Friday, September 14, 2012

U.S. v. Burke, No. 11-30140 (09-13-12) (Tashima with Nelson; dissent by Callahan).
If a defendant on SR is ordered to stay at a halfway house as a condition, and subsequently leaves, has he escaped from custody under 18 USC 751(a). That occurred here. The defendant was placed at a halfway house under SR and left. "No," said the 9th, "it was not an escape from custody". The dismissal of the indictment was affirmed. A halfway house condition is neither a prison sentence nor being placed there by BOP. The 9th explains that prior precedent, Baxley, 982 1265 (9th Cir. 1992), held that pretrial placement at a halfway house was not escape from custody. The same reasoning holds true for SR. Indeed, the district judge, in dismissing the indictment, explained that the placement was to allow a transition, after a prior SR violation that led to a 6 month sentence, back to the community. It was not meant to be custodial. The holding places the 9th in conflict with the 6th and 10th. So, there is no a circuit conflict. Dissenting, Callahan argues that the opinion: (1) downplays that the order was custodial in nature; (2) improperly expands precedent; and (3) creates a circuit conflict.

Congratulations to longtime CJA stalwart Pete Schweda in the ED Washington for the win.


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