United States v. Reed

• Decision Date: 26 June 1969
• Docket Number: 32-69.,No. 31-69,31-69
• Citation: 413 F.2d 338
• Parties: UNITED STATES of America, Plaintiff, Appellee, v. Alan Eugene REED, Defendant, Appellant. UNITED STATES of America, Plaintiff, Appellee, v. Jerald Dee SARTAIN, Defendant, Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

413 F.2d 338 (1969)

UNITED STATES of America, Plaintiff, Appellee, v. Alan Eugene REED, Defendant, Appellant.

UNITED STATES of America, Plaintiff, Appellee, v. Jerald Dee SARTAIN, Defendant, Appellant.

Nos. 31-69, 32-69.

United States Court of Appeals Tenth Circuit.

June 26, 1969.

James H. Harrod, Oklahoma City, Okl., for appellant Reed.

Andrew L. Hamilton, Oklahoma City, Okl. (Robert A. Miller, Oklahoma City, Okl., on the brief), for appellant Sartain.

John W. Raley, Jr., Asst. U. S. Atty. (B. Andrew Potter, U. S. Atty., on the brief), for appellee.

Before PHILLIPS, SETH and HICKEY, Circuit Judges.

ORIE L. PHILLIPS, Circuit Judge.

On September 16, 1968, a two-count indictment was returned against Reed and Sartain¹ in the United States District Court for the Western District of Oklahoma.

The first count charged that the defendants on April 27, 1968, within such District, "by means and use of a dangerous weapon, that is a * * * steel chain, did forcibly assault, resist, oppose, impede, intimidate and interfere with J. Pat Madrid, Deputy United States Marshal, and Edward Joseph Dougherty, a person employed to assist said deputy marshal, knowing them to be officers and employees of the United States, while" Madrid and Dougherty "were engaged in the performance of their official duties," in violation of 18 U.S.C. §§ 111 and 1114.

The second count charged that on such date and within such District, the defendants, having each been convicted of a felony against the United States, and being then and there held in lawful custody by a United States Deputy Marshal and "while being transported to a place of confinement by direction of the Attorney General, did wilfully and unlawfully escape from such custody," in violation of 18 U.S.C. § 751.

Each defendant, accompanied by a court-appointed lawyer, was arraigned in the United States District Court for the Western District of Oklahoma on both counts of the indictment on October 25, 1968, at which time each of them entered pleas of not guilty, without prejudice to their right to file pretrial motions should they be so advised. Such motions were filed and disposed of. Following their disposition and on November 12, 1968, the case came on for trial. Verdicts of guilty were returned against each defendant on both counts of the indictment.

On November 21, 1968, Reed was sentenced to the custody of the Attorney General for a term of ten years on Count 1, to commence at the expiration of a sentence he was then serving on a kidnaping charge and run concurrently with a sentence theretofore imposed for murder, and five years on Count 2, to run concurrently with the sentence imposed on Count 1.

On November 21, 1968, Sartain was sentenced to the custody of the Attorney General for a term of ten years on Count 1, to commence at the expiration of a sentence he was then serving for bank robbery, and five years on Count 2, to commence at the expiration of the sentence on Count 1.

The defendants have appealed.

We have examined all of the evidence adduced at the trial and are fully convinced that it constituted substantial proof of the offenses charged against each defendant in both counts of the indictment and fully warranted the jury in finding each of them guilty beyond a reasonable doubt on both charges.

Shortly after the assault and on April 27, 1968, the defendants were captured and returned to the same status they were in at the time of their escape, namely, prisoners then serving sentences on former convictions on Federal felony charges being transferred under lawful orders from the United States Penitentiary at Leavenworth, Kansas, to Phoenix, Arizona.

No complaint charging the defendants with assault and escape was ever filed with a United States Commissioner. They were not arrested on a Commissioner's warrant, issued on a complaint filed before him, nor without a warrant on the assault and escape charges, or either of them. At the time of the escape they were already in Federal custody, serving sentences on former convictions of felonies, and on their apprehension after their escape that custody was restored. It follows that Rule 5(a) of the Federal Rules of Criminal Procedure has no application,² and the defendants' contention that they were not accorded their rights under Rule 5(a) is entirely without merit.

With respect to the time after the commission of the offenses of assault and escape within which criminal charges should have been filed against the defendants, it is sufficient to say that it is well settled that such time is controlled exclusively by the applicable statute of limitations.³ The charges were presented to the grand jury and the indictment returned within a few months after the commission of the offenses and well within the applicable statute of limitations.⁴

On September 18, 1968, two days after the indictment was returned, writs of habeas corpus ad prosequendum were duly issued, one directing the United States Marshal for the Western District of Oklahoma to bring Sartain from the United States Penitentiary at Leavenworth,...