United States v. Barton Hans Peterson

Defendant was convicted of escape, 18 U.S.C. § 751 (a), after a court trial on stipulated facts. The appeal is timely and we have jurisdiction under 28 U.S.C. 1291 and 1294. The government states the issue as follows: whether defendant’s failure to report to the United States Marshal, after having been ordered by the court, in open court, to commence his custody immediately pursuant to a valid conviction and sentencing, constituted the crime of escape within the meaning of Title 18, United States Code, Section 751 (a). 1 2 More simply stated, was the defendant in custody? We agree with the district court that defendant was in custody and AFFIRM.

I. THE FACTS:

Defendant’s asserted escape stems from his plea of guilty to one firearms count of a multiple count indictment. On October 20, 1975, defendant appeared for sentencing *1036 with counsel. Sentence was imposed. Defendant requested a stay of execution of the sentence. The following colloquy ensued:

A short time later defendant’s counsel returned to the courtroom and advised the district judge that the defendant, before he and his counsel reached the Marshal’s office, had slipped away. This exchange then took place:

The…

dissenting:

The indictment charges that Peterson had been ordered to the custody of the attorney general and that “he did unlawfully and wilfully escape from such custody.” Peterson’s motion for judgment of acquittal (Rule 29, F.R.Cr.P.) should have been granted. The government did not prove escape from “such” custody.

The court had custody and the defendant may have unlawfully fled from that custody. But this is not what the government charged in the indictment. We cannot ignore the fact of the court’s custody for the convenience of saying that there was some sort of constructive attorney general precustody.

I would reverse.

592 F.2d 1035 UNITED STATES of America, Plaintiff-Appellee, v. Barton Hans PETERSON, Defendant-Appellant. No. 78-1433. United States Court of Appeals, Ninth Circuit. Jan. 26, 1979. Rehearing Denied March 21, 1979. Herbert Hoffman, Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellee. James M. McCabe (argued), San Diego, Cal., for defendant-appellant. Appeal from the United States District Court for the Southern District of California. Before CHAMBERS and ANDERSON, Circuit Judges, and CALLISTER, * District Judge. J. BLAINE ANDERSON, Circuit Judge: 1 Defendant was convicted of escape, 18 U.S.C. § 751 (a), after a court trial on stipulated facts. The appeal is timely and we have jurisdiction under 28 U.S.C. 1291 and 1294. The government states the issue as follows: whether defendant's failure to report to the United States Marshal, after having been ordered by the court, in open court, to commence his custody Immediately pursuant to a valid conviction and sentencing, constituted the crime of escape within the meaning of Title 18, United States Code, Section 751 (a). 1 More simply stated, was the defendant in custody? We agree with the district court that defendant…