FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BUD RAY BROWN,

Defendant-Appellant.

No. 16-30143

D.C. No.

2:16-cr-00019-

JLQ

OPINION

Appeal from the United States District Court

for the Eastern District of Washington

Justin L. Quackenbush, Senior District Judge, Presiding

Argued and Submitted October 3, 2017

Seattle, Washington

Filed November 21, 2017

Before: Kermit Victor Lipez,

* Kim McLane Wardlaw,

and John B. Owens, Circuit Judges.

Opinion by Judge Lipez

 * The Honorable Kermit V. Lipez, United States Circuit Judge for 

the First Circuit, sitting by designation.
2 UNITED STATES V. BROWN

SUMMARY**

Criminal Law

The panel affirmed the district court’s denial of a preplea motion to dismiss an indictment in a case in which the 

defendant pleaded guilty to attempted escape in violation of 

18 U.S.C. § 751(a).

The defendant moved to dismiss on two grounds. His 

jurisdictional claim asserted that the district court could not 

charge him under § 751(a) because he was not in federal 

custody at the time of the attempted escape. His 

prosecutorial vindictiveness claim argued that the timing of 

the indictment – filed approximately five months after the 

attempted escape and only after the defendant’s declaration 

was introduced in his cell mate’s trial – created a 

presumption of prosecutorial vindictiveness. 

The panel held that the defendant’s unconditional guilty 

plea does not preclude this court from considering the merits 

of his appeal because both of the defendant’s challenges 

qualify as jurisdictional claims. 

The panel held that a federal prisoner remains in federal 

“custody” for purposes of § 751(a), even when housed at a 

state institution pursuant to writ of habeas corpus ad 

prosequendum, and that the district court therefore did not 

err in refusing to dismiss the indictment for lack of 

jurisdiction. 

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. BROWN 3

The panel held that the district court likewise did not err 

in denying the defendant’s motion to dismiss on 

prosecutorial vindictiveness grounds. The panel explained 

that the mere fact that the government decided to indict the 

defendant after obtaining his written declaration does not 

create a presumption of vindictiveness.

COUNSEL

Bryan Paul Whitaker (argued), Spokane, Washington, for 

Defendant-Appellant.

Russell E. Smoot (argued), Assistant United States Attorney, 

United States Attorney’s Office, Spokane, Washington, for 

Plaintiff-Appellee.

OPINION

LIPEZ, Circuit Judge:

For the first time in this circuit, we address the impact of 

a writ of habeas corpus ad prosequendum on the question of 

whether an inmate serving a federal sentence remains under 

“the custody of the Attorney General” as per 18 U.S.C. 

§ 751(a) when he is held at a state-run institution pursuant to 

the writ. Bud Ray Brown appeals the district court's denial 

of his pre-plea motion to dismiss, filed, in part, on the ground 

that he was not in federal custody as a matter of law at the 

time of the attempted escape. We now hold that Brown 

remained under the custody of the Attorney General for 

purposes of § 751(a) despite his incarceration at a state-run 

jail, and affirm the judgment of the district court in full.
4 UNITED STATES V. BROWN

I.

In July 2013, Brown was sentenced to a fifteen-year term 

of incarceration after pleading guilty to the possession of a 

firearm in violation of 18 U.S.C. § 922(g)(1)&(2). Brown 

was initially incarcerated at a federal penitentiary in 

Virginia. In July 2014, the State of Washington obtained a 

writ of habeas corpus ad prosequendum, seeking Brown’s 

transfer so that he could face a first degree murder charge. 

Brown was thereafter moved to the Spokane County Jail. On 

August 20, 2015, persons outside of the jail observed a rope 

hanging from the window of Brown’s cell. Someone had 

removed the cell’s window and thrown various items out of 

the opening. Brown shared his cell with another inmate, 

James Henrikson, who was awaiting trial on federal charges. 

Neither Brown nor Henrikson were immediately charged 

with attempted escape for this conduct.

In December 2015, during Henrikson’s trial, the 

government moved to admit the August escape attempt as 

evidence of Henrikson’s guilty conscience. In response, 

Henrikson’s counsel introduced a handwritten declaration 

by Brown stating that Brown, not Henrikson, “had been 

plotting an escape for some time,” and that Brown was the 

one responsible for causing damage to the cell window. In 

February 2016, Brown was indicted in the Eastern District 

of Washington on the charge of attempted escape, in 

violation of 18 U.S.C. § 751(a).

Brown moved to dismiss the indictment for lack of 

jurisdiction or, in the alternative, for prosecutorial 

vindictiveness. Brown’s jurisdictional claim asserted that he 

was not in federal custody at the time of the attempted 

escape. Therefore, the government could not charge him 

under 18 U.S.C. § 751(a). Brown’s prosecutorial 

vindictiveness claim argued that the timing of the 
UNITED STATES V. BROWN 5

indictment—filed approximately five months after the 

attempted escape and only after Brown’s declaration was 

introduced in Henrikson’s trial—created a presumption of 

prosecutorial vindictiveness. On April 1, 2016, the district 

court denied the motion and, immediately thereafter, Brown 

entered a guilty plea without a written plea agreement. 

Brown was later sentenced to 41 months’ imprisonment, to 

run consecutively with his existing federal sentence. Brown 

timely filed a Notice of Appeal, challenging the district 

court’s adverse ruling on his pretrial motion to dismiss.

II.

A. Preclusion 

As a threshold inquiry, we must first determine whether 

Brown’s guilty plea precludes us from considering the merits 

of his appeal. The entry of an unconditional guilty plea 

precludes appellate review of most challenges to pre-plea 

rulings. See United States v. Jacobo Castillo, 496 F.3d 947, 

954 (9th Cir. 2007) (en banc) (collecting cases). Here, 

Brown’s plea, entered without a written plea agreement or 

other memorialization of reservations, was unconditional. 

See Fed. R. Crim. P. 11(a)(2) (stating that, to enter a 

conditional plea, a defendant must reserve in writing “the 

right to have an appellate court review an adverse 

determination of a specified pretrial motion”). We “strictly” 

read the requirements of Rule 11(a)(2). United States v. 

Cortez, 973 F.2d 764, 766 (9th Cir. 1992).

An unconditional plea does not, however, bar 

consideration of the merits of all claims arising from preplea rulings. We may still consider “jurisdictional claims,” 

i.e., those challenging a conviction independently of the 

question of factual guilt. See id. at 766‒67 (“A plea of guilty 

to a charge does not waive a claim that the charge is one 
6 UNITED STATES V. BROWN

which the government constitutionally may not prosecute.”); 

see also Menna v. New York, 423 U.S. 61, 62 n.2 (1975) (per 

curiam). Both of Brown’s challenges qualify as 

jurisdictional claims. The Supreme Court held in Blackledge

v. Perry that the merits of a vindictive prosecution claim are 

reviewable even after entry of an unconditional plea because 

the defendant is contending that “the very initiation of the 

proceedings against him” constitute a denial of the due 

process of law. 417 U.S. 21, 30–31 (1974); see also United 

States v. Garcia-Valenzuela, 232 F.3d 1003, 1005–06 (9th 

Cir. 2000). Likewise, Brown’s claim involving the legal 

status1 of his custody challenges the government’s power to 

bring the indictment “at the time the plea was entered on the 

basis of the existing record.” United States v. Broce, 

488 U.S. 563, 575 (1989). If Brown’s confinement did not 

qualify as federal custody, the government would have had 

no grounds from the outset to hail him into court pursuant to 

18 U.S.C. § 751(a). Accordingly, we consider the merits of 

each of these claims in turn.2

 1 Repeatedly characterizing the question of federal custody as a 

dispute of fact, the government argues that the claim should be treated 

as an evidentiary challenge. The government misunderstands the 

relevant issue. None of the facts concerning Brown’s custody—why was 

Brown imprisoned, where was Brown incarcerated, on what basis was 

he incarcerated at that location—are in dispute. Rather the question is 

purely legal: given the undisputed facts of Brown’s custody, does such 

custody qualify as “custody of the Attorney General” as per 18 U.S.C. 

§ 751(a)?

2 Other claims previously classified as jurisdictional include: double 

jeopardy, Menna, 423 U.S. at 62; the district court’s lack of power to 

keep a defendant in court, Garcia-Valenzuela, 232 F.3d at 1007; 

unconstitutional vagueness, United States v. Sandsness, 988 F.2d 970, 

971 (9th Cir. 1993); failure of the indictment to properly state an offense, 

United States v. Broncheau, 597 F.2d 1260, 1262–63 (9th Cir. 1979); 
UNITED STATES V. BROWN 7

B. Legal Custody Status

Brown asserts that he was improperly charged with 

attempted escape under 18 U.S.C. § 751(a) because he was 

not in federal custody at the time of the events in question. 

Section 751(a) applies, in part, to individuals who “escape[] 

or attempt[] to escape from the custody of the Attorney 

General or his authorized representative.” 18 U.S.C. 

§ 751(a). Brown argues that, even though he was serving a 

sentence imposed by a federal judgment, he was incarcerated 

at the Spokane County Jail pursuant to a writ of habeas 

corpus ad prosequendum in order to answer state criminal 

charges.

We have not previously addressed this precise legal 

question: does “custody of the Attorney General” for 

purposes of § 751(a) continue when a federal prisoner is held 

at a state prison pursuant to a writ of habeas corpus ad 

prosequendum? We have, however, previously decided that 

a prisoner’s prior custody status persists in the inverse 

scenario: when a state prisoner is transferred to a federal 

detention facility pursuant to a writ of habeas corpus ad 

prosequendum. In Thomas v. Brewer, we held that “[w]hen 

an accused is transferred pursuant to a writ of habeas corpus 

ad prosequendum he is considered to be ‘on loan’ to the 

federal authorities so that the sending state’s jurisdiction 

over the accused continues uninterruptedly.” 923 F.2d 1361, 

1367 (9th Cir. 1991) (quoting Crawford v. Jackson, 589 F.2d 

693, 695 (D.C. Cir. 1978)). We see no basis for 

distinguishing between the state and federal custody analysis 

in these two scenarios.

 

and unconstitutionality of the statute under which the defendant was 

indicted, Journigan v. Duffy, 552 F.2d 283, 289 (9th Cir. 1977).
8 UNITED STATES V. BROWN

Moreover, we have previously concluded in the related 

context of 18 U.S.C. § 1072 that a federal prisoner housed in 

a designated state facility remains in federal custody as a 

matter of law. See United States v. Hobson, 519 F.2d 765, 

771 (9th Cir. 1975). Section 1072 makes it unlawful to 

“willfully harbor[] or conceal[] any prisoner after his escape 

from the custody of the Attorney General or from a Federal 

penal or correctional institution.” 18 U.S.C. § 1072. We 

held in Hobson that “escape from an institution designated 

by the Attorney General, pursuant to a commitment to his 

custody, under a federal sentence, is an escape from ‘the 

custody of the Attorney General’ in the legal sense, even 

though the institution is run by the State.” 519 F.2d at 771; 

see also United States v. Eaglin, 571 F.2d 1069, 1073 (9th 

Cir. 1977). Based on the similarity in subject matter between 

§ 751(a) and § 1072, as well as the identical use of the phrase 

“custody of the Attorney General” in both statutes, we 

adhere to a consistent interpretation of “custody.”

Hence, the district court did not err in denying Brown’s 

motion to dismiss on the ground that Brown was in federal 

custody as a matter of law pursuant to § 751(a).3

 3 In concluding that a federal prisoner remains in federal “custody”

for purposes of § 751(a) even when housed at a state institution pursuant 

to writ of habeas corpus ad prosequendum, we join the interpretations of 

the Fourth and Seventh Circuits. See United States v. Maday, 799 F.3d 

776, 777 (7th Cir. 2015) (transferring a federal inmate “by virtue of a 

writ of habeas corpus ad prosequendum” retains enough federal interest 

“to justify charging him with escaping from federal custody even though 

the actual custodians from whom he escaped were state employees”); 

United States v. Evans, 159 F.3d 908, 911 (4th Cir. 1998) (“a writ of 

habeas corpus ad prosequendum does not effect a transfer of custody for 

purposes of § 751(a) ”).
UNITED STATES V. BROWN 9

C. Prosecutorial Vindictiveness

Brown also contends that the district court erred in 

denying his motion to dismiss on the ground that the 

indictment was brought due to prosecutorial vindictiveness. 

To the extent the “vindictive prosecution inquiry turns upon 

a district court’s proper application of the law, our review is 

de novo.” United States v. Kent, 649 F.3d 906, 912 (9th Cir. 

2011). To the extent a determination of vindictive 

prosecution turns upon factual findings, we review for clear 

error. Id.

Although Brown may establish a vindictive prosecution 

claim “by producing direct evidence of the prosecutor’s 

punitive motivation,” such evidence is not necessary. United 

States v. Jenkins, 504 F.3d 694, 699 (9th Cir. 2007). 

Without direct evidence, Brown may still establish a 

prosecutorial vindictiveness claim by following a burden 

shifting framework. To do so, Brown must first create a 

“presumption of vindictiveness.” Id. A rebuttable 

presumption of vindictiveness is created “by showing that 

the circumstances establish a ‘reasonable likelihood of 

vindictiveness.’” Kent, 649 F.3d at 912–13 (quoting United 

States v. Goodwin, 457 U.S. 368, 373 (1982)); see also

United States v. Gallegos-Curiel, 681 F.2d 1164, 1169 (9th 

Cir. 1982). If Brown does that, the burden shifts to the 

government to present “objective evidence justifying the 

prosecutor’s action.” Goodwin, 457 U.S. at 376 n.8.

Lacking any direct evidence of punitive motive, Brown 

avers that the timing of the indictment—filed approximately 

five months after the attempted escape and only after 

Brown’s declaration was introduced at Henrikson’s trial—

satisfies his burden of creating a presumption of 

vindictiveness. The timing of the indictment alone, 

however, is insufficient. See Gallegos-Curiel, 681 F.2d at 
10 UNITED STATES V. BROWN

1168 (stating that “the link of vindictiveness cannot be 

inferred simply because the prosecutor’s actions followed 

the exercise of a right”).4 Particularly when a vindictiveness 

claim pertains to pretrial charging decisions, the Supreme 

Court urges deference to the prosecutor. See Kent, 649 F.3d 

at 913 (citing Goodwin, 457 U.S. at 381). Deference is 

appropriate for pretrial charging decisions because, “in the 

course of preparing a case for trial, the prosecutor may 

uncover additional information that suggests a basis for 

further prosecution.” Goodwin, 457 U.S. at 381. Brown 

offers no support for the proposition that the government had 

sufficient evidence to prosecute him for attempted escape 

prior to the submission of his written declaration in the 

Henrikson trial. Cf. Jenkins, 504 F.3d at 700. Hence, the 

mere fact that the government subsequently decided to indict 

Brown after obtaining his written declaration does not create 

a presumption of vindictiveness.

Accordingly, the district court did not err in denying 

Brown’s motion to dismiss on prosecutorial vindictiveness 

grounds.

AFFIRMED.

 4 Appellant also fails to explain why the decision of Henrikson’s 

defense counsel to submit to the court Brown’s previously written 

declaration should be treated as an “exercise of a right” by Brown.