United States v. Perez
| Decision Date | 28 February 1972 |
| Docket Number | No. 71-1634,71-1642.,71-1634 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Joseph Anthony PEREZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Walter Oglesby JONES, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
W. Thomas Bunch, Lexington, Ky. (Court appointed), on brief for defendants-appellants.
Eldon L. Webb, Asst. U. S. Atty., Lexington, Ky., for plaintiff-appellee; Eugene E. Siler, Jr., U. S. Atty., Lexington, Ky., on brief.
Before MILLER and KENT, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.
These cases present identical facts and identical issues. Each of the defendants (the parties will be referred to as in the court below) appeals from a conviction for escaping from the National Institute of Mental Health, Clinical Research Center, at Lexington, in the Eastern District of Kentucky. The defendants had been inmates of the Federal Penitentiary at Leavenworth, Kansas. While still serving valid sentences they volunteered to assist in research in narcotics and by order of the Attorney General of the United States were transferred to the National Institute of Mental Health, Clinical Research Center, at Lexington, Kentucky. At the time of transfer neither defendant was a narcotic addict. While at the Institute at Lexington the defendants escaped and were subsequently apprehended. They were indicted in separate indictments each of which charged that the named defendant "unlawfully escaped from the National Institute of Mental Health, Clinical Research Center, at which addicts are treated and cared for, to which he was properly committed and where he was legally confined by authority of the Attorney General of the United States." (Emphasis added). The caption of each indictment made reference to Title 42 U.S.C. § 261 (b):
"(b) It shall be unlawful for any person properly committed thereto to escape or attempt to escape from a hospital of the Service at which addicts are treated and cared for, and any such person upon apprehension and conviction in a United States court shall be punished by imprisonment for not more than five years, such sentence to begin upon the expiration of the sentence for which such person was originally confined." (Emphasis added).
The defendants were tried separately and in each case the defendant moved for dismissal at the close of the Government's case and at the close of all the proofs, each claiming that he had been indicted under the wrong statute. It was the theory of defense counsel that because the defendants were not addicted to narcotics they could not be "properly committed" to the institution in question, and, therefore, were not subject to prosecution under Title 42 U.S.C. § 261(b), but should have been charged under Title 18 U.S.C. § 751(a):
In each case the motion to dismiss was overruled and each defendant was convicted and sentenced. At the time of sentence the trial judge stated, on the record, that a consecutive sentence was required which is true of § 261(b), but is not true of § 751(a).
On appeal the defendants contend that they were indicted, tried and convicted under the wrong statute and that their convictions should be set aside.
A close examination of the provisions of the Public Health Service Act relating to the care, protection and treatment of narcotic addicts, Title 42 U.S.C. § 257 et seq., will readily demonstrate that the provisions of that title are not applicable to these defendants. Title 42 U.S.C. § 257(a):
"(a) The Surgeon General is authorized to provide for the confinement, care, protection, treatment, and discipline of persons addicted to the use of habit-forming narcotic drugs who are civilly committed to treatment or convicted of offenses against the United States and sentenced to treatment under the Narcotic Addict Rehabilitation Act of 1966, addicts who are committed to the custody of the Attorney General pursuant to the provisions of the Federal Youth Corrections Act, addicts who voluntarily submit themselves for treatment, and addicts convicted of offenses against the United States and who are not sentenced to treatment under the Narcotic Addict Rehabilitation Act of 1966, including persons convicted by general courts-martial and consular courts. Such care and treatment shall be provided at hospitals of the Service especially equipped for the accommodation of such patients or elsewhere where authorized under other provisions of law, and shall be designed to rehabilitate such persons, to restore them to health, and, where necessary, to train them to be self-supporting and self-reliant; but nothing in this section or in this part shall be construed to limit the authority of the Surgeon General under other provisions of law to provide for the conditional release of patients and for aftercare under supervision.
Title 42 U.S.C. § 259(a):
(a) The authority vested with the power to designate the place of confinement of a prisoner shall transfer to hospitals of the Service especially equipped for the accommodation of addicts, if accommodations are available, all addicts who have been or are hereafter sentenced to confinement, or who are now or shall hereafter be confined, in any penal, correctional, disciplinary, or reformatory institution of the United States, including those addicts convicted of offenses against the United States who are confined in State and Territorial prisons, penitentiaries, and reformatories, except that no addict shall be transferred to a hospital of the Service...
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U.S. v. Richardson, 81-1707
...or confinement relates.9 See infra text accompanying note 16.10 Cited in McBride as authority for the holding is United States v. Perez, 457 F.2d 555 (6th Cir. 1972), in which, says the McBride court, indictments were held sufficient although "the indictments for felonious escape not only f......
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State in Interest of M. S.
...cases finding defendant guilty of escape upon absconding from a hospital to which he was transferred from prison, see United States v. Perez, 457 F.2d 555 (6 Cir. 1972); Tucker v. United States, 251 F.2d Willful failure to remain within the limits of confinement or to promptly return to an ......
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...under an existing federal statute, then the indictment is not invalidated because it cited the wrong statute. United States v. Perez, 457 F.2d 555 (6th Cir. 1972); Pettway v. United States, 216 F.2d 106 (6th Cir. We conclude that since the facts alleged in the indictment charged the appella......
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...1974). While there is no Iowa case directly on point, the overwhelming weight of authority supports this view. See United States v. Perez, 457 F.2d 555 (6 Cir. 1972) (prisoners volunteering as research subjects left clinical research center); United States v. Rudinsky, 439 F.2d 1074 (6 Cir.......