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), Albuquerque, New Mexico, for

Defendant-Appellant.

Louis E. Valencia, Assistant United States Attorney (David C. Iglesias, United

States Attorney, with him on the brief), Albuquerque, 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 reside at a halfway house. Shortly

thereafter, Sack failed to return to the halfway house after a day of work as

required by the court’s order. Sack was later indicted for his role in the robbery

and for escape. Sack moved to dismiss the escape charge, 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 review hearing, the district court

did not detain Sack, but released him to the custody of the La Pasada Halfway

House. The conditions of Sack’s release were later modified and Sack was

allowed to reside with his mother. While staying with his mother, Sack violated

the conditions of the court’s order by testing positive for cocaine use. The district

court held a hearing and ordered Sack returned to the halfway house. Sack was

permitted to leave the halfway house for employment purposes, 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 failed 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 robbery, 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 in custody within the meaning

of § 751 at the time he left the halfway house because he was not in the custody

of the Attorney General. The district court rejected this argument and denied the

motion. In exchange for a guilty plea on the escape charge, the government

dropped the accessory after the fact charge. Under the plea agreement Sack

retained his right to appeal the district court’s order. 

III. DISCUSSION

Because it involves a question of statutory construction, we review de novo

the district court’s conclusion that Sack was in custody 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 custody 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 virtue of any

process issued under the laws of the United States by any court,
1

 While Swanson did make the distinction mentioned above, it deserves

mention that Swanson was not concerned with the identity of the custodian, 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 is not free to come and go at

will. In that respect, residence at a halfway house 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 arrest, 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 under 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 prior to 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 of any process issued under the

laws of United States by any court,” Sack argues that for the statute to apply, one

must be in the custody of the Attorney General at the time of the escape or

attempted escape. 

We have not previously addressed the specific question presented by Sack’s

argument. This court has, however, concluded that court ordered residence at a

halfway house does constitute custody for the purposes 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 under § 751, our precedent has

treated custody under § 751 broadly.1

Id. In United States v. Depew, 977 F.2d
constructive, suggests that the restrictions of life at a halfway house are

sufficiently limiting so as to constitute custody for 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 custody 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) (emphasis added). 

In addition, we have upheld an escape conviction based 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 in 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. Koray suggests that § 751 requires that a defendant be

in the custody of the Attorney General before he can be prosecuted for escape. 

515 U.S. 50, 56-57 (1995). Koray examines whether time spent on pretrial

release in a restrictive treatment center would entitle the defendant to a credit

against his sentence. Id. In discussing the question, the Court noted the
2

 Sack does argue that allowing custody based on a court order to support

an escape charge would “broaden[] the meaning of custody to objectionable

lengths,” because it would allow for an escape prosecution based on any custody,

even that of a family member designated as third party custodian. The escape

statute is designed to discourage conduct which endangers 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 detention 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 defendant on bail or (2)

order him “detained” without bail . . . . [U]nder the language of the

Bail Reform Act of 1984, a defendant suffers “detention” 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. 

Koray was examining the language of 18 U.S.C. § 3585, not the statute at

issue here. We, of course, must begin with the language 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.2 
custody of the third party custodian against the will of the custodian can menace

the welfare of that custodian as easily as a defendant escaping from jail can

menace corrections officers. The character of escape as “absenting oneself from

custody without permission” is not altered by pre-existing 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 ignoring those conditions

undermines the important determinations made by a court ordering pretrial

release. Thus, there is nothing absurd about discouraging such behavior. 

Whether the frequent use of an escape charge is appropriate under such

circumstances is a matter of prosecutorial discretion which is not challenged in

this appeal. 

-7-

There are other reasons, moreover, that the conclusions of Koray do not

affect the outcome in this case. The role of the Attorney General was especially

important in Koray because, as the Supreme Court noted § 3585, strongly

suggests that the type of pretrial detention allowing a defendant to claim a credit

against his sentence must be equivalent to imprisonment 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 facility not under the control of the

Attorney General, where conditions might not mirror those of imprisonment. Id. 

Furthermore, as the court in Koray notes, a court releasing a defendant has

the power to set a number of highly restrictive conditions on that release. See id.

at 57. This includes the power to restrict the defendant’s liberty. Id. Nothing in

Koray says that these conditions cannot constitute custody in the context of other

statutes even if the defendant is not in official detention for the purposes of §
3

 The Court in Koray also cites a BOP program statement which stated that

a defendant may not be prosecuted for escape when the 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 Koray to justify the BOP’s policy regarding time credit for pretrial

detention. See U.S. Dept. of Justice, Bureau of Prisons Program Statement No.

5880.28 (1997). The current program statement contains 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 Koray does 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 inappropriate 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 General before an escape charge

is permissible, as Sack argues here. Id. Instead Baxley focused 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 included the requirement that

the government prove the defendant was in the custody 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 custody is always required by

the statute. Instead, the facts of these cases were such that the custody of the

Attorney General was the relevant type of custody and, therefore, it was

unnecessary for these courts to consider the broader language in § 751. Harper,

901 F.2d at 473-74 (noting that the defendant was a federal 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 General). 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 for escape based on a court

order requires reading the phrase “or from any custody 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 the 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 preceding phrase. Thus, it is

our contextual reading which is convincing, not a definition 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 this argument below and,

therefore, we should decline to consider the issue. Sack, however, characterizes

his argument as concerning the sufficiency of the record and a defect in the

indictment. Sack’s contention is that the indictment 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 of his release. That claim goes to

the sufficiency of the indictment and, therefore, may 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 Felony4

Setting aside certain provisions not relevant here, under § 751 a defendant

must be in custody as the result of an arrest for a felony or a misdemeanor to be

charged with escape. See 18 U.S.C. § 751(a). Sack argues that because he was

returned to the halfway house as a result of violating the conditions of his release,

he was not in custody based on his arrest for a felony. Sack argues that United

States v. Green, 797 F.2d 855 (10th Cir. 1986) supports his conclusion. In

Green, the defendant was charged under § 751(a) for attempting to escape from

the custody of a parole officer who had arrested him for a violation of parole. Id.

at 856. We concluded that a violation of federal parole 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 conclude that his violation of

pretrial release conditions is not a felony or a misdemeanor. 

Green is easily distinguished from the case at hand. Until his arrest for a

violation of parole, Green was not in custody of any kind. The defendant’s
-11-

indictment under § 751 was for an “attempt to escape from the custody of . . . an

officer of the United States who had placed said defendant 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 escaped 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 due 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.