There have been two high-profile prison escapes in recent weeks — one in Mexico and one in upstate New York. In United States v. Small, the U.S. Court of Appeals for the Third Circuit dealt with a third escape that was much lower-profile but still interesting. It presented the question of whether an individual could be guilty of the federal crime of escape even if he was never in the physical custody of the federal government or its agents.
In Small, defendant was serving a state prison term when he was convicted of federal tax fraud and sentenced to 135 months in a federal prison. The federal sentence was set to begin after the state sentence expired. To that end, the U.S. Marshal delivered to the state prison a detainer, which "governed Small's transfer to federal authorities upon completion of his state sentence." A few years later, however, the state prison "received documents in the mail, ostensibly from the [federal court], but which in reality were forgeries sent at Small's direction," which purported to vacate Small's conviction and sentence. The forgeries must have been good because the state prison believed them to be genuine and released Small after his state prison sentence ended.
A few months after he was released from state prison, a federal agent learned of Small's release. Federal agents quickly located and arrested Small, charging him with several crimes including escape. Small moved to dismiss that charge on the ground that he was never in federal custody, a requisite element of the federal crime of escape. He then entered an "open plea of guilty" and was sentenced to 60 months in prison on each count of the indictment (to be served concurrently with each other but consecutively to his tax fraud sentence).
Small appealed, arguing that the indictment was insufficient on its face because he could not be guilty of the federal crime of escaping from "custody" because he was never in the physical custody of the federal government. The court rejected this argument. It observed that, to meet its burden under the federal escape statute (18 U.S.C. 751(a)), the government only had to establish that Small "absented himself from custody without permission." The "without permission" part seemed obvious, so the only real question before the court was whether Small was ever in "custody" within the meaning of the statute.
To answer this question, the court looked to the text of the escape statute, which provides, among other things, that: "[w]hoever escapes or attempts to escape from . . . any custody under or by virtue of any process issues under the laws of the United State by any court, judge, or magistrate judge . . . shall . . . be fined under this title or imprisoned not more than five years, or both." Thus, even though most people would probably associate "custody" with "physical custody," the statute is much broader. Small was in "custody" as soon as the district court entered the judgment of conviction in his tax fraud case. By engineering his escape from that "custody" through forged documents designed to appear as though they were issued from that same court, he was properly indicted for the federal crime of escape.
The court also noted that taking a broad view of "custody" — i.e., to include situations that do not involve escaping from physical custody — was consistent with the purpose of the escape statute, which was to "protect the public from the danger associated with federal criminals remaining at large." (Interestingly, on this point, the court observed that nearly 40% of escape crimes involved "'failure to report or return,' where the defendant simply did not show up to begin serving a sentence or failed to return from an authorized period of absence and therefore was not in physical custody at the time of the escape.") Interpreting "custody" to include individuals not in physical custody but subject to federal judgments of conviction advances that purpose, "as those who are convicted but never physically transferred to federal custody are 'federal criminals remaining at large.'"