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Federal Prisoner’s Custody Status Continues While “on Loan” to Face State Charges

The Ninth Circuit Court of Appeals held on November 21, 2017 that a federal prisoner remains in the custody of the U.S. Attorney General despite being held on behalf of state officials.

Bud Ray Brown was serving a 15-year federal sentence for possession of a firearm when the State of Washington obtained a writ of habeas corpus ad prosequendum to transfer him from a prison in Virginia to the Spokane County Jail (SCJ) to face a first-degree murder charge.

On August 20, 2015, persons outside the SCJ observed a rope hanging from the window of Brown’s cell. Neither Brown nor his cellmate, James Henrickson, was immediately charged with attempted escape. During Henrickson’s federal trial, the government admitted the escape attempt as evidence of Henrickson’s guilty conscience. In response, Henrickson’s counsel entered a handwritten declaration from Brown that stated he, not Henrickson, “had been plotting an escape for some time” and was responsible for causing damage to the cell window.

Two months later, Brown was indicted on an attempted escape charge in violation of 18 U.S.C. § 751(a). He moved to dismiss, arguing lack of jurisdiction – since he “was not in federal custody at the time of the attempted escape” – and prosecutorial vindictiveness. The district court denied his motion. Brown entered an unconditional guilty plea and was sentenced to 41 months in prison, consecutive to his existing federal sentence. He then appealed.

The Ninth Circuit held it was not precluded from hearing the appeal because Brown had presented “jurisdictional claims” that may be heard regardless of his unconditional guilty plea.

The appellate court had not previously considered the question of whether “custody of the Attorney General” continues when a federal prisoner is held on behalf of state officials pursuant to a writ of habeas corpus ad prosequendum, and therefore whether Brown remained in federal custody for the purpose of being charged with attempted escape under 18 U.S.C. § 751(a).

The Court of Appeals noted that it had, however, previously found a federal prisoner’s prior custody status continued when transferred to a state facility. That precedent held the prisoner was “on loan.” See: United States v. Hobson, 519 F.2d 765 (9th Cir. 1975). The Court determined there was “no basis for distinguishing between the state and federal custody analysis in these two scenarios.”

As to prosecutorial vindictiveness, Brown lacked evidence of a punitive motive by the prosecution; further, the Ninth Circuit found the timing of the indictment was insufficient to create a presumption of vindictiveness. The district court’s order was affirmed. See: United States v. Brown, 875 F.3d 1235 (9th Cir. 2017). 


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Related legal case

United States v. Brown