and Submitted October 3, 2017 Seattle, Washington
from the United States District Court for the Eastern
District of Washington D.C. No. 2:16-cr-00019-JLQ Justin L.
Quackenbush, Senior District Judge, Presiding
Paul Whitaker (argued), Spokane, Washington, for
Russell E. Smoot (argued), Assistant United States Attorney,
United States Attorney's Office, Spokane, Washington, for
Before: Kermit Victor Lipez, [*] Kim McLane Wardlaw, and John B.
Owens, Circuit Judges.
panel affirmed the district court's denial of a pre-plea
motion to dismiss an indictment in a case in which the
defendant pleaded guilty to attempted escape in violation of
18 U.S.C. § 751(a).
defendant moved to dismiss on two grounds. His jurisdictional
claim asserted that the district court could not charge him
under § 751(a) because he was not in federal custody at
the time of the attempted escape. His prosecutorial
vindictiveness claim argued that the timing of the indictment
- filed approximately five months after the attempted escape
and only after the defendant's declaration was introduced
in his cell mate's trial - created a presumption of
panel held that the defendant's unconditional guilty plea
does not preclude this court from considering the merits of
his appeal because both of the defendant's challenges
qualify as jurisdictional claims.
panel held that a federal prisoner remains in federal
"custody" for purposes of § 751(a), even when
housed at a state institution pursuant to writ of habeas
corpus ad prosequendum, and that the district court therefore
did not err in refusing to dismiss the indictment for lack of
panel held that the district court likewise did not err in
denying the defendant's motion to dismiss on
prosecutorial vindictiveness grounds. The panel explained
that the mere fact that the government decided to indict the
defendant after obtaining his written declaration does not
create a presumption of vindictiveness.
first time in this circuit, we address the impact of a writ
of habeas corpus ad prosequendum on the question of whether
an inmate serving a federal sentence remains under "the
custody of the Attorney General" as per 18 U.S.C. §
751(a) when he is held at a state-run institution pursuant to
the writ. Bud Ray Brown appeals the district court's
denial of his pre-plea motion to dismiss, filed, in part, on
the ground that he was not in federal custody as a matter of
law at the time of the attempted escape. We now hold that
Brown remained under the custody of the ...