United States v. Kevin Small, 793 F.3d 350

Small was federally convicted in 2007 for filing false tax returns and sentenced to 135 months, to be served consecutively after a Pennsylvania state sentence he was then serving.
A federal detainer and the district court’s judgment of conviction and sentence were lodged to secure transfer to federal custody after Small’s state term.
In 2011 Small caused forged court documents (purporting to vacate his federal judgment) to be sent to the state prison; Huntingdon officials accepted them.
Upon completion of his state sentence in January 2012, Huntingdon released Small rather than transferring him to federal authorities; federal agents later located and arrested him.
Small was indicted on multiple counts including escape under 18 U.S.C. § 751; he pled guilty but preserved a challenge to the indictment’s sufficiency on appeal.
The Third Circuit affirmed, holding that a federal judgment of conviction places a person in constructive federal custody for purposes of the escape statute.

Issue	Plaintiff's Argument (Small)	Defendant's Argument (Government)	Held
Whether Small can challenge indictment sufficiency after unconditional guilty plea	Rule 12(b)(3)(B) challenge preserved on appeal	Government concedes challenge is allowed	Court: Defendant may raise sufficiency on appeal
Whether § 751’s custodial element is met when defendant was never physically in federal custody	Custody requires physical custody; here Huntingdon released him rather than relinquishing to federal custody so § 751 not satisfied	A federal judgment of conviction constitutes "process" creating constructive federal custody	Court: Custody satisfied by lawful federal judgment of conviction (constructive custody)
Whether the indictment’s phrasing (one count saying released "rather than" relinquished) contradicts escape theory	Ambiguity/contradiction shows no federal custody alleged	Indictment’s Count III specifically alleges custody by virtue of the federal judgment and detainer	Court: No fatal inconsistency; Count III adequately alleges escape under § 751
Proper scope of "custody" under § 751	Limit "custody" to direct physical restraint	Statute covers constructive or minimal custody by virtue of federal process; broad reading furthers public-safety purpose	Court: "Custody" includes constructive custody from federal court process

United States v. Stock, 728 F.3d 287 (3d Cir. 2013) (standard of review for motions to dismiss indictments)
United States v. Hedaithy, 392 F.3d 580 (3d Cir. 2004) (defendant may challenge indictment sufficiency on appeal despite guilty plea)
United States v. Bailey, 444 U.S. 394 (U.S. 1980) (escape requires absenting oneself from custody without permission)
United States v. Gowdy, 628 F.3d 1265 (11th Cir. 2010) (federal judgment of conviction satisfies § 751 custody requirement)
United States v. Depew, 977 F.2d 1412 (10th Cir. 1992) (custody may be minimal or constructive)
United States v. Keller, 912 F.2d 1058 (9th Cir. 1990) (failure to report can constitute escape)
United States v. Cluck, 542 F.2d 728 (8th Cir. 1976) (escape can include nonphysical forms of custody)
United States v. Foster, 754 F.3d 1186 (10th Cir. 2014) (escape not limited to prior physical custody by Attorney General)
United States v. Hart, 578 F.3d 674 (7th Cir. 2009) (statute covers walkaways and failures to report)
Chambers v. United States, 555 U.S. 122 (U.S. 2009) (discusses prevalence of failures-to-report in escape prosecutions)