United States v. Bud Brown, 875 F.3d 1235

Bud Ray Brown was serving a 15-year federal sentence and was transferred from a federal penitentiary to the Spokane County Jail pursuant to a writ of habeas corpus ad prosequendum so he could face state charges.
While at the county jail, a window was removed and items and a rope were observed outside Brown’s cell; Brown later signed a handwritten declaration claiming responsibility for the escape attempt.
Five months after the incident and after Brown’s declaration was introduced at a co-inmate’s federal trial, Brown was indicted in federal court for attempted escape under 18 U.S.C. § 751(a).
Brown moved to dismiss pre-plea, arguing (1) he was not in federal custody at the time of the attempt and thus § 751(a) did not apply, and (2) the indictment was a product of prosecutorial vindictiveness.
The district court denied the motion; Brown pled guilty without reserving appellate rights and appealed the denial, challenging the legal custody determination and the vindictiveness ruling.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a federal prisoner held at a state facility under a writ of habeas corpus ad prosequendum is in "custody of the Attorney General" for purposes of 18 U.S.C. § 751(a)	Brown: transfer under a writ placed him under state custody, so § 751(a) does not apply	Government: legal custody remains federal despite physical detention in a state facility	Court: Remained in federal custody; § 751(a) applies (affirmed)
Whether timing of indictment creates presumption of prosecutorial vindictiveness	Brown: indictment came only after his declaration was used at co-defendant’s trial, creating a reasonable likelihood of vindictiveness	Government: timing alone insufficient; prosecutor may obtain new evidence during preparation	Court: Timing alone did not create a presumption; government not shown to have acted vindictively (affirmed)
Whether Brown’s unconditional guilty plea bars appellate review of these pre-plea claims	Brown: sought review despite pleading guilty	Government: unconditional plea generally waives pre-plea claims	Court: Plea does not bar review of jurisdictional claims (custody and vindictiveness), so claims considered
Standard of review for vindictiveness and custody questions	Brown: factual and legal challenges warrant review	Government: some factual determinations implicate deferential review	Court: legal questions reviewed de novo; factual findings reviewed for clear error

Thomas v. Brewer, 923 F.2d 1361 (9th Cir. 1991) (transfer under writ leaves original jurisdiction in sending authority; prisoner considered "on loan")
United States v. Hobson, 519 F.2d 765 (9th Cir. 1975) (federal prisoner in state-designated facility remains in federal custody for statutory escape provisions)
United States v. Maday, 799 F.3d 776 (7th Cir. 2015) (writ ad prosequendum does not eliminate federal custodial interest for escape prosecution)
United States v. Evans, 159 F.3d 908 (4th Cir. 1998) (writ ad prosequendum does not transfer custody for purposes of § 751(a))
Goodwin v. United States, 457 U.S. 368 (1982) (framework for presumption of prosecutorial vindictiveness and deference to pretrial charging decisions)
Blackledge v. Perry, 417 U.S. 21 (1974) (vindictiveness claims reviewable after unconditional guilty plea)