UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Hastie, n.* (Footnote Omitted) United States Senior Circuit Judge for the Third Circuit, and Wright and Wilkey, Circuit Judges. Wright, Circuit Judge, concurring. Opinion for the Court filed by Circuit Judge Wilkey. Concurring Opinion filed by Circuit Judge Wright.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WILKEY
The appellant phrases the only question on appeal:
Whether the indictment in this case, which did not specify that the escape charged was from "custody or confinement . . . by virtue of an arrest on a charge of felonyor conviction of any offense," alleged with sufficient particularity the felony offense of escape from federal custody set out in 18 U.S.C. § 751(a), or whether the indictment was sufficient only to charge a misdemeanor violation of that provision. *fn1
The appellant pled guilty and received a sentence of 18-54 months, which can only be supported by an indictment charging a felony. We find the sentence valid.
Central to understanding the impact of the statute on the defendant is to know that when appellant escaped, he was confined as a result of his conviction for attempted unauthorized use of a motor vehicle, a fact well known to appellant. Section 751(a) provides that if an escapee's "custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any offense, [he shall] be fined not more than $5,000 or imprisoned not more than five years, or both . . . ." *fn2 Since appellant was confined by virtue of a conviction at the time of his escape, he was liable for a penalty of up to five years' imprisonment under the statute. Thus, the trial court's sentence was lawful.
The indictment of appellant for escape is rather artlessly drawn. It states that appellant violated 18 U.S.C. § 751(a) by "feloniously" escaping from the custody of the Attorney General on 9 December 1970. Appellant contends that since the indictment fails to allege that appellant's confinement was by virtue of "an arrest on a charge of felony, or conviction of any offense," the indictment can state at most a misdemeanor. Since the indictment does not specify that appellant's confinement was "for extradition or by virtue of an arrest or charge of or for a misdemeanor," which is the nature of custody that gives rise to a misdemeanor charge under the statute, the indictment states a misdemeanor charge no more completely than it states a felony. *fn3
. . . first, whether the indictment "contains the elements of the offense intended to be charged, 'and sufficiently apprises the defendant of what he must be prepared to meet,'" and, secondly, "'in case any other proceedings are taken against him for a similar offence, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.' [Citations omitted.]" *fn4
As to the first criterion:
(1) Arguably, appellant's indictment fails to state all the elements of his offense, since it omits the nature of the custody from which he escaped. However, the nature of appellant's custody is not an "element" of appellant's offense in the sense that it is an integral part of his mens rea or actus reus. Rather, it is a circumstance in which he committed his offense.
(2) Appellant does not argue that the failure of the indictment to describe the nature of his custody prejudiced him in the preparation of his defense. Indeed, the court can take judicial notice of the public records that demonstrate that appellant was confined for a misdemeanor conviction when he escaped. Therefore, he could not have defended against the charge of felonious escape by proving that he was in custody on some other basis.
(3) Finally, it should be noted that appellant did not enter his guilty plea under a misapprehension about the charge against him. Before the court accepted appellant's guilty plea, the prosecutor described all the facts that formed the basis of the Government's charge, including the fact that appellant was confined by virtue of his conviction for attempted unauthorized use of a motor vehicle. *fn5 Furthermore, appellant explicitly acknowledged that he could be sentenced to up to five years' imprisonment for the offense charged. *fn6 Thus, whatever the shortcomings of the indictment, it is clear from the record that appellant was on notice concerning the exact nature of the offense to which he pleaded guilty.
The second criterion of a sufficient indictment under Russell is that it must state the offense in a manner that precludes the defendant from suffering double jeopardy. Appellant's indictment meets this criterion. It is clear that appellant pleaded guilty to escaping from the custody of the Attorney General on 9 December 1970. This forecloses further prosecution of appellant under 18 U.S.C. § 751(a) on the basis of appellant's 9 December 1970 activities. Any doubt may be ...