UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4561

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

FRANK BALLARD SMITH,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Abingdon. James P. Jones, Chief District

Judge. (1:05-cr-00062-jpj)

Submitted: May 4, 2007 Decided: June 4, 2007

Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Michael A. Bragg, BRAGG LAW, PLC, Abingdon, Virginia, for

Appellant. Dennis H. Lee, Special Assistant United States

Attorney, Abingdon, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Frank Ballard Smith appeals his conviction after a jury

trial of one count of attempted escape in violation of 18 U.S.C.

§ 751(a) (2000), and his resulting thirty-seven month sentence.

Smith claims his due process rights were violated when the district

court prevented him from arguing to the jury that the Government

failed to prove he was in federal custody under § 751(a).

According to Smith, the district court’s refusal to allow him to

argue this point to the jury was essentially a directed verdict as

to that element of the offense. Smith also argues the district

court erred in denying his motions for judgment of acquittal

because he was never in federal “custody” as that term is defined

under § 751(a). We affirm Smith’s conviction and sentence.

While Smith was serving a state prison sentence, the

United States District Court for the Western District of Virginia

issued a writ of habeas corpus ad prosequendum for Smith. The writ

was executed, and the Government took possession of Smith pursuant

to a magistrate judge’s order of detention. While awaiting

disposition of the federal charges against him, Smith attempted to

escape from the facility in which he was housed. 

At the close of the Government’s evidence, Smith moved

for a judgment of acquittal arguing that, under United States v.

Evans, 159 F.3d 908 (4th Cir. 1998), he remained in state custody

at the time of his escape attempt and therefore was not in federal
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“custody” as that term is defined by § 751(a). The district court

denied the motion and ordered that Smith could not argue to the

jury “any factual question, at least based on the evidence

presented to me so far,” regarding whether he was in federal

“custody” at the time of his escape attempt. 

After his conviction, Smith filed another motion for

judgment of acquittal or, in the alternative, for a new trial,

again arguing he was not in federal “custody” at the time of his

escape attempt. The district court denied the motion, and Smith

timely appealed. 

“The district court is afforded broad discretion in

controlling closing arguments and is only to be reversed when there

is a clear abuse of its discretion. ‘A reversal may be required

where counsel is restricted within unreasonable bounds.’” See

United States v. Wills, 346 F.3d 476, 491-92 (4th Cir. 2003)

(citing United States v. Rhynes, 196 F.3d 207, 236 (4th Cir.

1999)). We conclude the district court did not err when it

prevented Smith from arguing to the jury that he was in state and

not federal custody as required by § 751(a).

To establish federal custody under § 751(a), the

Government was required to prove Smith was: “(1) in the custody of

the Attorney General or her authorized representative; (2) confined

in an institution by direction of the Attorney General; (3) in

custody under or by virtue of any process issued under the laws of
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the United States by any court, judge, or magistrate; or (4) in the

custody of an officer or employee of the United States pursuant to

a lawful arrest.” Evans, 159 F.3d at 910.

At trial, the Government introduced evidence that Smith

was directed by a magistrate judge to be “committed to the custody

of the Attorney General or his designated representative for

confinement” at the time of his escape attempt. Although Smith

insinuates on appeal he was entirely forbidden from arguing the

custody issue to the jury, the record reveals Smith was prevented

from arguing facts regarding when federal custody begins pursuant

to a writ of habeas corpus ad prosequendum.

Because it is evident Smith wished to argue to the jury

that the Government’s legal definition of “custody” was incorrect

and that this legal argument would only have confused the jury, we

conclude the district court did not abuse its discretion in

limiting Smith in his closing argument. 

Smith also claims the district court erred in denying his

motions for judgment of acquittal because, under Evans, he was

merely “loaned” to the federal system by Virginia and therefore

remained in state custody. We review the denial of a Rule 29

motion de novo. See United States v. Alerre, 430 F.3d 681, 693

(4th Cir. 2005), cert. denied, 126 S. Ct. 1925 (2006). We conclude

the district court correctly denied Smith’s motions for judgment of

acquittal.
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In Evans, a federal prisoner was loaned to the custody of

the state pursuant to a writ of habeas corpus ad prosequendum.

Evans, 159 F.3d at 909. Evans escaped while in state custody and

a jury subsequently convicted him of a violation of § 751(a). Id.

at 910. In affirming Evans’ conviction, this court rejected Evans’

argument that the writ of habeas corpus ad prosequendum effectuated

a change in custody and that the federal government, having

transferred him to state custody, relinquished its custody over

him. Id. at 910-13. Rather, this court held that the sending

jurisdiction does not relinquish its custodial authority over a

prisoner for purposes of escape jurisdiction when a writ of habeas

corpus ad prosequendum is effectuated. Id. at 912.

Although Evans decided that federal authorities do not

relinquish custody by loaning out a prisoner on a writ of habeas

corpus ad prosequendum, it did not hold that where, as here, a

state loans a prisoner to federal authorities on the authority of

such a writ, the federal government does not obtain custody of the

prisoner. Rather, under the plain meaning of the word “custody,”

when a state prisoner is physically held by federal authorities

awaiting prosecution of a federal offense, it belies logic to claim

the federal authorities do not have “custody” of the prisoner.

Accordingly, we conclude the district court did not err when it

denied Smith’s motions for judgment of acquittal. 
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Based on the foregoing, we affirm Smith’s conviction and

sentence. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

AFFIRMED