## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 17 2004 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. COURTNEY DAVID SACK,

Defendant-Appellant. No. 03-2253

Appeal from the United States District Court for the District of New Mexico (D.C. No. CR-02-1893-LH)
Stephen P. McCue, Federal Public Defender (Roger A. Finzel, Assistant Federal Public Defender, with him on the briefs), Albuquerq ue, New Mexico, for Defendant-Appellant. Louis E. Valencia, Assistant United States Attorney (David C. Iglesias, United States Attorney, with him on the brief), Albuquerqu e, New Mexico, for PlaintiffAppellee.

Before SEYMOUR, HOLLOWAY, and MURPHY, Circuit Judges.

MURPHY , Circuit Judge.-2-

I. INTRODUCTION After his arrest for involvement with a bank robbery, defendant Courtney David Sack was ordered by the district court to res ide at a halfway house. Shortly thereafter, Sack failed to return to the halfway ho use after a day of work as required by the court’s order. Sack was later indi cted for his role in the robbery and for escape. Sack moved to dismiss the escape c harge, but the district court denied the motion. Sack pleaded guilty to escape, but reserved his right to seek review of the district court’s order. Sack appeals , arguing that he was not in custody for the purposes of the escape statute, 18 U.S.C. § 751, when he left the halfway house because he was not in the custody of the Attorney General. This court has jurisdiction pursuant to 28 U.S.C. § 1291 . Because we conclude that Sack was in custody within the meaning of § 751, we affirm

. II. BACKGROUND Sack was arrested after he provided an acquaintance with transportation from the scene of a bank robbery. After a bail rev iew hearing, the district court did not detain Sack, but released him to the custod y of the La Pasada Halfway House. The conditions of Sack’s release were latermodified and Sack was allowed to reside with his mother. While staying w ith his mother, Sack violated the conditions of the court’s order by testing posi tive for cocaine use. The district court held a hearing and ordered Sack returned to t he halfway house. Sack was permitted to leave the halfway house for employmentpurposes, but was required-3-

to return to the halfway house after each work day. Shortly thereafter, pretrial services filed a petition alleging that Sack had fa iled to maintain residence at La Pasada because Sack did not return to the facility one day after work. Sack was indicted for aiding and abetting a bank ro bbery, in violation of 18 U.S.C. § 3, and for escape, in violation of 18 U.S. C. § 751. Sack moved to dismiss the escape charge arguing that he was not i n custody within the meaning of § 751 at the time he left the halfway house beca use he was not in the custody of the Attorney General. The district court reject ed this argument and denied the motion. In exchange for a guilty plea on the escap e charge, the government dropped the accessory after the fact charge. Underthe plea agreement Sack retained his right to appeal the district court’s o rder.
III. DISCUSSION Because it involves a question of statutory constru ction, we review de novo the district court’s conclusion that Sack was in cu stody as required by § 751. See United States v. LaHue , 170 F.3d 1026, 1028 (10th Cir. 1999). A. Custody under § 751 Sack was charged with escape under § 751(a). That section provides as follows: Whoever escapes or attempts to escape from the cust ody 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 v irtue of any process issued under the laws of the United States by any court,1 While Swanson did make the distinction mentioned above, it deser ves

mention that Swanson was not concerned with the identity of the custodi an, but whether the nature of residence at a halfway house was sufficiently restrictive to constitute custody. United States v Swanson , 253 F.3d 1220, 1224 (10th Cir. 2001) (“Life at a halfway house undoubtedly entails fewer restrictions than life in prison, but one who lives there under court order i s not free to come and go at will. In that respect, residence at a halfway hous e is a form of custody.” (quotation omitted)). Our holding in Depew , that custody may be minimal or -4- judge, or magistrate judge, or from the custody of an officer or employee of the United States pursuant to lawful ar rest, shall, if the custody or confinement is by virtue of an arrest on a charge of a felony, or conviction of any offense, be fined unde r this title or imprisoned not more than five years, or both; . . . or by virtue of an arrest or charge of or for a misdemeanor, and priorto conviction, be fined under this title or imprisoned not more than one year, or both. 18 U.S.C. § 751(a). Despite the broad language of the statute, “[w]hoever escapes . . . from any custody under or by virtue o f any process issued under the laws of United States by any court,” Sack argues th at for the statute to apply, one must be in the custody of the Attorney General at t he time of the escape or attempted escape. We have not previously addressed the specific quest ion presented by Sack’s argument. This court has, however, concluded that court ordered residence at a halfway house does constitute custody for the purpo ses of the sentencing guidelines. See United States v. Swanson , 253 F.3d 1220, 1223-24 (10th Cir. 2001). While we noted in Swanson that the meaning of custody for sentencing purposes may be different than what is required und er § 751, our precedent has treated custody under § 751 broadly. 1 Id. In United States v. Depew , 977 F.2dconstructive, suggests that the restrictions of lif e at a halfway house are sufficiently limiting so as to constitute custody f or the purposes of § 751. -5- 1412, 1414 (10th Cir. 1992) , we noted that “[c]ustody as used in the escape statute, does not require direct physical restraint . Custody may be minimal and, indeed, may be constructive.” Id . (citations and quotation omitted). Most importantly for the present case, we recognized that “the statute applies only to those escapees who were originally confined or in c ustody under federal law in the sense that they were held in the custody of the Attorney General or in custody by an order or process issued under the laws of the United States by a competent court or official .” Id . at 1413 (quotation and citation omitted) (emphasi s added). In addition, we have upheld an escape conviction ba sed on custody pursuant to process issued by a United States Commissioner. Credille v. United States , 354 F.2d 652, 653 (10th Cir. 1965). Because Sack was i n the custody of the halfway house as a result of an order of the district court , we conclude he was in custody under § 751. Sack argues Reno v. Koraysuggests that § 751 requires that a defendant be in the custody of the Attorney General before he ca n be prosecuted for escape. 515 U.S. 50, 56-57 (1995). Korayexamines whether time spent on pretrial release in a restrictive treatment center would ent itle the defendant to a credit against his sentence. Id . In discussing the question, the Court noted the2 Sack does argue that allowing custody based on a c ourt order to support

an escape charge would “broaden[] the meaning of cu stody to objectionable lengths,” because it would allow for an escape pros ecution based on any custody, even that of a family member designated as third pa rty custodian. The escape statute is designed to discourage conduct which end angers the welfare of the defendant’s custodians and to discourage the crimes that often follow an escape. See United States v. Brown , 333 U.S. 18, 21 n.5 (1948). A defendant leaving the -6- distinction between pretrial release and pretrial d etention under the Bail Reform
Act. Id. The Bail Reform Act of 1984 provides a federal court with two choices when dealing with a criminal defendant who has been “charged with an offense” and is awaiting trial, 18 U.S.C. § 3142(a) . . . . The court may either (1) “release” the defend ant on bail or (2) order him “detained” without bail . . . . [U]nder t he language of the Bail Reform Act of 1984, a defendant suffers “deten tion” only when committed to the custody of the Attorney General; a defendant admitted to bail on restrictive conditions . . . is “released.” Koray , 515 U.S. at 57 (citations omitted). A defendant who is “released” cannot “escape” argues Sack. Koraywas examining the language of 18 U.S.C. § 3585, no t the statute at issue here. We, of course, must begin with the lan guage of the statute relevant to this case. United States v. Morgan , 922 F.2d 1495, 1496 (10th Cir. 1991). “When, as in this case, the statute is unambiguous and free of irrational result, that language controls.” Id . (quotation omitted). Thus, because the plain language of the statute allows for a charge of escape based on “any custody” resulting from a court order there is no reason to conclude that a defendant must be in the custody of the Attorney General. 2custody of the third party custodian against the wi ll of the custodian can menace

the welfare of that custodian as easily as a defend ant escaping from jail can menace corrections officers. The character of escape as “absenting oneself from custody without permission” is not altered by pre-e xisting relationships between the custodian and the detainee. United States v. Bailey , 444 U.S. 394, 407 (1980). Moreover, the conditions of a defendant’s pretrial release are determined by a competent court to be that set of conditions which “will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(e). A defendant igno ring those conditions undermines the important determinations made by a c ourt ordering pretrial release. Thus, there is nothing absurd about disco uraging such behavior. Whether the frequent use of an escape charge is app ropriate under such circumstances is a matter of prosecutorial discreti on which is not challenged in this appeal. -7- There are other reasons, moreover, that the conclus ions of Koraydo not affect the outcome in this case. The role of the A ttorney General was especially important in Koraybecause, as the Supreme Court noted § 3585, strong ly suggests that the type of pretrial detention allowi ng a defendant to claim a credit against his sentence must be equivalent to imprison ment administered by the BOP and the Attorney General . Id . at 59

. Accordingly, it would be anomalous to allow a credit for pre-trial detention time spent at a fa cility not under the control of the Attorney General, where conditions might not mirrorthose of imprisonment. Id

. Furthermore, as the court in Koraynotes, a court releasing a defendant has the power to set a number of highly restrictive con ditions on that release. See id

. at 57. This includes the power to restrict the de fendant’s liberty. Id . Nothing in Koraysays that these conditions cannot constitute custo dy in the context of other statutes even if the defendant is not in official d etention for the purposes of §3 The Court in Korayalso cites a BOP program statement which stated th at

a defendant may not be prosecuted for escape when t he defendant has been released under the Bail Reform Act. Reno v. Koray , 515 U.S. 50, 61 n.4 (1995). The most recent version of that program statement, however, simply recites the holding of Korayto justify the BOP’s policy regarding time credit for pretrial detention. See U.S. Dept. of Justice, Bureau of Prisons Program S tatement No. 5880.28 (1997). The current program statement con tains no mention of the whether a prosecution for escape would be allowable . Accordingly, whether the BOP still adheres to the previous interpretation is unclear. -8- 3585. See id. at 57-63 ; Swanson , 253 F.3d at 1223 (“the term ‘custody’ may vary in meaning when used in different contexts.” (quotation and citation omitted)). Thus, the decision in Koraydoes not affect our conclusion here. 3
Sack also relies on United States v. Baxley , 982 F.2d 1265, 1269-70 (9th Cir. 1992), which held that an escape charge was in appropriate in a factual setting similar to that extant in this case. Baxley, however, does not conclude that a defendant must be in the custody of the Attorney Ge neral before an escape charge is permissible, as Sack argues here. Id . Instead Baxleyfocused on whether the specific conditions of residence at a halfway house were sufficiently restrictive to constitute custody in the abstract sense. Id . Given our holding in Depew that custody may be minimal or even constructive, we are not persuaded by the reasoning in Baxley

. Depew , 977 F.2d at 1414. Sack also argues that a number of cases have includ ed the requirement that the government prove the defendant was in the custo dy of the Attorney General as an element of § 751. See, e.g., United States v. Harper, 901 F.2d 471, 473-74-9-

(5th Cir. 1990); United States v. McCray , 468 F.2d 446, 448 (10th Cir. 1972). None of these cases have discussed whether such cus tody is always required by the statute. Instead, the facts of these cases wer e such that the custody of the Attorney General was the relevant type of custody a nd, therefore, it was unnecessary for these courts to consider the broade r language in § 751. Harper, 901 F.2d at 473-74 (noting that the defendant was afederal prisoner serving a two-year sentence when he escaped); McCray , 468 F.2d at 448 (10th Cir. 1972) (describing the defendant as having escaped from a penitentiary farm at which he was confined at the direction of the Attorney Gener al). Because these cases do not address the validity of a conviction for escape from custody based on a court order, they do not exclude such a conviction under § 751(a). Finally, Sack argues that allowing a prosecution fo r escape based on a court order requires reading the phrase “or from any cust ody under or by virtue of any process issued under the laws of the United States by any court” in isolation from the rest of the statute. To the contrary, it is th e contrast between this phrase and the rest of the statute created by the disjunctive “or” beginning the quote which makes the meaning of the phrase distinct from the p receding phrase. Thus, it is our contextual reading which is convincing, not a d efinition extracted by isolating the relevant phrase. Accordingly, we conclude that Sack was in custody for the purposes of § 751 when he left the halfway house.4 The government argues that Sack failed to raise th is argument below and,

therefore, we should decline to consider the issue. Sack, however, characterizes his argument as concerning the sufficiency of the r ecord and a defect in the indictment. Sack’s contention is that the indictme nt misstates the basis of his custody as an arrest for a felony when in fact his custody at the time of escape was the result of his violation of the conditions o f his release. That claim goes to the sufficiency of the indictment and, therefore, m ay be raised at any time. United States v. Gama-Bastidas , 222 F.3d 779, 785 (10th Cir. 2000). We review such a claim de novo

. Id . at 786 -10- B. Custody Based on Arrest for a Felony 4 Setting aside certain provisions not relevant here, under § 751 a defendant must be in custody as the result of an arrest for afelony or a misdemeanor to be charged with escape. See 18 U.S.C. § 751(a). Sack argues that because he w as returned to the halfway house as a result of violat ing the conditions of his release, he was not in custody based on his arrest for a fel ony. Sack argues that United
States v. Green , 797 F.2d 855 (10th Cir. 1986) supports his conclu sion. In
Green , the defendant was charged under § 751(a) for atte mpting to escape from the custody of a parole officer who had arrested hi m for a violation of parole. Id

. at 856. We concluded that a violation of federal p arole is neither a misdemeanor nor a felony, although the conduct constituting the violation might be either one. Id . at 858. Similarly, Sack argues we should conclud e that his violation of pretrial release conditions is not a felony or a mi sdemeanor.
Green is easily distinguished from the case at hand. Un til his arrest for a violation of parole, Green was not in custody of an y kind. The defendant’s-11-

indictment under § 751 was for an “attempt to escap e from the custody of . . . an officer of the United States who had placed said de fendant under arrest for the offense of violation of federal parole . . . .” Id . at 856. Thus, the only basis for Green’s custody was his arrest for violating parole

. The court’s control of Sack’s liberty, however, was premised on his arrest for a felony. As the indictment indicates, Sack es caped from “a facility in which he was lawfully confined . . . after being lawfully arrested for accessory after the fact to armed bank robbery, a felony offense under 18 U.S.C. § 3.” This is an accurate statement of the basis for Sack’s custody because throughout the relevant period Sack was subject to court orders that arose from his arrest for the felony. That the court twice altered the conditions of Sack ’s release based on his behavior does not sever the connection between the original arrest and the custody from which Sack escaped. Accordingly, Sack’s arrest is clearly related to a felony. The outcome in Green, therefore , does not control and we conclude that Sack’s indictment properly stated that he was in custody d ue to an arrest for a felony as required by the statute.
IV. CONCLUSION Because we conclude that Sack was in custody at the time of his escape for the purposes of § 751, we affirm

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