United States v. Darryl Vowiell

ORDER

The slip opinion filed May 5, 1988 is withdrawn;

This Opinion and dissent are hereby filed in its place;

The petition for rehearing filed with respect to the opinion filed May 5, 1988, is rejected as moot;

No further petitions for rehearing will be entertained with respect to this opinion. The mandate shall issue immediately.

SO ORDERED.

OPINION

Darryl Vowiell appeals his convictions for offenses stemming from the escape of three federal prisoners. Vowiell claims that the district court erred in admitting the statement of a coconspirator and in giving an ambiguous jury instruction. We REVERSE and REMAND for a new trial.

I.

FACTS AND PROCEEDINGS BELOW

On April 16, 1986, Rodney Murdoch, Sylvia Brown and Shelley Bosch cut through a fence and escaped from the Federal Correctional Institute at Pleasanton, California. David Record met the escapees just outside the fence. Record dropped Murdoch off in San Francisco and drove the two women to Morgan Hill, California, to meet Robert Shutte (aka “B.J.”). Shutte did not appear, so Bosch and Brown stayed with Record for two days in San Jose. On April 19, Shutte picked up the women at the prearranged Morgan Hill location and…

dissenting:

As the court trenchantly sums up the evidence against him, Darrell Vowiell obtained bolt cutters for Rodney Murdock, Sylvia Brown and Shelley Bosch, three prisoners at Pleasanton, arranged for a get away car and arranged to have a driver for the car. A prisoner at Pleasanton himself, Vowiell master-minded the escape of the other three from prison. Four days after the prisoners had gotten out of Pleasanton Vowiell was still giving them advice on how to make their escape good. Nonetheless, the court holds that the conviction of Vow-iell should be reversed.

Four days after the breakout, Murdock, Brown and Bosch were still engaged in the federal crime of escape. 18 U.S.C. § 751 (a). It is “clear beyond peradventure that escape from federal custody as defined in § 751(a) is a continuing offense and that an escapee can be held liable for failure to return to custody as well as for his initial departure”. United States v. Bailey, 444 U.S. 394, 413 , 100 S.Ct. 624, 636 , 62 L.Ed.2d 575 (1980). As the prisoners were still escaping it is very hard to understand why Vowiell in advising them was not committing the crime of aiding or assisting the escape. 18 U.S.C. § 752 .

The…

869 F.2d 1264 27 Fed. R. Evid. Serv. 1420 UNITED STATES of America, Plaintiff-Appellee, v. Darryl VOWIELL, Defendant-Appellant. No. 87-1039. United States Court of Appeals, Ninth Circuit. Submitted Dec. 16, 1987 * . Decided March 8, 1989. Manton L. Selby, San Francisco, Cal., for defendant-appellant. Mark N. Zanides, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Northern District of California. Before FLETCHER, WIGGINS and NOONAN, Circuit Judges. ORDER 1 The slip opinion filed May 5, 1988 is withdrawn; 2 This Opinion and dissent are hereby filed in its place; 3 The petition for rehearing filed with respect to the opinion filed May 5, 1988, is rejected as moot; 4 No further petitions for rehearing will be entertained with respect to this opinion. The mandate shall issue immediately. 5 SO ORDERED. OPINION WIGGINS, Circuit Judge: 6 Darryl Vowiell appeals his convictions for offenses stemming from the escape of three federal prisoners. Vowiell claims that the district court erred in admitting the statement of a coconspirator and in giving an ambiguous jury instruction. We REVERSE and REMAND for a new trial. I. FACTS…