PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

_____________ 

No. 13-4296 

_____________ 

UNITED STATES OF AMERICA 

 v. 

 KEVIN WILLIAM SMALL, 

 Appellant 

_____________ 

On Appeal from the United States District Court 

for the Middle District of Pennsylvania 

(No. 1-12-cr-00067-001) 

District Judge: Hon. Gene E.K. Pratter 

Argued: October 1, 2014 

____________ 

Before: AMBRO, CHAGARES, and VANASKIE, Circuit 

Judges. 

(Filed: July 13, 2015) 

Eleni Kousoulis, Esq. [ARGUED] 

Tieffa N. Harper, Esq. 

Office of Federal Public Defender 

800 King Street, Suite 200 

Wilmington, DE 19801 

 Attorneys for Appellant 

Peter J. Smith 

Christy H. Fawcett, Esq. [ARGUED] 

Office of United States Attorney 

228 Walnut Street, Suite 220 

Harrisburg, PA 17108 
2 

 Attorney for Appellee 

____________ 

OPINION 

____________ 

CHAGARES, Circuit Judge. 

 Kevin William Small was convicted of tax fraud in 

federal district court while he still had time left to serve on a 

Pennsylvania state prison sentence. He arranged for a forged 

court order purporting to vacate his federal sentence to be 

presented to Pennsylvania state prison officials and, as a 

result, was released at the end of his state sentence rather than 

turned over to federal officials to begin serving his federal 

sentence. This case presents the question of whether Small 

thereby escaped from “custody” within the meaning of the 

federal escape statute, 18 U.S.C. § 751. We hold that he did, 

and we will affirm the judgment of the District Court. 

I. 

 On October 5, 2007, Small was sentenced by a federal 

court to 135 months of imprisonment for filing false tax 

returns. He was serving a separate sentence in Pennsylvania 

state prison at that time, and the District Court ruled that his 

federal sentence was to be served consecutive to his state 

sentence. After sentencing, he was returned to the 

Pennsylvania State Correctional Institution at Huntingdon 

(“Huntingdon”) to serve the remainder of his state sentence. 

The U.S. Marshal subsequently served the Commonwealth 

Department of Corrections with a document entitled 

“Detainer Based on Federal Judgment and Commitment,” 

which governed Small’s transfer to federal authorities upon 

completion of his state sentence. 

 In October 2011, the records staff at Huntingdon 

received documents in the mail, ostensibly from the Clerk of 

Court for the United States District Court for the Middle 

District of Pennsylvania, but which in reality were forgeries 

sent at Small’s direction. The documents appeared to bear the 
3 

Clerk’s signature and directed the entry of an accompanying 

order, supposedly issued by the District Court, vacating 

Small’s federal conviction and sentence. The order appeared 

to have been signed by Judge Christopher C. Conner and to 

bear the District Court’s official seal. The officials at 

Huntingdon accepted the papers, and Small was released 

upon the completion of his state sentence in January 2012, 

unbeknownst to federal authorities. In March 2012, a federal 

agent learned of Small’s release from Huntingdon and his 

failure to begin his federal sentence. Federal agents quickly 

located and arrested Small. 

 Small was indicted and charged with several crimes: 

forging the signature of a United States judge, forging a seal 

of a United States agency, mail fraud, conspiracy, and, the 

only relevant crime for our purposes, escape. Small filed a 

motion to dismiss the escape charge on the ground that he 

was never in federal custody, a requisite element of the crime. 

His motion was denied by the District Court on April 30, 

2013. He subsequently entered an “open plea” of guilty to all 

counts and was sentenced to a term of 60 months of 

imprisonment on each count, to be served concurrently with 

one another but consecutively to his tax fraud sentence. 

Small timely appealed. 

II. 

 The District Court had jurisdiction pursuant to 18 

U.S.C. § 3231, and we have jurisdiction pursuant to 28 U.S.C. 

§ 1291. 

 We “apply a mixed standard of review to a district 

court’s decision on a motion to dismiss an indictment, 

exercising plenary review over legal conclusions and clear 

error review over factual findings.” United States v. Stock, 

728 F.3d 287, 291 (3d Cir. 2013). 

III. 

 Small raises two arguments on appeal: first, that he 

may challenge the sufficiency of Count III of the superseding 

indictment despite his unconditional guilty plea, and, second, 
4 

that Count III of the superseding indictment is insufficient on 

its face. 

 As a threshold matter, Small is correct that he may 

challenge the sufficiency of his indictment, and the 

Government does not argue otherwise. However, Small’s 

arguments regarding the sufficiency of the indictment are 

unavailing. 

A. 

 Former Federal Rule of Criminal Procedure 

12(b)(3)(B), in effect when this case was briefed and argued,1

provided that “at any time while the case is pending, the court 

may hear a claim that the indictment or information fails to 

invoke the court’s jurisdiction or to state an offense.” Even 

when a defendant enters an unconditional guilty plea, Rule 

12(b)(3)(B) permits the defendant “to challenge for the first 

time on appeal the sufficiency of his superseding indictment.” 

United States v. Hedaithy, 392 F.3d 580, 589 (3d Cir. 2004). 

The Government does not dispute that Small may challenge 

the sufficiency of the indictment at this stage. Accordingly, 

we consider Small’s appeal on the merits. 

B. 

1. 

 Small argues that the Government’s indictment was 

insufficient to make out a violation of the escape statute, 18 

U.S.C. § 751, either because it incorrectly stated the basis for 

Small’s state custody or because neither the federal detainer 

nor the District Court’s judgment of conviction and sentence 

satisfied the custodial requirement of the statute. To be 

sufficient, an indictment must allege that the defendant 

performed acts which, if proven, constitute a violation of the 

 

1

 The Rule has since been amended, with the amendments 

taking effect on December 1, 2014. See Order of the United 

States Supreme Court Amending the Federal Rules of 

Criminal Procedure (April 25, 2014), available at 

http://www.supremecourt.gov/orders/courtorders/frcr14_khlo.

pdf. 
5 

law that he is charged with violating. See Hedaithy, 392 F.3d 

at 589. In this case, the statute provides: 

Whoever 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 magistrate judge, 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 under this title or 

imprisoned not more than five 

years, or both . . . . 

18 U.S.C. § 751(a). The Government meets its burden of 

proving a violation of the statute by establishing that the 

defendant “absent[ed]” himself “from custody without 

permission.” United States v. Bailey, 444 U.S. 394, 407 

(1980). This case presents the question of whether Small was 

ever in “custody” within the meaning of the statute. 

 On its face, the statute requires the Government to 

demonstrate that one of the following was true at the time of 

escape: (1) the defendant was in the custody of the Attorney 

General or an authorized representative; (2) the defendant 

was confined in an institution at the direction of the Attorney 

General; (3) the defendant was in custody by virtue of any 

process issued under the laws of the United States by any 

court, judge, or magistrate judge; or (4) the defendant was in 

the custody of an officer or employee of the United States 

pursuant to a lawful arrest. See 18 U.S.C. § 751(a). Other 

Courts of Appeals have also applied this straightforward 

reading of the statute. See, e.g., United States v. Gowdy, 628 
6 

F.3d 1265, 1267 (11th Cir. 2010); United States v. Evans, 159 

F.3d 908, 910 (4th Cir. 1998). 

 This case implicates the third prong — that the 

defendant was in custody “by virtue of any process issued 

under the laws of the United States by any court, judge, or 

magistrate judge.” 18 U.S.C. § 751(a). At oral argument, the 

Government argued that the predicate “process issued” it 

relies upon is the District Court’s judgment of conviction and 

sentence, not the federal detainer lodged with officials at 

Huntingdon. Of course, because of the means by which 

Small effected his escape, he was never in the physical 

custody of the federal government or its agents. The statute, 

however, specifies many forms of restraint from which a 

person may escape, including from an “institution,” from 

“custody . . . by virtue of . . . process,” or from “custody . . . 

pursuant to lawful arrest.” Id. Although it does not define 

the word “custody,” we believe the various kinds of restraints 

enumerated indicate Congress’s intent that the statute be 

applied broadly to those who would avoid a sentence they are 

required by law to serve. A reading of the statute that limits 

“custody” to physical restraint would also read the word 

“confinement” out of the portion of the statute specifying the 

penalty for its violation. See id. (“Whoever escapes . . . shall, 

if the custody or confinement is by virtue of arrest on a 

charge of felony [be sentenced.]” (emphasis added)). Thus, 

we agree with other Courts of Appeals that have held that 

“custody does not require ‘direct physical restraint’ and may 

be ‘minimal’ or ‘constructive.’” Gowdy, 628 F.3d at 1267 

(quoting United States v. Depew, 977 F.2d 1412, 1414 (10th 

Cir. 1992)); see also United States v. Keller, 912 F.2d 1058, 

1059 (9th Cir. 1990); United States v. Cluck, 542 F.2d 728, 

731 (8th Cir. 1976).2 

 

2

 As the Court of Appeals for the Eleventh Circuit has noted, 

in 2006 and 2007 nearly forty percent of escape crimes 

involved “failures to report or return,” where the defendant 

simply did not show up to begin serving a sentence or failed 

to return from an authorized period of absence and therefore 

was not in physical custody at the time of escape. Gowdy, 

628 F.3d at 1268 (citing Chambers v. United States, 555 U.S. 

122, 129 (2009)). 
7 

 The Court of Appeals in Gowdy faced facts nearly 

identical to those presented by this appeal, except that the 

defendant in that case was arguably less culpable than Small. 

In Gowdy, the defendant was supposed to serve a federal 

sentence after two state sentences ended, one in Mississippi 

and one in Alabama. Gowdy, 628 F.3d at 1266. At some 

point, officials in Mississippi lost Gowdy’s federal detainer 

and thus failed to transfer it to the Alabama correctional 

officials. Id. Gowdy was released upon completion of his 

Alabama state sentence and was later charged with escape 

once federal officials realized the error. Id. at 166–67. 

 The Gowdy court upheld his conviction, holding that 

“the custodial requirement of § 751(a) is satisfied where a 

lawful judgment of conviction has been issued by a court 

against the defendant.” Id. at 1268. Other Courts of Appeals 

have similarly held that the elements of escape are established 

in the analogous situation where a defendant fails to report to 

begin a sentence. See, e.g., United States v. Hart, 578 F.3d 

674, 681 (7th Cir. 2009) (holding that “[i]t is clear from our 

cases that the [escape] statute prohibits not only escapes from 

secure custody, but also walkaways from nonsecure custody 

and failures to report at the end of an authorized period of 

freedom”); United States v. Keller, 912 F.2d 1058, 1059–60 

(9th Cir. 1990) (holding that the defendant’s failure to report 

to a place of confinement at an appointed date and time 

qualified as an escape from federal custody). 

 Small argues that the Gowdy court’s definition of 

custody was too broad and that we should not follow it. We 

are unpersuaded. As the court there pointed out, the purpose 

of § 751(a) is “to protect the public from the danger 

associated with federal criminals remaining at large.” 

Gowdy, 628 F.3d at 1268. An interpretation of the term 

“custody” that includes individuals subject to federal 

judgments of conviction advances that purpose, as those who 

are convicted but never physically transferred to federal 

custody are “federal criminals remaining at large.” 

 Small attempts to distinguish the cases upon which the 

Gowdy court relied by noting that in many of those cases the 

defendants had been, at some point, in “direct physical 

custody.” Small Br. 23. However, Small fails to explain why 
8 

this distinction makes a difference or to what extent it should 

inform our analysis of a different part of the statute, which 

does not require direct physical custody at any point by the 

Attorney General or her agents. Indeed, Small’s proposed 

interpretation of the statute would essentially read out the 

section criminalizing escape from “custody . . . by virtue of 

any process issued under the laws of the United States by any 

court, judge, or magistrate judge.” 18 U.S.C. § 751(a). That 

clause of the statute has no “direct” custody requirement. 

And, as the Court of Appeals for the Tenth Circuit recently 

reaffirmed, “escape charges are not limited to defendants who 

were previously in the custody of the Attorney General.” 

United States v. Foster, 754 F.3d 1186, 1190 (10th Cir. 2014). 

Constructive custody under that provision of the statute is 

established simply by virtue of the process issued by the 

judge, in this case the judgment of conviction entered by the 

District Court. 

 

 In sum, we hold that the custodial requirement is 

satisfied if a lawful judgment of conviction has been issued 

by a federal court against the defendant. As Small does not 

dispute that he was lawfully convicted and sentenced in 2007 

for filing false tax returns, that conviction is sufficient 

“process” under the statute to have placed him in the 

constructive custody of the federal government on completion 

of his state sentence such that his actions to avoid serving his 

federal sentence constitute the crime of escape. 

2. 

 Small also argues that the language of the indictment is 

contradictory and fails to support the Government’s 

contention that Small was in federal custody. Count I of the 

indictment states that “Huntingdon State Prison officials 

released the defendant . . . upon the expiration of his state 

sentence rather than relinquishing him to the custody of the 

Attorney General of the United States to serve his federal 

sentence.” Appendix (“App.”) 36. Count III states that Small 

was held in Huntingdon “by virtue of a judgment and 

commitment of the United States District Court . . . and a U.S. 

Marshal’s detainer lodged in conjunction with the judgment 

and conviction.” App. 38. Small’s contention is that Count I 

on its face concedes that he was never in federal custody, as it 
9 

indicates that the state prison released him “rather than” 

relinquishing him to the custody of the Attorney General. 

 Small’s argument fails. While it is correct that the first 

count of the indictment indicates that there was a failure to 

relinquish Small to the custody of the Attorney General, it is 

plausible from the context that this portion of the indictment 

refers to physical custody, which, as explained above, is only 

one possible basis for custody under the statute. Count I 

makes no claim, one way or the other, about the constructive 

basis of Small’s custody pursuant to the federal court’s 

judgment of conviction. And though the statute includes 

“escape from the custody of the Attorney General or his 

authorized representative,” the true basis of the charge against 

Small was an escape “from any custody under or by virtue of 

any process issued under the laws of the United States by any 

court, judge, or magistrate.” 18 U.S.C. §751(a). Count III 

makes this clear by specifically mentioning that Small was 

subject to a “judgment and commitment of the United States 

District Court.” App. 38. Absent Small’s artifice, the state 

prison would have continued to hold him, pursuant to the 

District Court’s order, until he was transferred to the physical 

custody of federal agents. Thus, while the wording of Count I 

may not have been ideal, it does not foreclose Small’s 

conviction for escape under Count III of the indictment. 

IV. 

For the foregoing reasons, we will affirm the District 

Court’s judgment of conviction.