United States v. Ko
739 F.3d 558
| 10th Cir. | 2014Background
- Ko was sentenced to 60 months for conspiracy to distribute methamphetamine and transferred from prison to a halfway house and then to home confinement.
- Before home confinement, Ko signed a Community Based Program Agreement acknowledging BOP custody and potential escape prosecution, and agreeing to wear a monitoring bracelet and remain at home except for work.
- On October 12, 2012, Ko’s monitoring bracelet alerted that he did not return home; authorities arrested him on October 19, 2012.
- A magistrate dismissed the initial complaint for lack of custody; a grand jury indicted Ko again, and a superseding indictment clarified custody arose from his conspiracy conviction.
- The district court dismissed the superseding indictment, applying the rule of lenity due to lack of circuit precedent on the facts.
- The court held that being in home confinement is custody under § 751 and reversed, allowing the case to proceed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Ko in 'custody' under § 751 during home confinement? | Ko argues 'custody' requires physical restraint and is ambiguous. | Government argues custody includes BOP control during any term of imprisonment, including home confinement. | Yes; home confinement constitutes custody under § 751. |
| Does § 4082 limit or alter the meaning of 'custody' under § 751? | Ko contends § 4082 limits escape to enumerated scenarios, not home confinement. | Government maintains § 4082 merely expands what is deemed an escape, not limits it. | § 4082 does not preclude applying § 751 to home confinement; absconding from home confinement is an escape. |
| Does the plain text and statutory context resolve the custody question without invoking lenity? | Ko argues the meaning is ambiguous and lenity should apply. | Government contends the text, read with related statutes, shows custody without ambiguity. | No ambiguity; lenity not required; custody is satisfied by home confinement. |
Key Cases Cited
- Sack v. United States, 379 F.3d 1177 (10th Cir. 2004) (custody under § 751 can include halfway-house confinement)
- Depew v. United States, 977 F.2d 1412 (10th Cir. 1992) (custody under § 751 may be non-physical and constructive)
- Swanson v. United States, 253 F.3d 1220 (10th Cir. 2001) (restrictions in confinement can constitute custody)
- Husted v. United States, 545 F.3d 1240 (10th Cir. 2008) (reasoning on custody in context of § 751 readings)
- Muscarello v. United States, 524 U.S. 125 (1998) (court discusses strict vs. broad interpretation of 'custody')
- McCullough v. United States, 369 F.2d 548 (8th Cir. 1966) (§ 4082 does not preclude applying general § 751 to escapes)
- United States v. Wilson, 503 U.S. 329 (1992) (agency as 'authorized representative' for custody determinations)
- Dolan v. U.S. Postal Service, 546 U.S. 481 (2006) (dictionary definitions not controlling in statutory interpretation)