IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-1584

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DILLARD JACKIE SMITHERS,

a/k/a "Jackie", Jr.,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

(July 18, 1994)

Before GOLDBERG, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

We reverse Dillard Jack Smithers' convictions for assisting

and conspiring in his brother's escape and remand for a new trial.

We grapple wit h the concept that at some point an escape is

complete and assisting the fleeing felon may constitute the crime

of harboring a fugitive but not assisting the escape.

I.

Jimmy Smithers escaped from the Federal Correctional

Institution in Seagoville, Texas. Despite the reality that for

federal prisoners escape often may be little more than turning off

the television and walking away, the crime remains that of escape.

In April 1992, Jimmy Smithers' wife, Libby, began liquidating her2

property and left her Texas home. While away, she executed a power

of attorney authorizing Dillard Jack Smithers, Jimmy's brother, to

sell what remained. Jack sold almost everything in Libby's house

and sent her money from the sales.

On August 24, 1992, Jack and Libby visited Jimmy at

Seagoville. The next morning, Libby and her daughter went to the

house of Cathy Curry, Jack's longtime girlfriend, to pick up a

flatbed truck belonging to Jimmy. Jack was there, although he

usually worked at that ti me, and backed the truck out for Libby.

That evening, Jack and Curry went to the hous e where Libby was

staying, where Jack helped load Libby's suitcase and some tools

into his van. Libby told her daughter that she was going on a

canoe trip and then left in Jack's van.

On August 26 Jimmy walked away from a work de tail and drove

away in a truck containing clothes and money. He soon left that

truck and then, either in the flatbed truck or another vehicle,

picked up Libby and drove north. In Oklahoma, they stopped to buy

a travel trailer for $3,000 cash, and were seen driving his flatbed

truck.

On December 15, 1992, U.S. Marshals executed a search warrant

on Curry's house and recovered a receipt for an express mail

package sent to "Libby Shull" in Bonners Ferry, Idaho, a small town

near the Canadian border. During questioning, Curry said that Jack

told her she should not send anything else because th at was "the

quickest way for them to get caught." The marshals also searched1 18 U.S.C. § 371.

2 18 U.S.C. § 751.

3 18 U.S.C. § 752(a).

4 18 U.S.C. § 1072.

3 Jack's home and found a sketch allegedly showing positions for

Jimmy's getaway vehicles.

U.S. Marshals capture d Jimmy and Libby in Bonners Ferry on

December 15, 1992. In their trailer, marshals found money bands

that had held cash. They also found a calendar and expense book

indicating that Jack had sent the couple $200 after the escape.

Jack Smithers was charged in two counts of a four count

indictment that also named Jimmy, Libby, and Curry. Count 1

charged Jack with conspiring 1 to commit the crimes of escape, 2

assisting an escape, 3 and harboring or concea ling a fugitive. 4

Count 3 charged him with the substantive offense of assisting an

escape. Jimmy and Libby pled guilty to the offenses for which they

were charged, while Jack and Curry went to trial.

At trial, Jack conceded that he had sent Jimmy and Libby money

after the escape, and that he had known their location but had not

disclosed it to law enforcement officers. The court instructed the

jurors that these acts, standing alone, could not constit ute the

crime of harboring and concealing. The jury found Jack Smithers

and Cathy Curry guilty on Counts 1 and 3. Jack received an 18

month prison sentence. This appeal followed.

II.5 The requested instruction said: "The crime of aiding an

escape terminates once the escapee has reached te mporary safety.

When physical control over the escape has ended by flight beyond

immediate active pursuit, the escape is complete. After that point

in time, aid to the fug itive is no longer aiding the escape,

although it may be evidence of harboring and concealing."

6 869 F.2d 1264 (9th Cir. 1989).

7 100 S. Ct. 624 (1980).

8 Id. at 636.

9 The statute provided:

Whoever shall rescue or attempt to rescue, from the

custody of any officer or person lawfully assisting him,

any person arrested upon a warrant or other process

issued under the provisions of any law of the United

states, or shall, directly or indirectly, aid, abet, or

assist any person so arrested to escape from the custody

of such officer or ot her person, or shall harbor or

conceal any person for whose arrest a warrant or process

has been so issued, so as to prevent his discovery and

arrest, after notice or knowledge of the fact that a

4 Smithers argues that the trial court erred by not instructing

that the crime of aiding an escape ends once immediate active

pursuit of the escapee ends

, 5 citing the Ninth Circuit case of

United States v. Vowiell

. 6 He contends that the jury could have

based his conviction on events after his brother eluded pursuit in

Texas. The government counters that V owiell conflicts with United

States v. Bailey

, 7 in which the Supreme Court held that the cri m e

of escape is a continuing crime. 8 Because escape is a continuing

crime, argues the government, any aid to a known fugitive is

criminal as well.

Smithers has the stronger position. The predecessor of the

curre nt statute defined both the offense of assisting escape and

the offense of harboring and concealing a fugitive. 9 Caseswarrant or process has been issued for the apprehension

of such person, shall be fined not more than $1,000, or

imprisoned not more than six months, or both.

18 U.S.C. § 246 (1940 ed.).

10 United States v. Shapiro

, 113 F.2d 891, 893 (2d Cir. 1940).

1 1 United States v. Orth

, 252 F. 566, 568 (4th Cir. 1918). S ee

also Shapiro

, 113 F.2d at 893. S ee generally Wayne R. LaFave &

Austin W. Scott, Jr., Criminal Law § 6.9(a) (2d ed. 1986)

(discussing the development of the offense of "accessory after the

fact").

1 2 The Reviser's Notes f or both section 752 and 1072 indicate

that the new statutes "consolidate" provisions formerly codified in

several places.

1 3 The relevant provision reads: "Whoever rescues or attempts

to rescue or instigates, aids or assists the escape, or attempt to

escape, of any person

. . . committed to the custody of the

Attorney General or to any institution or facil ity by his

direction, shall, if the custody or confinement is by virtue of .

. . conviction of any offense, be fined not more than $5,000 or imprisoned not more than five years, or both . . . ."

1 4 "Whoever willfully harbors or conceals any prisoner after his

escape from the custody of the Attorney General or from a Federal

penal or correctional institution, shall be im prisoned not more

than three years."

5 interpreting that statute distinguished the levels of culpability

required by its different clauses, notin g that the statute made

"any degree of assistance

. . . criminal in the matter of aiding an

escape, but when dealing with preventing detection of a fugitive,

Congress used more limited language

. . . ." 10 The move from

assisting to harboring and concealing occurred when the escapee

eluded immediate pursuit. 11

Subsequent amendments 12 split that statute into two parts. The

language about assisting escape moved to 18 U.S.C. § 752, 13 and the

language about harboring and concealing moved to 18 U.S.C. § 1072. 141 5 See, e.g.

, United States v. Stacey

, 896 F.2d 75, 77 (5th Cir.

1990) (citing United States v. Magness

, 456 F.2d 976, 978 (9th Cir.

1972); United States v. Fox , 416 F.2d 940, 941 (7th Cir. 1969)).

16 100 S.Ct. at 636.

1 7 See State v. Martinez

, 781 P.2d 306 (N.M. Ct. App. 1 989)

(distinguishing New Mexico harboring and concealing statute f rom the federal one because of this language in the federal statute).

6 Courts continued to recognize that acts such as failing to disclose

a fugitive's location and giving small amounts of financial

assistance to a fugitive do not constitute the crime of harboring

and concealing. 15 Further, the new harboring and concealing statute

requires that the act of harboring or concealing a fugitive occur

"after his escape " from custody, underscoring the statement in

earlier cases that harboring begins once immediate purs uit has

ended.

United States v. Bailey does not undermine that distinction.

Bailey and the cases it cites hold that a fug itive asserting a

defense of duress or necessity cannot remain away once the events

forcing his absence from custody end. For example, when a prisoner

scales the wall because others forced him to do so, the offense of

escape is committed when the duress has ended and the prisoner

fails to return, even though it was not committed when the prisoner

went over the wall. 16 In this practical sense the offense is said

to be continuing. That construction of section 751, in the context

of analyzing the defenses of duress and necessity, does not define

the term "escape" in sections 752 and 1072. Applying it to those

statutes would read section 1072 out of existence, because it would

then be impossible to harbor a fugitive "after his escape." 171 8 See Bailey

, 100 S. Ct . at 635-36 (noting that an

indispensable element" of a duress or necessity defense is proof of

"a bona fide effort to return to custody as soon as the claimed

duress or necessity has lost its coercive force").

1 9 United States v. Rubio

, 834 F.2d 442, 448-49 (5th Cir. 1987);

United States v. Grissom

, 645 F.2d 461, 464-65 (5th Cir. Unit A May

1981).

7 The government points to the difficulty of determining when

immediate active pursuit has ended. But this determination is no

more difficult than the fact-intensive inquiry Bailey requires as

to when a defense of necessity or duress ceases to be good. 18 This

criticism is better directed to Congress.

III.

Because we find that the requeste d instruction was

substantively correct, we next ask whether the charge given to the

jury substantially covered the requested instruction, and whether

failure to give the requested ins truction seriously impaired

Smithers' ability to present a given defense. 19 Smithers contends

that omitting the instruction kept him from defending himself by

offering innocent explanations for his activity before the escape.

The government does not dispute that Smithers would have been

prejudiced if he was unable to argue this defense. Rather, the

government contends that the charge substantially covered Smithers'

requested instruction because it did not expressly allow the jury

to convict for assisting escape on acts taken after immediate

pursuit ended. This argument fails because part of the definition

of the crime of assisting escape is that it cannot oc cur after23 The charge is reproduced in footnote 2 of the dissent.

24 Rubio , 834 F.2d at 449.

2 5 See United States v. Stowell , 953 F.2d 188, 189 (5th Cir.

1992); United States v. Burroughs

, 876 F.2d 366, 369 (5th Cir.

1989).

8 immediate pur suit ends. An instruction need not affirmatively

misstate an offense to be erroneous.

The dissent suggests that the charge obviated the need for

Smithers' instruction because it required the jury to find that he

"aided in the escape of Jimmy Arnold Smithers," and specified that

his assistance took place "in or about August 1992 and continuing

through at least on or about August 26, 1992." 23 The words "in or

about" and "at least on or about" imply that the assistance could

have taken place at any time, and do not preclude the jury from

finding that aid to the escape occurred after the escape took

place. Further, having the court specify the dates when assistance

could occur invades the province of the jury by taking from it the

fact-intensive question of when an escape ends.

In a similar vein, the government contends th at the closing

arguments about the charge advanced Smithers' interpretation of the

law. Closing argument is part of the totality of circumstances

considered in deciding if an omitted instruction has substantially

impaired a defendant's ability to advance a particular defense. 24

The arguments in this case, however, do not compensate for the lack

of instruction. 25 The prosecution never addressed the issue except

to make a cryptic reference to "assistance pre-escape," which did

not foreclose the jury from finding that assistance also took place26 United States v. Saks

, 964 F.2d 1514, 1521 (5th Cir. 1992).

2 7 See Burroughs

, 8 76 F.2d at 370. S ee also United States v.

Marcello , 876 F.2d 1147, 1153 (5th Cir. 1989).

2 8 Se e Griffin v. United States , 112 S. Ct. 466, 474 (1991)

(noting t hat "legal error" includes the situation where "a

particular theory of conviction

. . . fails to come within the

statutory definition of the crime").

9 post-escape. Smithers' lawyer briefly summarized his theory and

then, acknowledging that it was "rather technical," told the jury

that it might "have to read the charge again and study it some

more." The charge, of course, made no reference to his theory.

Curry's lawyer explained the same theory by urging that "everything

but harboring and concealing was over after August 26 according to

the government's indictment" when the indictment did not draw such

a conclusion. We view this somewhat confused argument as being

caused by, rather than filling, a gap in the charge.

The government also contends that an erroneous instruction on

an element of an offense can be harmless beyond a reasonable doubt,

if, given the factual circumstances of the case, the jury could not

have found the defendant guilty without making the proper factual

finding as to that element. 2 6 That rule does not apply to the

verdict form used in this case, because we cannot tell from the

jury's answers how it evaluated t he evidence about Smithers'

actions before the escape. 27

The flaw with this conviction also undermines the conspiracy

conviction. The general verdict form allowed conviction for

conspiracy to commit any one of several offenses. The jury did not

have proper guidance as to one. 28 We thus reverse the conspiracy29 Yates v. United States , 354 U.S. 298, 312 (1957).

10 conviction because it rested on legally insufficient grounds. 29

REVERSED AND REMANDED FOR A NEW TRIAL.30 Smithers requested the following jury instruction:

The crime of aiding an escape terminates o nce the escapee has

reached temporary safety

. When physical control over the escapee

has ended by flight beyond immediate active pursuit , the escape is

complete . After that point in time, aid to the fugitive is no

longer aiding the escape, although it may be evidence of harboring

and concealing.

31 The trial court submitted in pertinent part the following jury

instructions:

To assist you in determining whether there was a conspiracy to (1)

effect the escape of Jimmy A rnold Smithers from the Federal

Correctional Institution at Seagoville, Texas; (2) instigate, aid,

and assist , and attempt to instigate, aid, and assist, and attempt

to instigate, aid and assist, the escape of Jimmy Arnold Smithers;

and (3) willfully harbor and conceal prisoner Jimmy Arnold Smithers

af ter his escape from the custody of a federal correctional

institution, I will now explain to you the elements of these object

o ffenses.

. . . The second object of the conspiracy charged in

count 1 is instigating, aiding, and assisting escape, or attempting

to do so. The elements of this crime are set out in instructions in

count 3 below.

. . . The third object of the conspiracy charged in

count 1 is willfully harboring and concealing. The elements of this

crime are:

First : That one or more persons harbored and concealed Jimmy

Arnold Smither s a fter his escape from the custody of the

Federa l Correctional Institution at Seagoville, Texas, as

charged in the indictment; and

Second : That Jimmy Arnold Smithers was in federal custody and

dep a rted from the Federal Correctional Institution at

Seagoville, Texas without permission.

The term "harbor" commonly means to give refuge to, shelter, lodge,

care for, or protect. The term "conceal" commonly means to hide;

secrete; or keep out of sight , discovery, or knowledge. The term

"custody" means the detention of an individual by virtue of lawful

process or authority.

Under these def initions, to "harbor" or "conceal" requires some

affirmative act of providing aid to a prisoner to avoid detection or apprehension. T hus, failure to disclose a prisoner's location or

11 EMILIO M. GARZA, Circuit Judge, dissenting:

The issue before us is whether the district court abused its

discretion in failing to submit Smithers' proposed instruc tion. 3 0

Both the proposed instruction and the instruction which was given 31giving financial assistance to an escaped prisoner could not,

standing alone, constitute harboring or concealing.

The Charge in Count 3 of the

Indictment

(Instigating, Aiding and

Assisting Escape)

Count 3 of the indictment charges that in or about August 1992 and

continuing through at least on or about August 26, 1992, in the

Dallas Division of the Northern District of Texas and elsewhere,

defendants Lizbeth Shull Smithers and D i llard Jack Smithers, Jr.,

aided and abetted by each other and by others, knowingly and

willfully aided and assisted in the escape of Jimmy Arnold Smithers

from Seagoville Federal Correctional Institution, Seagoville, Texas,

after he had been committed to the custody of that institution by

direction of the Attorney General, in violation of Title 18, United

States Code, Sections 752(a) and 2.

Title 18, United States Code, Section 752(a) provides in pertinent

part:

Whoever

. . . instigates, aids or assists the escape

. . . of

any pe rson . . . committed to the custody of the Attorney

General or to any institution or fa cility by his direction,

shall, if the custody or confinement is by virtue of

. . . [a]

c onviction of any offense, be [guilty of an offense against

the United States].

Thus, § 752(a) makes it a crime for any person to instigate, aid or

assist in the escape of any person who is in federal custody. For

you to find defendant Dillard Jack Smithers, Jr. guilty of the crime

of aiding a nd assisting an escape, you must be convinced that the

government has proven each of the following four elements beyond a

reasonable doubt:

Fir st : that defendant Jimmy Arnold Smithers was in federal

custody;

Second : that defendant Jimmy Arnold Smithers was in such

custody at an institution or facility where he was confined by

the direction of the Attorney General for conviction of an

offense;

Third : that defendant Dillard Jack Smithers, Jr. instigated,

aided or assisted in the escape of Jimmy Arnold Smithers; and

Fourth : that defendant Jimmy Arnold Smithers knew he did not

have permission to leave federal custody.

The term "custody" means the detention of an individual by virtue of

lawful process or authority.

Also, in your consideration of count 3, the defendant Dillard Jack

Smithers, Jr. may be foun d guilty if you find beyond a reasonable

doubt that he committed the offense himself or caused its commission

through or with ot hers (see instructions on aiding and abetting

below) (emphasis added).

12 state that at some point an escape ends. 3 Thus, the issue is not3 The district court instructed the jury that in order to convict Jack

Smithers of Count 1 (third object of the conspiracy, harboring and concealing)

it had to find "[t]hat one or more persons harbored and concealed Jimmy Smithers

after the escape

. . . ." S ee supra note 2; see also 18 U.S.C. § 1072 ("Whoever

willfully harbors or conceals any prisoner after his escape from the custody of

the Attorne y General or from a Federal penal or correctional institution,

. . . .") (emphasis added). In contrast, the district court instructed the jury

that in order to convict Jack Smithers of Counts 1 (second object of the

conspiracy, assisting an escape) and 3 (assisting an escape), it had to find,

be y ond a reasonable doubt, he "instigated, aided or assisted in the escape of

Jimmy Arnold Smithers." See supra note 2 (emphasis added).

4 I agree with the majority, that from the prospective of one who

assists or harbors an escapee, that " United States v. Bailey does not undermine"

the distinction that harboring occurs "after the escape." S ee slip op. at 6;

United States v. Bailey , 444 U.S. 394, 413 (1980) ("[W]e think it clear beyond

peradventure that escape from federal custody as de fined 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."); slip op. at 6 ("In this

practical sense the offense [under 18 U.S.C. § 751(a) (escape)] is said to be

continuing.").

5 I question whether instructing a jury that "an escape terminates once

the escapee has reached temporary safety" is factually equivalent to instructing

it that the escape is complete "when physical control over the escapee has ended

by flight beyond immediate active pursuit." But see infra note 6. The former

focuses on the escapee (reaching temporary safety); while the latter, on the

pursuer (immediate a ctive pursuit). The purposed instruction is confusing at

best.

6 See Un ited States v. Vowiell

, 869 F.2d 1264, 1268 (9th Cir. 1989)

("The crime of aiding an escape terminates once the escapee has reached temporary

safety: `When the physical control has ended by flight beyond immediate active

pursuit the escape i s complete. After that aid to the fugitive is no longer

aiding his escape.'") ( quoting Orth v. United States

, 252 F. 566, 568 (4th Cir.

1918) (citations omitted)). B ut see supra note 5 (Is reaching "temporary safety"

factually equivalent to the completion of "immediate active pursuit"?).

13 the continuity of the escape, 4 but the more troublesome question )) at

what point does an escape end. The majority opinion concludes that

the tension between 18 U.S.C. § 752(a) (assisting an escape) and 18

U.S.C. § 1072 (harboring or concealing a fugitive) requires an

additiona l instruction to the jury ) ) that an escape ends when the

escapee reaches "temporary s afety" t hat is

, 5 at the completion of

"immediate active pursuit." 6 I disagree.

"Smithers argues that the trial court erred by not instructing

that the crime of aiding an escape ends once immediate active7 See Record on Appeal vol. 6, at 38-39, 120-21.

8 Thus, Smithers concedes, to the extent there is any evidence of

harboring and concealing an escapee, the trial co urt's instruction to the

jury )) that "failur e to disclose a prisoner's location or giving financial

assistance to an escaped prisoner could not, standing alone, constitute harboring

or concealing" )) correctly limited the jury's consideration on that object of the

conspiracy. See supra note 2.

9 Furthermore, since the first object of the co nspiracy )) escape ) ) was

directed at the acts of Jimmy Smithers, see Record on Appeal Vol. 2, at 379-80,

the on ly object of the conspiracy on which Jack Smithers could have been

convicted, given his concession on harboring and concealing, is the second

object )) assisting Jimmy's escape.

14 pursuit of the escapee ends,

. . . ." Slip op. at 3-4. Thus,

"[h]e contends that the jury could have based his conviction on

e vents [which occurred in late October and November 1992] 7 after

his brother eluded pursuit in Texas." I d. at 4. In his brief,

Smithers states:

During closing argument, Dillard Jack Smithers' counsel

conceded that his client sent Jimmy a nd Libby Smithers

money, and failed to disclose their location to law

enforcement. The trial court instructed the jurors that

these acts, standing alone, could not constitute

harboring and concealing an escapee. However, in order

that the jury not erroneously conclude that these acts

constitute aiding the escape

, Dillard Jack Smithers

requested that the trial court instruct the jurors that

the crime of aiding an escape terminates once the escapee has reached a point of temporary safety. 8

Appellant's Brief at 8 (citations omitted). Accordingly, the

operative instruction which we must examine is not the instruction

on the third object of the conspiracy )) harb oring and concealing

"after his escape" )) but rather, the second object )) assisting "in the

escape." 9 See supra note 2.

Importa nt to this analysis is that the district court

correctly instructed the jury on the charges contained in Counts 1

(second object of the conspiracy) and 3 of the indictment and10 The district court further instructed the jury:

You will note that the indictment charges that the offenses were

committed `on or about' certain dates. The proof need not establish

with certainty the exact date of an alleged offense. It is

sufficient if the evidence in the case establi shes beyond a

reasonable doubt that an offense was committed on a date reasonably

near the date alleged.

See id. at 371.

11 I disagree with the majority's view that events occurring in late

October and November 1992 are reasonably near "at least on or about August 26,

1992". See also infra note 12 and accompanying text.

12 See Record on Appeal vol. 8, at 49 (Smithers' attorney stated in

closin g argument: "Assisting the escape means assisting the escape from the

institution. Don't confuse that with harboring and concealing. The bottom line

I submit is that you should only convict Smithers if you believe that he knew

about it in advance, the escape in advance or assisted it in advance or according

to an instruction you will find in the conspiracy charg e if he joined a

conspiracy with full knowl edge of its scope and all of that was done in

furtherance of the conspiracy."); id. at 62-63 (Curry's attorney stated : "And

everything but harboring and concealing was over after August 26 according to the

government's indictment. The escape was on the 26th. All over after the 26th

except the harboring and concealing."); id. at 71 (The prosecutor argued: "Been

a lot of language about Jimmy Smithers leaving t h e federal penitentiary at

Seagoville. He escaped. He escaped with the assistance of these two defendants.

And the assistance pre-escape, here is some of the items.

. . . The liquidation,

the loading of the blue van, the visitation, the chicken scratch map, the blue

van again because it mysteriously appears back at Papa Bear's, the telephone

calls, look at those telephone bills , at the patterns that they present to

you.").

15 limited the jury's considerations to events occurring "in or about

August 1992 and continuing through at least on or about 10 August 26,

1992", the date of Jimmy's escape. 11 S ee id. M oreover, all of the

parties understood the court's instruction to limit the evidence to

events on or before August 26 and argued that understanding to the

jury. 12

Secondly, the t rial court instructed the jury that it must

find, beyond a reasonable doubt, "that defendant Dillard Jack

Smithers, Jr. instigated, aided or assisted in the escape of Jimmy

Arnold S mithers." S ee id. Thus, to the extent that Smithers

contends "[t]he jury may nevertheless have concluded that there was13 To the extent, however, that Smithers argues that evidence that he

"sent Jimmy

. . . money, and failed to disclose [his] location" is irrelevant to

the conspiracy or substantive co unt of assisting the escape, he is mistaken:

This evidence is, at least, relevant to prove "motive, . . . intent, plan,

knowledge,

. . . , or absence of mistake or accident." S ee Fed. R. Evid. 404(b).

14 Orth cites "2 Wharton, Cr. L. 260 6; 1 Russell on Crimes, 467; 10

R.C.L. 579; Smith v. State

, 8 Ga. App. 297, 68 S.E. 1071; State v. Ritchie

, 107

N.C. 857, 12 S.E. 251," Orth

, 252 F. at 568, while Vowiell cites, " Orth v. United

States

, 252 F. 566, 568 (4th Cir. 1918); see Wharton's Criminal Law and Procedure

§ 1370 (1957) (assistance after completion of escape makes one guilty as an

accessory after the fact and not as a party to the off ense of escape); 4

Wharton's Cr iminal Law §§ 664-665 (1981) (emphasizing departure, rather than

absence, from legal custody as hallmark of escape and prison breach); see also

United States v. Ran dolph , 261 F.2d 234, 237 (7th Cir. 1958) (distinguishing

aiding an escape from post-escape concealment under Illinois law)." V owiell

, 869

F.2d at 1268. None of the cited authority supports the conclusion that Congress

intended to define "after the escape" in this manner.

16 sufficient evidence that he conspired to aid the esca pe by

improperly considering eviden ce of assistance rendered after the

escapee reached a point of temporary safety," Appellant's Brief at

14, the trial court correctly limited the jury's consideration to

those events surrounding Jimmy's escape on or about August 26. 13

Moreover, Smithers concedes "[arguing] in his closing

statement that the jury should only find that he aided the escape

if he rendered assistance to the escapee prior to the escape,"

although he maintains that "without the requested instruction the

jury was free to disr egard [this argument]." Appellant's Reply

Brief at 4 (citation omitted). Given the instruction which the

trial court gave on assisting the escape, the jury was not free "to

disregard" Smithers' argument.

I also disagree that Smithers' proposed instruction, see supra

note 1, is a correct statement of the law. This added definition

has no statutory or legislative history support and ve ry little

common law support. 14 Had Congress desired to define that exact15 See United States v. Chaney , 964 F.2d 437, 447 (5th Cir. 1992)

(stating that in deciding whether the district court abused its discretion by not

giving a requested instruction, we m ust determine whether the requested

instruction: (1) is a correct statement of the law; (2) was substantially given

in the charge as a whole; and (3) concerns an important point in the trial, the

omission of which seriously impaired the defendant's ability to present a given

defense effectively).

17 point when an escape en ds, it clearly knew how to do so: The

majority demands more pre cision than the applicable statute

r equires. Furthermore, the language of the proposed instruction

is, at best, confusing. S ee supr a note 5. Accordingly, the

district court did not abuse its discretion by not submit ting

Smithers' proposed instruction. 15

Respectfully, I dissent.