United States v. Anthony Burke
2012 U.S. App. LEXIS 19226
9th Cir.2012Background
- Burke completed his prison term and began a 28-month supervised release, with a residential reentry center (RRC) placement up to 180 days.
- Supervised release conditions required Burke to reside at SRRC, follow its rules, and remain until completion of the 180-day term.
- On April 27, 2010, Burke checked out of SRRC and did not return, becoming an absconder; Montana authorities arrested him, and he was returned to Washington for violations.
- In March 2011, a grand jury indicted Burke for escape from custody under 18 U.S.C. § 751(a).
- The district court dismissed the indictment, concluding Burke was not in custody under § 751(a), applying Baxley’s pretrial-release reasoning to Burke’s post-incarceration release.
- The government appealed; the circuit review is de novo for statutory interpretation and clear-error for underlying factual findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Burke was in custody under § 751(a) while in the SRRC. | Burke argues SRRC conditions resemble custody and confinement. | Burke was on supervised release, akin to probation, not custody. | Burke was not in custody; dismissal affirmed (no custodial confinement under § 751(a)). |
| Whether Baxley governs Burke’s custody status in this post-incarceration release context. | Distinguish Burke from Baxley; SRRC restrictions resemble incarceration. | SRRC is like standard supervised release; Baxley controls. | Baxley controls; Burke not in custody; indictment should be sustained only if custody shown. |
| Whether Sack or other circuits’ reasoning requires a broader custody definition. | Sack supports broader custody to include halfway-house releases. | Our precedent aligns with Baxley; Sack contradicts Baxley and should be rejected. | Declines to adopt Sack’s broader reading; adheres to Baxley-limited custody interpretation. |
| What is the governing standard for custody in this context and the appropriate remedies if ambiguity exists. | Rule of lenity should yield to a broader custody understanding in Burke’s favor. | Ambiguity resolved by circuit precedent; lenity not triggered here. | The statute is not ambiguous in this context; lenity does not require reversal; majority rule maintained. |
Key Cases Cited
- United States v. Baxley, 982 F.2d 1265 (9th Cir.1992) (pretrial release not custody under § 751(a) due to lack of post-incarceration confinement)
- United States v. Keller, 912 F.2d 1058 (9th Cir.1990) (custody hinges on whether defendant reasonably felt not free to leave)
- United States v. Jones, 569 F.2d 499 (9th Cir.1978) (parole/halfway house context; post-release confinement can constitute custody)
- United States v. Sack, 379 F.3d 1177 (10th Cir.2004) (broader custody reading for halfway-house pretrial release rejected by Ninth Circuit)
- United States v. Swanson, 253 F.3d 1220 (10th Cir.2001) (halfway house residence can entail custody restrictions)
- United States v. Person, 223 F. Supp. 982 (S.D. Cal.1963) (parolee living at halfway house not sufficiently restricted to be in custody)
- United States v. Rudinsky, 439 F.2d 1074 (6th Cir.1971) (custody where substantially deprived of freedom of movement and association)