CHARLES DAVID KELLER, PETITIONER V. UNITED STATES OF AMERICA No. 90-6329 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 16-19) is reported at 912 F.2d 1058. JURISDICTION The judgment of the court of appeals was entered on August 24, 1990. The petition for a writ of certiorari was filed on November 20, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner "escape(d)" within the meaning of 18 U.S.C. 751(a) and 4082(a) by failing to report to a residential detention center and fleeing to Pennsylvania after his probation was revoked. STATEMENT Following a jury trial in the United States District Court for the District of Oregon, petitioner was convicted of escaping from federal custody, in violation of 18 U.S.C. 751(a) and 4082(a). He was sentenced to a three-year term of imprisonment, to run consecutively to a term of imprisonment the court imposed for violation of the conditions of a probation order the court had previously imposed in connection with petitioner's tax offenses. 1. The facts are not in dispute. In 1984, petitioner was convicted in the United States District Court for the District of Oregon on two felony counts of tax evasion, in violation of 26 U.S.C. 7206, and two misdemeanor counts of failure to file tax returns, in violation of 26 U.S.C. 7203. He was sentenced to concurrent three-year terms of imprisonment on the felony counts, to be followed by concurrent five-year terms of probation on the misdemeanor counts. C.A. Excerpt of Record 19. Probation was conditioned on payment of the taxes petitioner owed and on the payment of $1,658 in prosecution costs and a $5,000 fine. On October 18, 1985, the district court reduced petitioner's sentence on the felony counts to concurrent one-year terms of imprisonment. Id. at 34-35. He was released from prison the same day. Id. at 36. On July 23, 1987, the district court revoked petitioner's probation on one of the misdemeanor counts because petitioner had failed to meet the fine payment schedule. The court sentenced him to 120 days in confinement. In response to petitioner's request that he be allowed to keep his job, the court recommended to the Bureau of Prisons that he be allowed to serve his sentence at the Clackamas County residential detention center. Because petitioner's job had irregular hours, the court, in response to petitioner's request, delayed petitioner's reporting date for 18 days to 4 p.m. on August 10, 1987, so that administrative steps could be taken to ensure that petitioner could hold his job while he was detained at the center. July 23, 1987, Tr. 6; Pet. App. 17. Petitioner never appeared at the residential detention center, but instead quit his job and left Oregon. Tr. 42, 45. He was indicted in August 1987 on one count of escaping from custody, in violation of 18 U.S.C. 751(a) and 18 U.S.C. 4208(a). /1/ One year later, petitioner was arrested in Wilkes Barre, Pennsylvania, where he was living and working under an assumed name. Tr. 50. 2. Prior to trial on the escape charge, the district court denied petitioner's motion to dismiss the indictment on the ground that petitioner's failure to appear to commence service of his sentence did not constitute an "escape" under 18 U.S.C. 751(a) and 4208(a). C.A. Excerpt of Record 7-9, 77. The court also declined to give petitioner's requested jury instruction that "custody" within the meaning of the escape statutes means that "the individual must have been actually seized or have surrendered to authorities pursuant to the court order directing that (petitioner) be taken into custody." Id. at 67. Instead, it instructed the jury that "custody begins when an order of the court is issued requiring a defendant to report to an institution to serve a sentence." Pet. App. 19. 3. The court of appeals affirmed. Pet. App. 16-19. The court "had no doubt that (petitioner) was effectively ordered into custody as of 4:00 p.m. on August 10," and "(a)n instant later, he was an escapee." Ibid. The court explained that "(t)he custody that matured at 4:00 p.m. on August 10 was imposed 'by virtue of . . . process issued under the laws of the United States by (a) court, (or) judge,' as specified by section 751(a)." Ibid. The court relied on Tennant v. United States, 407 F.2d 52 (9th Cir. 1969), in reaching that conclusion. In that case, an escape conviction was affirmed where a motorist sped away after being told by a customs inspector that he was under arrest. The court concluded that the decision in Tennant showed that a person did not have to be physically restrained in order to escape, but just had to be informed that he was under restraint. Petitioner, the court noted, "was not merely informed; he was sentenced." Pet. App. 18. The court added (id. at 19) that its decision was "obliquely supported" by United States v. Overaker, 766 F.2d 1326 (9th Cir. 1985), where the court affirmed the escape conviction of a prisoner who failed to report to a federal prison camp in Arizona after being permitted an unescorted transfer to the Arizona prison camp from a federal prison in Minnesota. Petitioner argued that his failure to report to the detention center would more appropriately be punished under 18 U.S.C. 3146(a)(2), which applies to anyone who "having been released under this chapter knowingly * * * fails to surrender for service of sentence pursuant to a court order." In response, the court of appeals noted that the statute would not appear to apply to petitioner, since he was not released pursuant to the relevant chapter of Title 18, which contains the Bail Reform Act. In any event, the court noted, "the possibility that section 3146 could apply does not preclude the application of Sections 751(a) and 4082(a)." Ibid. ARGUMENT The courts of appeals have consistently held that a defendant is in constructive custody if he is currently subject to a sentence even though he is not actually in the physical custody of federal officials. See, e.g., United States v. Vanover, 888 F.2d 1117 (6th Cir. 1989), cert. denied, 110 S. Ct. 2177 (1990) (walk-away from halfway house); United States v. Overaker, supra (failure to report to Arizona federal prison camp after permitted unescorted transfer from Minnesota federal prison); United States v. Wray, 608 F.2d 722 (8th Cir. 1979), cert. denied, 444 U.S. 1048 (1980) (similar unescorted transfer); United States v. Schaffer, 664 F.2d 824 (11th Cir. 1981) (departure from nongovernmental hospital under contract to provide medical services to prisoners); United States v. McCue, 643 F.2d 394 (6th Cir.), cert. denied, 451 U.S. 992 (1981) (escape from prison bus while being transported to testify in response to writ of habeas corpus ad testificandum); United States v. Leonard, 498 F.2d 754 (D.C. Cir. 1974) (failure to remain where voluntarily aiding in fighting fire); see also United States v. Katz, No. 89-35797 (9th Cir. Dec. 11, 1990) (dicta) (fugitive from bail pending appeal); United States v. Stewart, 917 F.2d 970 (6th Cir. 1990) (failure to return to halfway house); United States v. Whitehorse, 909 F.2d 316 (8th Cir. 1990) (failure to return from halfway house); United States v. Creed, 897 F.2d 963 (8th Cir. 1990) (failure to return from furlough); United States v. Bigelow, 897 F.2d 160 (5th Cir. 1990) (failure to return to rehabilitation facility after signing out for work); United States v. Rogers, 897 F.2d 134 (4th Cir. 1990) (walk-away from pre-release facility); United States v. Coe, 891 F.2d 405 (2d Cir. 1989) (failure to report to halfway house following permission for unescorted transfer from detention facility); United States v. Puzzanghera, 820 F.2d 25 (1st Cir.), cert. denied, 484 U.S. 900 (1987) (failure to return from furlough). Those decisions establish that a person need not be in actual physical custody or under the direct supervison of a Marshal in order to escape within the meaning of Sections 751(a) and 4082(a). As the court of appeals concluded, those decisions indicate that a person need only know that he is under restraint, like the motorist in Tennant, supra. Petitioner knew that he was under restraint as of 4 p.m. on August 10, 1987. /2/ Even if petitioner were correct that the escape statute is inapplicable to someone who has not yet started serving his sentence, he would not necessarily benefit from that rule. Petitioner is not in the position of a person who has simply been sentenced and ordered to report to begin serving his sentence on a particular day. Petitioner was incarcerated for his offenses and conditionally released on probation. He violated the conditions of his probation and was therefore ordered returned to physical custody. His case is therefore closely analogous to cases in which a defendant is temporarily authorized to be released from physical custody, but fails to return to the facility where he is being held when his authorized leave terminates. In that setting, as the cases cited above indicate, the courts have uniformly held that the defendant's failure to return to the facility constitutes an "escape" within the meaning of Section 751(a). The same analysis applies here: petitioner was conditionally released from custody; he violated the conditions of his release; he was ordered to return to physical custody; and he flouted that order by fleeing from the jurisdiction. Petitioner should not be permitted to take advantage of the fact that the court permitted him to report for service of his term in the detention center rather than, for example, immediately ordering him confined in the center and arranging for him to be furloughed for a period sufficient for him to make arrangements to hold his job while serving his sentence in the detention center. Review is not warranted on account of petitioner's contention that he should have been sentenced under 18 U.S.C. 3146(b)(2) for failing "to surrender for service of sentence." Because petitioner was not ordered released pursuant to the procedures set forth in the Bail Reform Act, he may not have been subject to prosecution under Section 3146(b)(2) and thus, under petitioner's view, would not have been prosecutable at all for his failure to report to begin serving his sentence. In any event, even if Section 3146(b)(2) applied to petitioner's conduct, it is well settled that "when an act violates more than one criminal statute, the Government may prosecute under either as long as it does not discriminate against any class of defendants." United States v. Batchelder, 442 U.S. 114, 123-124 (1979); see also Garrett v. United States, 471 U.S. 773 (1985); United States v. Cavada, 821 F.2d 1046, 1047-1049 (5th Cir.), cert. denied, 484 U.S. 932 (1987). The fact that one statute is more specific than another is not sufficient to alter this rule; there is an exception only if Congress plainly demonstrates an intent to supplant one statute with another. United States v. Hopkins, 916 F.2d 207 (5th Cir. 1990); United States v. Zabel, 702 F.2d 704, 707-708 (8th Cir.), cert. denied, 464 U.S. 934 (1983). Since petitioner fled while he was in custody, he was properly convicted under Sections 751(a) and 4082(a), even if he could have been prosecuted under Section 3146(b)(2). No other court of appeals has decided the precise question presented in this case -- whether fleeing instead of reporting to serve a sentence constitutes escape under Sections 751(a) and 4082(a). In the absence of a conflict in the circuits, further review of the novel question presented in this case is not warranted. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General KAREN SKRIVSETH Attorney JANUARY 1991 /1/ At the time of petitioner's offense, Section 751(a) provided that "(w)hoever 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 commissioner, 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 not more than $5,000 or imprisoned not more than five years, or both * * *." Section 751(a) was amended in 1988 to apply to escapes in connection with violations of the immigration laws. Pub. L. No. 100-690, Section 7055, 102 Stat. 4402 (Nov. 18, 1988). Section 4082(a) provides that "(t)he willful failure of a prisoner to remain within the extended limits of his confinement, or to return within the time prescribed to an institution or facility designated by the Attorney General, shall be deemed an escape from the custody of the Attorney General punishable as provided in chapter 35 of this title," which includes Section 751(a). /2/ The decisions also show that the federal escape statutes are not designed simply to punish persons who create dangerous situations by attempting to escape. Section 4082(a) makes that point clear by explicitly proscribing the failure to remain within the extended limits of confinement or to return to a detention facility. Thus, while there was no immediate danger posed by petitioner's flight (although, of course, his flight meant that attempts would be made to apprehend him), that is equally true, for example, when a person fails to return to a halfway house after being permitted temporarily to leave the facility.