Tuesday, November 21, 2017

US v. Brown, No. 16-30143 (11-21-17) (Lipez  with Wardlaw & Owens).

In an issue of first impression concerning "federal custody,'  the 9th holds that when an inmate is serving a federal sentence, but is held in state custody pursuant to a writ of habeas corpus ad prosequendum, he is still under the custody of the Attorney General for purposes of the offense of "attempted escape" under 18 USC 751(a).  The 9th also held that it had jurisdiction even though the defendant had entered an unconditional guilty plea because the issue was jurisdictional.

The defendant also raised an issue of prosecutorial vindictiveness. The defendant's "attempted escape" charge occurred five months after the conduct, and upon his giving a declaration at his cellmate's trial (the declaration stating that the defendant had been planning an escape for some time).  Because of the timing, the defendant argued that the prosecutor failed to rebut the presumption of vindictiveness.  The 9th held that the court did not err in denying the motion.  Courts defer to prosecutor’s charging decisions pretrial.  Here, the declaration gave the prosecutor evidence.  There is no presumption of vindictiveness.

The decision is here:



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