United States v. Barber, Crim. A. No. 1926.

• Decision Date: 05 June 1969
• Docket Number: Crim. A. No. 1926.
• Citation: 300 F. Supp. 771
• Parties: UNITED STATES of America, Plaintiff, v. Robert L. BARBER, Defendant.
• Court: U.S. District Court — District of Delaware

300 F. Supp. 771

UNITED STATES of America, Plaintiff, v. Robert L. BARBER, Defendant.

Crim. A. No. 1926.

United States District Court D. Delaware.

June 5, 1969.

Alexander Greenfeld, U. S. Atty., and Norman Levine, Asst. U. S. Atty., Wilmington, Del., for plaintiff.

Howard M. Handelman, of Bayard, Brill & Handelman, Wilmington, Del., for defendant.

OPINION

LAYTON, District Judge.

Robert L. Barber was arrested by two agents of the F.B.I. on the afternoon of October 29, 1968. Shortly after the defendant was apprehended in his home and while the F.B.I. agents were taking him to their automobile, the agents were attacked by a group of youths and severely beaten. During the attack, the defendant left the scene and it was not until some days later that he was apprehended by the authorities. The Grand Jury for the District of Delaware returned an indictment against the defendant charging him in one count with escape from lawful custody in violation of 18 U.S.C.A. § 751(a). During February, 1969, the defendant was tried by a jury and found guilty of the offense charged. The defendant, through his attorney, filed a timely motion for a judgment of acquittal and in the alternative for a new trial. These motions are now before the Court for disposition.

Defendant's main contention is that in order to obtain a conviction for a violation of 18 U.S.C.A. § 751(a), the United States must establish that the defendant was in lawful custody on a charge of a felony or on a charge of a misdemeanor at the time of the escape. It is the defendant's position that no charge had been placed against him at the time of his flight and, therefore, a judgment of acquittal should be entered. In the alternative, the defendant urges that the Court erred in ruling that the defendant was in custody on a charge of a felony and that the defendant should be granted a new trial at which the jury would determine, under appropriate instructions, whether a charge had been placed against the defendant and, if so, whether the charge was desertion, a felony, or A.W. O.L., a misdemeanor.¹

The United States argues that there was a "charge of desertion," a felony charge, against the defendant at the time of his escape. In support of its position, the Government relies on DD Form 553, the usual notification sent to the F.B.I. by the Armed Forces advising that an individual is "Wanted by the Armed Forces."² The DD Form 553 prepared in connection with the defendant's absence states at line 13 that the defendant was "dropped from the rolls as a deserter 30 Jul. 1968."

The Government bolsters its contention that the statement at line 13 of DD Form 553 is "sufficient to meet the requirements of a charge against the defendant," by pointing to Army Regulation 630-10, promulgated by order of the Secretary of the Army pursuant to 10 U.S.C. § 3012(g). AR 630-10 provides in Section 29 that an absentee is to be dropped from the rolls as a deserter, "by appropriate morning report entered" * * * "upon expiration of 29 consecutive days of unauthorized absence." Section 7(a) of AR 630-10 states: "The Commanding Officer will cause DD 553 to be prepared for distribution not earlier than the date the absentee is dropped from the rolls of the organization as a deserter." Further, Section 8 of AR 630-10 provides for the distribution of DD Form 553. Thus, the Government contends that the entry at line 13 on DD Form 553 sufficiently places a charge against the defendant especially when read in conjunction with the underlying procedure for the preparation and distribution of the DD Form 553.

The defendant's reply to the Government argument, just outlined, is first that neither Form 553 nor the procedures initiated and circulating that Form constitutes a charge against the defendant in that nowhere in the regulations is there a requirement that it be determined that the defendant left with the intent to remain away, a necessary element of the crime of desertion, 10 U.S.C.A. § 885. Secondly, the defendant argues that whatever else it does, DD Form 553 neither charges nor states that the defendant will be charged with the crime of desertion. At most, the entry at line 13 is an administrative determination that the defendant has been absent for a given period of time and that he has been dropped from the rolls of his unit.

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