is without jurisdiction to accept a guilty plea to a `non-offense.'"); United States v. Andrade, 83 F.3d 729, 731 (5th Cir.1996) (per curiam) (same).

Because jurisdictional challenges to an indictment may be raised at any time, Fed.R.Crim.P. 12(b)(3)(B), including for the first time on appeal, United States v. Mojica-Baez, 229 F.3d 292, 309 (1st Cir.2000), Rosa-Ortiz's guilty plea did not waive his right to argue that he has been imprisoned for conduct that Congress did not proscribe in the crime charged.⁶

B. Interpretation of § 751(a)

This case presents a pure issue of statutory interpretation, which we review de novo. United States v. Molak, 276 F.3d 45, 49 (1st Cir.2002).

As in any matter of statutory interpretation, the text of the statute is our starting point. Id. In relevant part, § 751(a) provides:

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 magistrate judge, 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 for not more than five years, or both....

This circuit has never had occasion to consider the elements of an offense under § 751(a).

The broad preamble text, which purports to cover any person who escapes "from any custody under ... any process issued ... by any court," plainly would encompass Amparo-Concepción's escape from federal material witness detention. The preamble, however, has consistently been held not to define all of the elements of the offense, and we agree. Rather, because of the narrower sentencing terms of the statute,⁷ the government must prove one of the enumerated bases for the escapee's federal custody. See United States v. Richardson, 687 F.2d 952, 954-62 (7th Cir.1982) (discussing § 751(a) and its history at length); see also United States v. Patterson, 230 F.3d 1168, 1172 n. 2 (9th Cir.2000); United States v. Evans, 159 F.3d 908, 910 (4th Cir.1998); United States v. Vanover, 888 F.2d 1117, 1121 (6th Cir.1989).

Accordingly, courts have distilled three essential elements of the offense of escape under § 751(a):

(1) escape or attempted escape;

(2) from the custody of the Attorney General or his appointed representative, or from a place where the defendant is confined at the direction of the Attorney General;

(3) where the custody is by virtue of

(i) arrest on a charge of felony; or

(ii) conviction of any offense.⁸

See Evans, 159 F.3d at 910; Vanover, 888 F.2d at 1121; United States v. Edrington, 726 F.2d 1029, 1031 (5th Cir.1984). The government acknowledges these elements. The dispute in this case involves only the third element.

Whether and in what circumstances § 751(a) reaches escapes from material witness detention under 18 U.S.C. § 3144 appears to be a question of first impression in the courts of appeals. The United States concedes that Amparo-Concepción's arrest on a material witness warrant did not, by itself, constitute "an arrest on a charge of felony" or a "conviction of any offense." The government argues, however, that because Amparo-Concepción had already been convicted of a felony and incarcerated when he was transferred to federal custody, he was in federal custody "by virtue of conviction of any offense" and is therefore subject to prosecution under § 751(a).⁹ The conviction in question, the government urges, need not be a federal conviction.

There are several flaws in the government's reasoning. First, even assuming the government is correct that a state conviction may satisfy the "conviction of any offense" clause of § 751(a) in appropriate circumstances,¹⁰ the statute unequivocally requires that the escapee be in federal custody "by virtue of" that conviction. § 751(a); see Richardson, 687 F.2d at 966-67 (reversing escape conviction under § 751(a) for insufficient evidence that the defendant's custody was "by virtue of" a conviction of any offense). The statutory...