* Of the United States Court of Appeals for the Sixth Circuit,

sitting by designation. 

# United Stat es Court of Appeals

For the First C ircuit

No. 02-2362 UNITED STATES, Appellee,

v. MIGUEL ROSA-ORTIZ, Defendant, Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO [Hon. Daniel R. Dominguez, U.S. District Judge ]

Before Lynch, Circuit Judge , Siler, Circuit Judge , * and Lipez, Circuit Judge . Rafael F. Castro Lang for appellant. Nelson Perez-Sosa , Assistant United States Attorney, with whom H.S. Garcia , United States Attorney, and Sonia I. Torres-Pabon , Assistant United States Attorney, were on brief, for appellee.

October 28, 20031 For this reason, we also vaca te today Amparo-Concepción's

conspira cy c onviction following his guilty plea in the companion case to this appeal, United States v. Amparo-Concep ción , No. 02- 1935. -2-

LYNCH, Circuit Judge . Miguel Rosa-Ortiz pleaded guilty in federal court to conspiracy to violate the Federal Escape Act, 18 U.S.C. § 751(a), which criminalizes escape and attempted escape bypersons who are in federal custody under specified conditions -- including, as the statute pertains to this case, persons in custody "byvirtue of an arrest on a charge of felony, or conviction of any offense." But no court of appeals may uphold a plea of guilty to conduct that is not within the crime charged. On appeal, RosaOrtiz says that § 751(a) does not prohibit the conduct alleged in the indictment. We agree.

The conspiracy charge was based on e vidence that RosaOrtiz helped his co-defendant, Maximiliano Amparo-Concepción, attempt to escape from federal prison in Puerto Rico. Yet not all escapes from federal custody violate § 751(a). We conclude that Amparo-Concepción wa s not in federal custody "by virtue of an arrest on a charge of felony, or conviction of any offense" (whether state or federal), but instead solely by virtue of his detention on a federal material witness warrant. Cf. 18 U.S.C. § 3144. By its own terms, the Federal Escape Act does not proscribe escapes under such circumstances, 1 which means that Rosa-2 This does not mean that Rosa-Ortiz's conduct did not violate

some other federal statute. We hold only that the indictment did not validly allege a conspiracy to violate § 751(a).

3 The indictment also charged Rosa-Ortiz and three codefendants with aiding and abetting escape under 18 U.S.C. §§ 752(a) and 2, but that count was later dismissed against Rosa-Ortiz pursuant to his plea agreement. -3- Orti z c annot be guilty of conspiring to violate that Act. 2 Accordingly, we vacate the judgment of conviction and remand with instructions to dismiss the indictment. I. On February 7, 2001, a federal gr and jury returned an indictment against Rosa-Ortiz and four co-conspirators, including Amparo-Concepción, for conspiracyto violate § 751(a). 3 According to the government's summary of the facts, which was attachedto the plea agreement and acknowledged by Rosa-Ortiz in writing, the defendants plotted to free Amparo-Concepción fro m the federal Metropolitan Detention Center (M DC) in Puerto Rico. The escape plan i nvolved smuggling a bar-cutting tool into the MDC, meeting Amparo-Concepción o utside the prison with a getaway car and a change of clothes, and then fleeing to the Dominican Republic. Rosa-Ortiz's role was to obtain the getaway car, recruit others to help, handle funds sent from the Dominican Republic to finance the escape, and coordinate an advance trip to the perimeter of the MDC

so t hat Amparo-Concepción could identify the chosen getaway car. Rosa-Ortiz did in fact act on most of these plans, including4 The record does not reveal whyfederal authorities preferred

to have Amparo-Concepción in federal custody, rather than allow him to remain incarcerated in the Puerto Rico system unti l hi s testimony became necessary. -4- driving the getaway car to the perimeter of the MDC on February 3, 2001. The FBI foiled the plot.

At the time of the escape attempt, Amparo-Concepción was being held at the MDC pursuant to a material witness warrant issued on December 7, 2000 by the federal district court in Puerto Rico. Cf. § 3144 (authorizing, in limited circumstances, the detention of

a wi tness whose testimony is material to a criminal proceeding). Until that time, Amparo-Concepción had been serving a sentence in

a Puerto Rico jail for bank fraud, a felony under Puerto Rico law. While in the custodyof the Commonwealth, Amparo-Concepción voluntarilycontacted federal authorities with information concerning a scheme among his fellow inmates to use fraudulent immi grat ion documents and faked Supreme Court orders to obtain premature release. Federal investigators became interested in thisinformation and obtained the material witness warrant for AmparoConcepción 's t ransfer to federal custody. 4 It was on that basis alone that Amparo-Concepción was moved from the Commonwealth jail to the MDC; the government does not contend that any other ground existed for Amparo-Concepción's detention by federal authorities.

On April 17, 2002, Rosa-Ortiz pleaded guilty to the chargedconspiracy to violate § 751(a). The district court5 Rosa-Ortiz also challenges the district court's

interpretation of U.S.S.G. § 2P1.1(a), which governs sentencing for escape offenses. Because we hold that Rosa-Ortiz's conduct was not a crime within the statute of conviction, however, we do not reach the sentencing issue. -5- sentencedhim to fif tee n months in prison, plus a supervised release term of three years and a special monetary assessment of $100. On appeal, Rosa-Ortiz contends that § 751(a) does not prohibit escape or attempted escape from federal material witness detention. If Amparo-Concepción's escape attempt did not violate § 751(a), the n Rosa-Ortiz did not conspire to "commit [that] offense against the United States," 18 U.S.C. § 371, and his conviction cannot stand. 5 II. A. Waiver The merits of Rosa-Ortiz's appeal are properly before us. In its brief, the Un ited States contended that Rosa-Ortiz waived his right to challenge the indictment when he entered an unconditional plea of guilty. See United States v. Lujan , 324 F.3d 27, 30 (1st Cir. 2003) (a guilty plea waives all nonjurisdictional challenges to a criminal conviction). At oral argument, however, the government correctly acknowledged that Rosa-Ortiz's guilty plea does not preclude him f rom arguing on appeal that the statute of conviction does not actually proscribe the conduct charged in the indictment. As this court has explained, "a federal court has jurisdiction to try criminal cases only when th e information or6 Cf. Menna v. New York , 423 U.S. 61, 63 n.2 (1975) (per

curiam) ("[A] plea of guilty to a charge does not waive a claim that –- judged on its face –- the charge is one which the State may not constitutionally prosecute."). -6- indictment alleges a violation of a valid federal law." United States v. Saade , 652 F.2d 1126, 1134 (1st Cir. 1981). A federal court similarly lacks jurisdiction to enter a judgment of conviction when the indictment charges no offense under federal law whatsoever. See United State s v. Peter , 310 F.3d 709, 713 (11th Cir. 2002) ("[A] district court is without jurisdiction to accept a guilty plea to a 'non-offense.'"); United States v. Andrade , 83 F.3d 729, 731 (5th Cir. 1996) (per curiam) (same).

Because jurisdictional challenges to an indictment may be raisedat any time, Fed. R. Crim. P. 12(b)(3)(B), including for the first time on appeal, United States v. Mojica-Baez , 229 F.3d 292, 309 (1st Cir. 2000), Rosa-Ortiz's guilty plea did not waive his right to argue that he has been imprisoned for conduct that Congress did not proscribe in the crime charged . 6 B. Interpretation of § 751(a)

This case presen ts a pure issue of statutory interpretation, which we review de novo. United States v. Molak , 276 F.3d 45, 49 (1st Cir. 2002).

As in any matter of statutory interpretation, the text of the statute is our starting point. Id. In relevant part, § 751(a) provides:7 Notwithstanding its sweeping preamble, § 751(a) creates two

categories of punishable offense, each defined by the legal basis for the escapee's federal custody: [The escapee] shall, [1] if the custody or confinement is byvirtue 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; or [2] if the custody or confinement is for extradition, or for exclusion or expulsion proceedings under the immigration laws, or by virtue of an arrest or charge of or for a misdemeanor, and prior to conviction , be fined under this title or imprisoned not more than one year, or both. § 751(a) (emphasis added). Only the first is involved in t hi s case. But because of the differing penalties, the indictment must -7- Whoever escapes or attempts to escape from the custodyof the AttorneyGeneral or his authorized representative, or fromany institution or facility in which he is confined bydirection 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 Uni ted 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 fine dunde r this title or imprisoned for not more than five years, or both . . . . This circuit has never had occasion to consider the elements of an offense under § 751(a).

The broad preamble text, which purp orts to cover any person who escapes "from any custody under . . . any process issued

. . . b y any court," plainly would encompass Amparo-Concepción's escape from federal m ater ial witness detention. The preamble, however, has consistently been held not to define all of the elements of the off ense, and we agree. Rather, because of the

narrower sentencing terms of the statute, 7 the government muststate, and the government must prove, the basis for the escapee's

federal custody. United States v. Vanover , 888 F.2d 1117, 1121 (6th Cir. 1989); United States v. Richardson , 687 F.2d 952, 954-62 (7th Cir. 1982).

8 These are the elements of a § 751(a) offense bearing a statutorymaximum sentence of five years. The elements of the lesser offense under § 751(a) are analogo us, with the specified bases for federal custody, listed in the disjunctiv e, c omprising the third element. -8- prove one of the enumerated bases for the escapee's federal custody. See United States v. Richardson , 687 F.2d 952, 954-62 (7th Cir. 1982) (discussing § 751(a) and its history at length); see also United States v. Patterson , 230 F.3d 1168, 1172 n.2 (9th Cir. 2000); United States v. Evans , 159 F.3d 908, 910 (4t h Cir . 1998); United States v. Vanover , 888 F.2d 1117, 1121 (6th Cir. 1989). Accordingly, courts have distilled three essential elements of the offense of escape under § 751(a): (1) escape or attempted escape; (2) fromthe custody of t he Attorney General or hi s appointedrepresentative, or from a place where the defendant is confined at the dir ection of the Attorney General; (3) where the custody is by virtue of (i) arrest on a charge of felony; or (ii) conviction of any offense. 8 See Evans , 159 F.3d a t 910; Va nover , 888 F.2d at 1121; United States v. Edrington , 726 F.2d 1029, 1031 (5 th C ir. 1984). The government acknowledges these elements. The dispute in this case involves only the third element.9 Section § 751 does not prohibit escapes by stat e pr isoners

from state c ustod y. United States v. Depew , 977 F.2d 1412, 1413 (10th Cir. 1992) ("Section 751 was not intended by Congress to applyto persons who merely escape from state custody."); United States v. Howard , 654 F.2d 522, 525 (8th Cir. 1981) (similar).

10 We do not decide this issue. Compare Derengowski v. United States , 404 F.2d 778, 781 (8th Cir. 1968) ("We cannot reasonably findthat Congress intended 'any offense' to mean 'federal offense' only."), with United States v. Edrington , 726 F.2d 1029, 1031 (5th Cir. 1984) (indictment under § 751(a) must allege that the escapee was held"pursuant to conviction of an identified federal offense" (emphasis added)). -9-

Whether and in what circumstan ces § 751(a) reaches escapes from material witness detention under 18 U.S.C. § 3144 appears t o be a question of first impression in the courts of appeals. The United States con ce des that Amparo-Concepción's arrest on a material witness warrant did not, by itself, constitute "an arrest on a charge of felony" or a "conviction of any offense." The government argues, however, that because Amparo-Concepción had alreadybeen convicted of a felony and incarcerated when he was tra nsferr edto federal custody, he was in federal custody "by virtue of conviction of any offense" and is therefore subject to pros ecu tion under § 751(a). 9 The conviction in question, the government urges, need not be a federal conviction.

There are seve ral flaws in the government's reasoning. First, even assuming the government is correct that a state conviction may satisfy the "conviction of any offens e" cla use of § 751(a) in appropriate circumstances, 10 the statute unequivocally requires that the escapee be in federal custody"by virtue of" that-10-

conviction. § 751(a); see Ri chardson , 687 F.2d at 966-67 ( reversing escape conviction under § 751(a) for insuff icien t evidence that the defendan t's cu stody was "by virtue of" a conviction of any offense). The statutory phrase "by virtue of," byits plain meaning, suggests a but-for causation test. See Webster's Third New Int'l Dictionary 307 (defining "by virtue of" to mean "by reason of" or "as a result of"); Black's Law Dictionary 201 (6th ed. 1990) ("By force of, by authority of, by reason of. Because of, thro ugh, or in pursuance of" (citations omitted)). Courts have applied the requirement in preci sely this fashion. See, e.g. , Patters on , 230 F.3d at 1171 (holding that supervised release constitutes custody"by virtue of" the original conviction becau se the defendant would not have been on supervised release "but for" the underlying conviction); Evan s , 159 F.3d at 913 (similar); Derengowski v. United States , 404 F.2d 778, 781-82 (8th Cir. 1968) (federal custody was "by virtue of" defendant's arrest

o n federal criminal charges because "but for defendant's arrest . . . he would never have been in federal custody").

Amparo-Concepción was not in federal custody "by virtue of" his Puerto Rico felony conviction. The United States cannot anddoes not claim that but for Amparo-Con cepc ión's conviction

u nder Puerto Rico law, he would not have been detai ned as a material witness. The material witn ess st atute does not require th at t he detained witness have an antecedent state conviction.-11-

§ 3144. Further, the United States makes no argument that there is a logical nexus between Amparo-Concepción's bank fraud conviction in the Puerto Rico courts and the material witness warrant for his arrest -- indeed, the government conceded at oral argument that the two are unrelated. According to the uncontroverted facts recited bydefense counsel at Rosa-Ortiz's sentencing, Amparo-Concepción voluntarilycontacted federal authorities to offer information regarding the use of fraudulent immigratio n do cuments in, ironically, prison escape schemes. The federal government became interestedin this information and ordered Amparo-Concepción detainedto ensure that his testimony would remain available as the investigation proceeded. The fact th at Amparo-Concepción was alreadyin a Puerto Rico jail at the time did not logically or legally enable his federal arrest –- it merely made him easier to locate. The material witness warrant could just as easily have issued on the same application if Amparo-Concepción had been free on the streets of San Juan; indeed, there was less reason for the federal court to issue the warrant here because Amparo-Concepción

was already deta ined by local authorities. Accordingly, AmparoConcepción was not in federal custody "by virtue of" a conviction of any offense, and his attemptedescape from that custody didnot violate § 751(a).

This explains why the government's reliance on Derengowski is misplac ed. In Derengowski , the defendant was11 The dissent would rely on Derengowski nonethe less ,

characterizing the Eighth Circuit's interpretation o f the "by virtue of" language in § 751 as "dicta" and an "alternative holding." This objection does not address the merits of our interpretation of the "by virtue of" clause. Nor does the primary holding of Derengowski help the dissent. Derengowski held that the "conviction of any offense" language in § 751 may be satisfied by state conviction s. See 404 F.2d at 781. We do not decide that question today. See supra note 10. Even assuming that Derengowski is correct, though, the federal custody must still be "by virtue of" the state convicti on. Nothing in Derengowski obviates that statutory requirement. -12- convictedof armed robbery in state court and imprisoned in a state facility. 404 F.2d at 779. Two years later, while still in state custody, he was indicted on federal charges and transferred to federal cour t for arraignment. The federal indictment was subsequentlydismissed. While awaiting his return to state custody, the defendant attempted to escape. Id. In upholding his conviction under § 751, the Eighth Circuit emphasized that although the federal charges had been dismissed before the defendant tried to escape, the defendant was nevertheless in federal custody "'by virtue of an arrest on a charge of felony' within the provisions of § 751 (i.e., but for defendant's arrest on the federal felony charges he would never have been in federal custody)." Id. at 781- 82. The same simply cannot be said of Amparo-Concepción: his Puerto Rico conviction was not a but-for cause of his federal detention. 11

Moreover, the government's interpretation of § 751 would require us to conclude that Congress outlawedescapes from material-13-

witness detention bypersons transferred fromstate prison, but not

e scapes from material witness detention by persons oth erwis e detained. Such a distinction would not be irrational; we simply do not find it in the language of the statute . Section 751(a) contains no reference to "tr ansf ers" between state and federal custody. As the government itself points out, the text of t he statute draws no distinction between state and federal offenses or convictions. In short, there is no textual basis for the government's interpretation of § 751(a).

Absent a textual basis for the government's argument,

concerns for lenity and due process compel us to reject it. See Dowling v. United States , 473 U.S. 207, 214 (1985) ("[W]hen choice has to b e mad e between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite."); see also Bryan v. United States , 524 U.S. 184, 205 (1998) (Scalia, J., dissenting) ("[A]mbiguity concerning the ambit of criminal statutes should be resolvedin favor of lenity."). We reject the government's argument and hold that § 751(a), by its terms, does not apply to persons held in federal custody solely by virtue of a material witness warrant.

The dissent would grant this conclusion but hold that Amparo-Concepción was actually in federal custody "by virt ue o f"-14-

his Pu erto Rico conviction. The dissent reaches this conclusion basedon an argument never raised by the government: that but for hi s Puerto Rico conviction, Amparo-Concepción would have been "entitled" to release under 18 U.S.C. § 3142, the statute governing pretrial release of criminal defendants. See § 3144 (authorizing

a judicial officer to "order the arrest of [a material witness] and treat the person in accordance with section 3142 of this title"). Implicit in this argument is the assumption that if AmparoConcepción had been so released, he would no lon ger h ave been in federal custody within the meaning of § 751.

We will assume arguendo that § 3142 applies with full force to material witnesses. But cf. In re Application of United States for Material Witness Warrant , 213 F. Supp. 2d 287, 295 (S.D.N.Y. 2002) (noting aspects of § 3142 that are apparently inapplicable to mate rial witnesses). Even so, the dissent's argument is flawed, for several reasons. First, t he factual premise is wrong. Nothing in § 3142 would "entitle[]" AmparoConcepción to release absent his Puert o Rico conviction. The Supreme Court has expressly rejected the notion that § 3142 offers

a guarantee of rel ease to any defendant. See United States v. Montalvo-Murillo , 495 U.S. 711, 720 (1990) ("Au tomatic release contravenes the object of the statute, to provide fair bail procedures while protecting the safety of the public and assuring the appearance at trial of defendants found likely to flee.").-15-

Indeed, given that the FBI was intereste d in Amparo-Concepción because of his knowledge of escape schemes, the court could conceivablyhave ordered him detained withou t bail on the ground that he presented a risk of flight. See United States v. Dillon , 938 F.2d1412, 1416 (1st Cir. 1991) (upholding denial of bail based

on risk of flight); United States v. Nai , 949 F. Supp. 42, 45 (D.Mass. 1996) (material witness may be detained under § 3142 if government establishes risk of flight by preponderance of the evidence). Nor is it true that the Puerto Rico conviction required the di stri ct court to order Amparo-Concepción held without bail. Section 3142 incorporates no such bright-line rule. In short, the dissent's conclusion that "[i]t was the Commonwealth's conviction that retained Amparo-Concepción in federal custody" is hardly a necessary one.

Second, the dissent is inc orre ct to assume that if Amparo-Concepción had been released u nder § 3142, he would no longer have been in federal custody for purposes of § 751. See UnitedStates v. Vaughn , 446 F.2d 1317 (D.C. Cir. 1971) (defendant who fled while on pretrial release was validly convicted of escape); United States v. Keller , 912 F.2d 1058, 1059-61 (9th Cir. 1990) (escape violation occurred when defendant failed to report to correcti onal facility to begin his sentence); United States v. Coggins , 398 F.2d 668 (4th Cir. 1968) (affirming escape conviction of defendant who failed to return from furlough).-16- Also, e ven if it were true that Amparo-Concepción's Puerto Rico conviction ensured that he was denied bail, that does not change the legal basis for Amparo-Concepción's federal detention. Section 3142 only applies to defendants in federal custodyon some legal basis. Amparo-Concepción was not in federal custodybecause he committed a state offense. He w as in federal custodybecause, and only because, he was arrested as a material witness. That fact is dispositive of this appeal, because we hold that § 751 does not apply to persons in federal custody solely on the basis of § 3144.

This conclusion is not reached lightly, and we have carefullyconsidered potential objections to our reading of § 751. At first blush , perhaps the strongest such objection arises from the Sentencing Guidelines. The guid eline applicable to escape offenses, U.S.S.G. § 2P1.1(a), states that the base offense level for a violation of § 751(a) shall be (1) 13, if the custody or confinement is by virtue of an arrest on a charge of fe lony, or conviction of any offense; (2) 8, otherwise. The "otherwise" clause could conce ivably be read to suggest that the Sentencing Commission, and derivatively Congress, understood § 751 to apply to any and all forms of federal custody, including mat eri al witness detention. The original text of the guideline couldbe said to reinforce this inference: rather than simply say12 A recalcitrant witness is a witness before any federal court

or grandjury who refuses, without just cause shown, to comply with an order to testify or produce documents or other information. See 28 U.S.C. § 1826(a). A material witness, by contrast, is a person whose testimony is material to a criminal proceeding and whose presence at the proceeding cannot practicably be secured by subpoena. See 18 U.S.C. § 3144. -17- "oth erwise," the 1987 text of § 2P1.1(a)(2) explicitly mentioned escape s "fr om lawful custody awaiting extradition, pursuant to designation as a recalcitrant witness or as a res ult of a lawful arrest for a misdemeanor." U.S.S.G. § 2P.1.1(a)(2) (1987) (amended 1989) (emphasis added). As Rosa-Ortiz's counsel arg ued at sentencing, material witness detention is similar to recalcitrant witness detention. 12 The guideline anticipated punishment for the latter, so the question is whether that fa ct suggests the Sentencing Commission and Congress understood § 751 to reach the former. The answer is no. The recalcitrant witness statute, 28 U.S.C. § 1826, deserved mention in the original version of § 2P1.1 not because § 751 punishes escape from recalcitrant witness detention, but because another statute does: § 1826 defines its own crime of escape. See § 1826(c) (escape from recalcitrant witness detention punishable by up to three years in prison); see also U.S.S.G. App. A (designating § 2P1.1 as the guideline applicable to convictions under 28 U.S.C. § 1826(c)) . Sec tion 1826(c) also proscribes e scape from confinement pursuant to 18 U.S.C. § 4243, which authorizes involuntary hospitalization pursuant to a judgment13 Of course, the "otherwise" clause in U.S.S.G. § 2P1.1(a)(2)

also governs sentencing in prosecutio ns under the misdemeanor escape provisions of § 751(a). See supra note 7. -18- of not guilty by reason of insanity. This not only explains why the Sentencing Guidelines anticipate escape offenses from "other[]" species of federal detention, 13 but also underscores our conclusion

re gard ing the relationship between § 751(a) and the material witness statute. Congress, it is evident, has corrected potential deficiencies in the scope of § 751(a) byenacting other statutes to prohibit escape fromparticular categories of federal custody. Yet

none of these statutes addresses escape from material witness detention, andthe material witness statute itself lacks an escape prohibition analogous to § 1826(c). See § 3144. This is not the first time that a gap has be en ident ified in the sweep of § 751. See 134 Cong. Rec. S17360, S17370 (Nov. 10, 1988) (acknowledging, in am end ing § 751(a) to proscribe escape from detention pending deportation or extradition, that the origi nal failure of the statute to prohibit such conduct was an "apparent oversight" and a "seemingly inadvertent omission").

We a re certain that Congress did not intend that attempted escapes by material witnesses in federal custody should bear no consequences. The government stated at oral argument that the defendants ' co nduct may at least constitute obstruction of justice. See 18 U.S.C. § 1503(a). But th at was not the crime chargedhere. For whatever reason, the government chose instead to-19-

charge a conspiracy to violate § 751(a). The plain text of that statute does not support the indictment in this case, and "due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its s cop e." UnitedStates v. Lanier , 520 U.S. 259, 266 (1997). Rosa-Ortiz's conviction cannot stand.

Before concluding, we will comment on one theme raised by the defense. Rosa-Ortiz points out that the language of the indictment effectively obscuredthe existence of the legal issue we have just resolved . The indictment charged that Rosa-Ortiz and others "conspired to obtain the unlawful release of MAXIMILIANO AMPARO-C ONCE PCIÓN, who was lawfully confined at the direction of the Attorney General byvirtue of a court order issued on December 7, 2000 by the United States District Court for the Dis trict o f Puerto Rico . . . at which time [Amparo-Concepción] was serving a sentence for a felony conviction of the Commonwealth of Puerto Rico." The indictment does not mention that the "court order" in question was a material witness warrant, and its phrasing arguably encourages the erroneous inference that Amparo-Concepción's federal detention was related to his Puerto Rico felony conviction. If this was purpo seful obfuscation to hide potential defects in the indictment, we would have significant concerns. But we are not preparedto conclude, without more, that the g over nment's-20-

circumlocution was purposefully done to hide the issue. Though the § 751(a) issue was obscured on the face of the indictment, defense counsel informed the court both at the change of plea hearing and at sen tencing that Amparo-Concepción was in federal custody only pursuant to a material witness warrant. Regrettably, the prosecutor didnot disclose this fact to the court; she merely did not deny defense counsel's assertion. Still, during the trial stage of this case neither defense counsel nor the court noticed the issue we have just resolved, and the same may have been true of the government. Nonetheless, the form of the indictment was, at best, unfortunate: th is appeal might never had occurred had the government paid closer attention to this issue from the outset. III. For these reasons, we conc lude t hat 18 U.S.C. § 751(a) does not prohibit attemptedescapes from detention under 18 U.S.C. § 3144. Rosa-Ortiz's guilty plea must be vacated and the indictment must be dismissed . So ordered .

Dissenting opinion follows.-21- SILER, Circuit Judge (dissenting). I respectfully dissent. I would uphold the conviction of Rosa-Ortiz because he pleaded guilty to conspiracy to violate 18 U.S.C. § 751(a), which is a federal offense under the language of the indictment.

The co-defendant, Amparo-Concepción, was imprisoned by th e Commonwealth of Puerto Rico for a felony offense. Thus, hi s confinement was “by virtue of [a] conviction of [an] offense,” 18 U.S.C. § 751(a), even though it was not a federal offense. Certainly, he was in federal custody pursuant to a material witness warrant under 18 U.S.C. § 3144. However, if there had not been the underlying Commonwealth conviction and custody, Amparo-Concepción wouldhave been entitled to possible release pursuant to 18 U.S.C. § 3142. It was the Commonwealth’s conviction that retained AmparoConcepción in federal custody.

I would follow the decisio n in Derengowski v. United States , 404 F.2d 778, 781 (8th Cir. 1968), that “any offense under § 751 includes state off enses.” Like Derengowski, AmparoConcepción’s cu stody was “by virtue of his conviction of any offense.” The majority opinion emphasizes the dicta or alternative holding in Derengowski that his custody was by virtue of an arrest on a charge of a felony. He was in federal custody pursuant to a writ of habeas corpus ad prosequendum to answer charges in federal court. However, before he escaped, the federal charges had been-22-

dismissed. Nevertheless, that alternative holding is dictum that need not govern our resolution of this issue.

I agree with the majority that the material witness warrant could just as easily have been issued on the same application if Amparo-Concepción had been free on the streets. In that case, his escape could not have been prosecuted in violation of § 751, because there was no underlying offense. Our situation is obviously different. I would affirm the conviction below for these reasons stated.