United States Court of Appeals For the First Circuit
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, 2003
* Of the United States Court of Appeals for the Sixth Circuit, sitting by designation. 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
by persons who are in federal custody under specified conditions --
including, as the statute pertains to this case, persons in custody
"by virtue 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, Rosa-
Ortiz says that § 751(a) does not prohibit the conduct alleged in
the indictment. We agree.
The conspiracy charge was based on evidence that Rosa-
Ortiz 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 was 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-
1 For this reason, we also vacate today Amparo-Concepción's conspiracy conviction following his guilty plea in the companion case to this appeal, United States v. Amparo-Concepción, No. 02- 1935.
-2- Ortiz cannot 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 grand jury returned an
indictment against Rosa-Ortiz and four co-conspirators, including
Amparo-Concepción, for conspiracy to violate § 751(a).3 According
to the government's summary of the facts, which was attached to the
plea agreement and acknowledged by Rosa-Ortiz in writing, the
defendants plotted to free Amparo-Concepción from the federal
Metropolitan Detention Center (MDC) in Puerto Rico. The escape
plan involved smuggling a bar-cutting tool into the MDC, meeting
Amparo-Concepción outside 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 that Amparo-Concepción could identify the chosen getaway car.
Rosa-Ortiz did in fact act on most of these plans, including
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 co- defendants 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- 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 witness 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 custody of the Commonwealth, Amparo-Concepción
voluntarily contacted federal authorities with information
concerning a scheme among his fellow inmates to use fraudulent
immigration documents and faked Supreme Court orders to obtain
premature release. Federal investigators became interested in this
information and obtained the material witness warrant for Amparo-
Concepción's transfer 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
charged conspiracy to violate § 751(a). The district court
4 The record does not reveal why federal authorities preferred to have Amparo-Concepción in federal custody, rather than allow him to remain incarcerated in the Puerto Rico system until his testimony became necessary.
-4- sentenced him to fifteen 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), then 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 United 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 from 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 the information or
5 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- 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 States 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
raised at 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 presents 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:
6 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- 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, 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 felony, or conviction of any offense, be fined under 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 purports to cover any
person who escapes "from any custody under . . . any process issued
. . . by any court," plainly would encompass Amparo-Concepción's
escape from federal material witness detention. The preamble,
however, has consistently been held not to define all of the
elements of the offense, and we agree. Rather, because of the
narrower sentencing terms of the statute,7 the government must
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 by virtue 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 this case. But because of the differing penalties, the indictment must
-7- 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 (4th 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) from the custody of the Attorney General or his appointed representative, or from a place where the defendant is confined at the direction 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 at 910; Vanover, 888 F.2d at 1121; United
States v. Edrington, 726 F.2d 1029, 1031 (5th Cir. 1984). The
government acknowledges these elements. The dispute in this case
involves only the third element.
state, 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 statutory maximum sentence of five years. The elements of the lesser offense under § 751(a) are analogous, with the specified bases for federal custody, listed in the disjunctive, comprising the third element.
-8- Whether and in what circumstances § 751(a) reaches
escapes from material witness detention under 18 U.S.C. § 3144
appears to be a question of first impression in the courts of
appeals. The United States concedes 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
already been convicted of a felony and incarcerated when he was
transferred to federal custody, he was in federal custody "by
virtue of conviction of any offense" and is therefore subject to
prosecution under § 751(a).9 The conviction in question, the
government urges, need not be a federal conviction.
There are several flaws in the government's reasoning.
First, even assuming the government is correct that a state
conviction may satisfy the "conviction of any offense" clause of
§ 751(a) in appropriate circumstances,10 the statute unequivocally
requires that the escapee be in federal custody "by virtue of" that
9 Section § 751 does not prohibit escapes by state prisoners from state custody. United States v. Depew, 977 F.2d 1412, 1413 (10th Cir. 1992) ("Section 751 was not intended by Congress to apply to 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 find that 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- conviction. § 751(a); see Richardson, 687 F.2d at 966-67
(reversing escape conviction under § 751(a) for insufficient
evidence that the defendant's custody was "by virtue of" a
conviction of any offense). The statutory phrase "by virtue of,"
by its 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, through, or in pursuance of" (citations omitted)).
Courts have applied the requirement in precisely this fashion.
See, e.g., Patterson, 230 F.3d at 1171 (holding that supervised
release constitutes custody "by virtue of" the original conviction
because the defendant would not have been on supervised release
"but for" the underlying conviction); Evans, 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
on 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
and does not claim that but for Amparo-Concepción's conviction
under Puerto Rico law, he would not have been detained as a
material witness. The material witness statute does not require
that the detained witness have an antecedent state conviction.
-10- § 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
by defense counsel at Rosa-Ortiz's sentencing, Amparo-Concepción
voluntarily contacted federal authorities to offer information
regarding the use of fraudulent immigration documents in,
ironically, prison escape schemes. The federal government became
interested in this information and ordered Amparo-Concepción
detained to ensure that his testimony would remain available as the
investigation proceeded. The fact that Amparo-Concepción was
already in 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 detained by local authorities. Accordingly, Amparo-
Concepción was not in federal custody "by virtue of" a conviction
of any offense, and his attempted escape from that custody did not
violate § 751(a).
This explains why the government's reliance on
Derengowski is misplaced. In Derengowski, the defendant was
-11- convicted of 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 court for arraignment. The federal indictment was
subsequently dismissed. 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 outlawed escapes from material
11 The dissent would rely on Derengowski nonetheless, characterizing the Eighth Circuit's interpretation of 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 convictions. 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 conviction. Nothing in Derengowski obviates that statutory requirement.
-12- witness detention by persons transferred from state prison, but not
escapes from material witness detention by persons otherwise
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 "transfers" between state and federal
custody. As the government itself points out, the text of the
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 be made 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
resolved in 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 virtue of"
-13- his Puerto Rico conviction. The dissent reaches this conclusion
based on an argument never raised by the government: that but for
his 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 Amparo-
Concepción had been so released, he would no longer have 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 material witnesses). Even so, the dissent's
argument is flawed, for several reasons. First, the factual
premise is wrong. Nothing in § 3142 would "entitle[]" Amparo-
Concepción to release absent his Puerto Rico conviction. The
Supreme Court has expressly rejected the notion that § 3142 offers
a guarantee of release to any defendant. See United States v.
Montalvo-Murillo, 495 U.S. 711, 720 (1990) ("Automatic 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.").
-14- Indeed, given that the FBI was interested in Amparo-Concepción
because of his knowledge of escape schemes, the court could
conceivably have ordered him detained without bail on the ground
that he presented a risk of flight. See United States v. Dillon,
938 F.2d 1412, 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 district 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 incorrect to assume that if
Amparo-Concepción had been released under § 3142, he would no
longer have been in federal custody for purposes of § 751. See
United States 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
correctional 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).
-15- Also, even 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
custody on some legal basis. Amparo-Concepción was not in federal
custody because he committed a state offense. He was in federal
custody because, 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
carefully considered potential objections to our reading of § 751.
At first blush, perhaps the strongest such objection arises from
the Sentencing Guidelines. The guideline 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 felony, or conviction of any offense;
(2) 8, otherwise.
The "otherwise" clause could conceivably be read to suggest that
the Sentencing Commission, and derivatively Congress, understood
§ 751 to apply to any and all forms of federal custody, including
material witness detention. The original text of the guideline
could be said to reinforce this inference: rather than simply say
-16- "otherwise," the 1987 text of § 2P1.1(a)(2) explicitly mentioned
escapes "from lawful custody awaiting extradition, pursuant to
designation as a recalcitrant witness or as a result 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 argued 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 fact 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)). Section 1826(c) also
proscribes escape from confinement pursuant to 18 U.S.C. § 4243,
which authorizes involuntary hospitalization pursuant to a judgment
12 A recalcitrant witness is a witness before any federal court or grand jury 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- 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
regarding the relationship between § 751(a) and the material
witness statute. Congress, it is evident, has corrected potential
deficiencies in the scope of § 751(a) by enacting other statutes to
prohibit escape from particular categories of federal custody. Yet
none of these statutes addresses escape from material witness
detention, and the material witness statute itself lacks an escape
prohibition analogous to § 1826(c). See § 3144. This is not the
first time that a gap has been identified in the sweep of § 751.
See 134 Cong. Rec. S17360, S17370 (Nov. 10, 1988) (acknowledging,
in amending § 751(a) to proscribe escape from detention pending
deportation or extradition, that the original failure of the
statute to prohibit such conduct was an "apparent oversight" and a
"seemingly inadvertent omission").
We are 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' conduct may at least constitute obstruction of
justice. See 18 U.S.C. § 1503(a). But that was not the crime
charged here. For whatever reason, the government chose instead to
13 Of course, the "otherwise" clause in U.S.S.G. § 2P1.1(a)(2) also governs sentencing in prosecutions under the misdemeanor escape provisions of § 751(a). See supra note 7.
-18- 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 scope."
United States 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 obscured the 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-CONCEPCIÓN, who was lawfully confined at the direction of
the Attorney General by virtue of a court order issued on December
7, 2000 by the United States District Court for the District of
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 purposeful obfuscation to hide potential defects in the
indictment, we would have significant concerns. But we are not
prepared to conclude, without more, that the government's
-19- 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 sentencing that Amparo-Concepción was in federal custody only
pursuant to a material witness warrant. Regrettably, the
prosecutor did not 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: this appeal might never had occurred had the
government paid closer attention to this issue from the outset.
III.
For these reasons, we conclude that 18 U.S.C. § 751(a)
does not prohibit attempted escapes 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.
-20- 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
the Commonwealth of Puerto Rico for a felony offense. Thus, his
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
would have been entitled to possible release pursuant to 18 U.S.C.
§ 3142. It was the Commonwealth’s conviction that retained Amparo-
Concepción in federal custody.
I would follow the decision in Derengowski v. United
States, 404 F.2d 778, 781 (8th Cir. 1968), that “any offense under
§ 751 includes state offenses.” Like Derengowski, Amparo-
Concepción’s custody 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
-21- 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.
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