          United States Court of Appeals
                      For the First Circuit


No. 02-2362

                          UNITED STATES,

                            Appellee,

                                v.

                        MIGUEL ROSA-ORTIZ,

                      Defendant, Appellant.


         ON APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Daniel R. Dominguez, U.S. District Judge]


                              Before

                       Lynch, Circuit Judge,
                      Siler, Circuit Judge,*
                    and Lipez, Circuit Judge.


     Rafael F. Castro Lang for appellant.

     Nelson Perez-Sosa, Assistant United States Attorney, with whom
H.S. Garcia, United States Attorney, and Sonia I. Torres-Pabon,
Assistant United States Attorney, were on brief, for appellee.



                         October 28, 2003



     *
      Of the United States Court of Appeals for the Sixth Circuit,
sitting by designation.
               LYNCH, Circuit Judge.       Miguel Rosa-Ortiz pleaded guilty

in federal court to conspiracy to violate the Federal Escape Act,

18 U.S.C. § 751(a), which criminalizes escape and attempted escape

by persons who are in federal custody under specified conditions --

including, as the statute pertains to this case, persons in custody

"by virtue of an arrest on a charge of felony, or conviction of any

offense."       But no court of appeals may uphold a plea of guilty to

conduct that is not within the crime charged.               On appeal, Rosa-

Ortiz says that § 751(a) does not prohibit the conduct alleged in

the indictment.        We agree.

               The conspiracy charge was based on evidence that Rosa-

Ortiz       helped   his   co-defendant,     Maximiliano   Amparo-Concepción,

attempt to escape from federal prison in Puerto Rico.             Yet not all

escapes from federal custody violate § 751(a).              We conclude that

Amparo-Concepción was not in federal custody "by virtue of an

arrest on a charge of felony, or conviction of any offense"

(whether state or federal), but instead solely by virtue of his

detention on a federal material witness warrant.               Cf. 18 U.S.C.

§ 3144.        By its own terms, the Federal Escape Act does not

proscribe escapes under such circumstances,1 which means that Rosa-




        1
       For this reason, we also vacate today Amparo-Concepción's
conspiracy conviction following his guilty plea in the companion
case to this appeal, United States v. Amparo-Concepción, No. 02-
1935.

                                       -2-
Ortiz    cannot   be   guilty   of   conspiring   to   violate   that   Act.2

Accordingly, we vacate the judgment of conviction and remand with

instructions to dismiss the indictment.

                                      I.

            On February 7, 2001, a federal grand jury returned an

indictment against Rosa-Ortiz and four co-conspirators, including

Amparo-Concepción, for conspiracy to violate § 751(a).3           According

to the government's summary of the facts, which was attached to the

plea agreement and acknowledged by Rosa-Ortiz in writing, the

defendants plotted to free Amparo-Concepción from the federal

Metropolitan Detention Center (MDC) in Puerto Rico.              The escape

plan involved smuggling a bar-cutting tool into the MDC, meeting

Amparo-Concepción outside the prison with a getaway car and a

change of clothes, and then fleeing to the Dominican Republic.

Rosa-Ortiz's role was to obtain the getaway car, recruit others to

help, handle funds sent from the Dominican Republic to finance the

escape, and coordinate an advance trip to the perimeter of the MDC

so that Amparo-Concepción could identify the chosen getaway car.

Rosa-Ortiz did in fact act on most of these plans, including



     2
      This does not mean that Rosa-Ortiz's conduct did not violate
some other federal statute. We hold only that the indictment did
not validly allege a conspiracy to violate § 751(a).
     3
        The indictment also charged Rosa-Ortiz and three co-
defendants with aiding and abetting escape under 18 U.S.C. §§
752(a) and 2, but that count was later dismissed against Rosa-Ortiz
pursuant to his plea agreement.

                                     -3-
driving the getaway car to the perimeter of the MDC on February 3,

2001.    The FBI foiled the plot.

              At the time of the escape attempt, Amparo-Concepción was

being held at the MDC pursuant to a material witness warrant issued

on December 7, 2000 by the federal district court in Puerto Rico.

Cf. § 3144 (authorizing, in limited circumstances, the detention of

a witness whose testimony is material to a criminal proceeding).

Until that time, Amparo-Concepción had been serving a sentence in

a Puerto Rico jail for bank fraud, a felony under Puerto Rico law.

While    in   the   custody   of   the   Commonwealth,       Amparo-Concepción

voluntarily      contacted    federal        authorities    with    information

concerning a scheme among his fellow inmates to use fraudulent

immigration documents and faked Supreme Court orders to obtain

premature release. Federal investigators became interested in this

information and obtained the material witness warrant for Amparo-

Concepción's transfer to federal custody.4              It was on that basis

alone that Amparo-Concepción was moved from the Commonwealth jail

to the MDC; the government does not contend that any other ground

existed for Amparo-Concepción's detention by federal authorities.

              On April 17, 2002, Rosa-Ortiz pleaded guilty to the

charged conspiracy      to    violate    §    751(a).      The   district   court



     4
       The record does not reveal why federal authorities preferred
to have Amparo-Concepción in federal custody, rather than allow him
to remain incarcerated in the Puerto Rico system until his
testimony became necessary.

                                     -4-
sentenced him to fifteen months in prison, plus a supervised

release term of three years and a special monetary assessment of

$100.     On appeal, Rosa-Ortiz contends that § 751(a) does not

prohibit escape or attempted escape from federal material witness

detention.      If Amparo-Concepción's escape attempt did not violate

§ 751(a), then Rosa-Ortiz did not conspire to "commit [that]

offense against the United States," 18 U.S.C. § 371, and his

conviction cannot stand.5

                                       II.

A.    Waiver

             The merits of Rosa-Ortiz's appeal are properly before us.

In its brief, the United States contended that Rosa-Ortiz waived

his     right   to   challenge   the    indictment   when   he   entered   an

unconditional plea of guilty. See United States v. Lujan, 324 F.3d

27, 30 (1st Cir. 2003) (a guilty plea waives all nonjurisdictional

challenges to a criminal conviction).         At oral argument, however,

the government correctly acknowledged that Rosa-Ortiz's guilty plea

does not preclude him from arguing on appeal that the statute of

conviction does not actually proscribe the conduct charged in the

indictment.      As this court has explained, "a federal court has

jurisdiction to try criminal cases only when the information or


      5
         Rosa-Ortiz   also   challenges   the    district   court's
interpretation of U.S.S.G. § 2P1.1(a), which governs sentencing for
escape offenses. Because we hold that Rosa-Ortiz's conduct was not
a crime within the statute of conviction, however, we do not reach
the sentencing issue.

                                       -5-
indictment alleges a violation of a valid federal law."                      United

States v. Saade, 652 F.2d 1126, 1134 (1st Cir. 1981).                     A federal

court    similarly    lacks    jurisdiction        to   enter    a    judgment   of

conviction when the indictment charges no offense under federal law

whatsoever.    See United States v. Peter, 310 F.3d 709, 713 (11th

Cir. 2002) ("[A] district court is without jurisdiction to accept

a guilty plea to a 'non-offense.'"); United States v. Andrade, 83

F.3d 729, 731 (5th Cir. 1996) (per curiam) (same).

            Because jurisdictional challenges to an indictment may be

raised at any time, Fed. R. Crim. P. 12(b)(3)(B), including for the

first time on appeal, United States v. Mojica-Baez, 229 F.3d 292,

309 (1st Cir. 2000), Rosa-Ortiz's guilty plea did not waive his

right to argue that he has been imprisoned for conduct that

Congress did not proscribe in the crime charged.6

B.   Interpretation of § 751(a)

            This     case     presents   a     pure      issue       of   statutory

interpretation, which we review de novo.                United States v. Molak,

276 F.3d 45, 49 (1st Cir. 2002).

            As in any matter of statutory interpretation, the text of

the statute is our starting point.           Id.   In relevant part, § 751(a)

provides:



     6
       Cf. Menna v. New York, 423 U.S. 61, 63 n.2 (1975) (per
curiam) ("[A] plea of guilty to a charge does not waive a claim
that –- judged on its face –- the charge is one which the State may
not constitutionally prosecute.").

                                     -6-
     Whoever escapes or attempts to escape from the custody of
     the Attorney General or his authorized representative, or
     from any institution or facility in which he is confined
     by direction of the Attorney General, or from any custody
     under or by virtue of any process issued under the laws
     of the United States by any court, judge, or magistrate
     judge, or from the custody of an officer or employee of
     the United States pursuant to lawful arrest, shall, if
     the custody or confinement is by virtue of an arrest on
     a charge of felony, or conviction of any offense, be
     fined under this title or imprisoned for not more than
     five years, or both . . . .

This circuit has never had occasion to consider the elements of an

offense under § 751(a).

          The broad preamble text, which purports to cover any

person who escapes "from any custody under . . . any process issued

. . . by any court," plainly would encompass Amparo-Concepción's

escape from federal material witness detention.      The preamble,

however, has consistently been held not to define all of the

elements of the offense, and we agree.     Rather, because of the

narrower sentencing terms of the statute,7 the government must


     7
       Notwithstanding its sweeping preamble, § 751(a) creates two
categories of punishable offense, each defined by the legal basis
for the escapee's federal custody:

     [The escapee] shall, [1] if the custody or confinement is
     by virtue of an arrest on a charge of felony, or
     conviction of any offense, be fined under this title or
     imprisoned not more than five years, or both; or [2] if
     the custody or confinement is for extradition, or for
     exclusion or expulsion proceedings under the immigration
     laws, or by virtue of an arrest or charge of or for a
     misdemeanor, and prior to conviction, be fined under this
     title or imprisoned not more than one year, or both.

§ 751(a) (emphasis added).   Only the first is involved in this
case. But because of the differing penalties, the indictment must

                               -7-
prove one    of   the   enumerated   bases   for   the   escapee's   federal

custody.    See United States v. Richardson, 687 F.2d 952, 954-62

(7th Cir. 1982) (discussing § 751(a) and its history at length);

see also United States v. Patterson, 230 F.3d 1168, 1172 n.2 (9th

Cir. 2000); United States v. Evans, 159 F.3d 908, 910 (4th Cir.

1998); United States v. Vanover, 888 F.2d 1117, 1121 (6th Cir.

1989).

            Accordingly,    courts   have    distilled    three   essential

elements of the offense of escape under § 751(a):

     (1)    escape or attempted escape;
     (2)    from the custody of the Attorney General or his
            appointed representative, or from a place where the
            defendant is confined at the direction of the
            Attorney General;
     (3)    where the custody is by virtue of
            (i)    arrest on a charge of felony; or
            (ii)   conviction of any offense.8

See Evans, 159 F.3d at 910; Vanover, 888 F.2d at 1121; United

States v. Edrington, 726 F.2d 1029, 1031 (5th Cir. 1984).               The

government acknowledges these elements.        The dispute in this case

involves only the third element.




state, and the government must prove, the basis for the escapee's
federal custody. United States v. Vanover, 888 F.2d 1117, 1121
(6th Cir. 1989); United States v. Richardson, 687 F.2d 952, 954-62
(7th Cir. 1982).
     8
       These are the elements of a § 751(a) offense bearing a
statutory maximum sentence of five years.   The elements of the
lesser offense under § 751(a) are analogous, with the specified
bases for federal custody, listed in the disjunctive, comprising
the third element.

                                     -8-
           Whether   and   in    what   circumstances   §    751(a)   reaches

escapes from material witness detention under 18 U.S.C. § 3144

appears to be a question of first impression in the courts of

appeals.    The United States concedes that Amparo-Concepción's

arrest on a material witness warrant did not, by itself, constitute

"an arrest on a charge of felony" or a "conviction of any offense."

The government argues, however, that because Amparo-Concepción had

already been convicted of a felony and incarcerated when he was

transferred to federal custody, he was in federal custody "by

virtue of conviction of any offense" and is therefore subject to

prosecution under § 751(a).9            The conviction in question, the

government urges, need not be a federal conviction.

           There are several flaws in the government's reasoning.

First, even   assuming     the   government   is   correct    that    a   state

conviction may satisfy the "conviction of any offense" clause of

§ 751(a) in appropriate circumstances,10 the statute unequivocally

requires that the escapee be in federal custody "by virtue of" that


     9
       Section § 751 does not prohibit escapes by state prisoners
from state custody. United States v. Depew, 977 F.2d 1412, 1413
(10th Cir. 1992) ("Section 751 was not intended by Congress to
apply to persons who merely escape from state custody."); United
States v. Howard, 654 F.2d 522, 525 (8th Cir. 1981) (similar).
     10
       We do not decide this issue. Compare Derengowski v. United
States, 404 F.2d 778, 781 (8th Cir. 1968) ("We cannot reasonably
find that Congress intended 'any offense' to mean 'federal offense'
only."), with United States v. Edrington, 726 F.2d 1029, 1031 (5th
Cir. 1984) (indictment under § 751(a) must allege that the escapee
was held "pursuant to conviction of an identified federal offense"
(emphasis added)).

                                    -9-
conviction.       §   751(a);   see   Richardson,    687     F.2d    at    966-67

(reversing     escape   conviction    under   §   751(a)    for    insufficient

evidence   that   the   defendant's     custody    was     "by    virtue   of"   a

conviction of any offense).       The statutory phrase "by virtue of,"

by its plain meaning, suggests a but-for causation test.                      See

Webster's Third New Int'l Dictionary 307 (defining "by virtue of"

to mean "by reason of" or "as a result of"); Black's Law Dictionary

201 (6th ed. 1990) ("By force of, by authority of, by reason of.

Because of, through, or in pursuance of" (citations omitted)).

Courts have applied the requirement in precisely this fashion.

See, e.g., Patterson, 230 F.3d at 1171 (holding that supervised

release constitutes custody "by virtue of" the original conviction

because the defendant would not have been on supervised release

"but for" the underlying conviction); Evans, 159 F.3d at 913

(similar); Derengowski v. United States, 404 F.2d 778, 781-82 (8th

Cir. 1968)     (federal custody was "by virtue of" defendant's arrest

on   federal    criminal    charges     because    "but      for    defendant's

arrest . . . he would never have been in federal custody").

             Amparo-Concepción was not in federal custody "by virtue

of" his Puerto Rico felony conviction.            The United States cannot

and does not claim that but for Amparo-Concepción's conviction

under Puerto Rico law, he would not have been detained as a

material witness.       The material witness statute does not require

that the detained witness have an antecedent state conviction.


                                      -10-
§ 3144.   Further, the United States makes no argument that there is

a logical nexus between Amparo-Concepción's bank fraud conviction

in the Puerto Rico courts and the material witness warrant for his

arrest -- indeed, the government conceded at oral argument that the

two are unrelated.        According to the uncontroverted facts recited

by defense counsel at Rosa-Ortiz's sentencing, Amparo-Concepción

voluntarily contacted federal authorities to offer information

regarding    the   use     of   fraudulent      immigration    documents   in,

ironically, prison escape schemes.            The federal government became

interested    in   this    information    and    ordered   Amparo-Concepción

detained to ensure that his testimony would remain available as the

investigation proceeded.          The fact that Amparo-Concepción was

already in a Puerto Rico jail at the time did not logically or

legally enable his federal arrest –- it merely made him easier to

locate.     The material witness warrant could just as easily have

issued on the same application if Amparo-Concepción had been free

on the streets of San Juan; indeed, there was less reason for the

federal court to issue the warrant here because Amparo-Concepción

was already detained by local authorities.             Accordingly, Amparo-

Concepción was not in federal custody "by virtue of" a conviction

of any offense, and his attempted escape from that custody did not

violate § 751(a).

            This   explains      why    the     government's    reliance   on

Derengowski is misplaced.          In Derengowski, the defendant was


                                       -11-
convicted of armed robbery in state court and imprisoned in a state

facility.   404 F.2d at 779.    Two years later, while still in state

custody, he was indicted on federal charges and transferred to

federal    court   for   arraignment.     The   federal    indictment    was

subsequently   dismissed.      While    awaiting   his    return   to   state

custody, the defendant attempted to escape.        Id.    In upholding his

conviction under § 751, the Eighth Circuit emphasized that although

the federal charges had been dismissed before the defendant tried

to escape, the defendant was nevertheless in federal custody "'by

virtue of an arrest on a charge of felony' within the provisions of

§ 751 (i.e., but for defendant's arrest on the federal felony

charges he would never have been in federal custody)."         Id. at 781-

82.   The same simply cannot be said of Amparo-Concepción:               his

Puerto Rico conviction was not a but-for cause of his federal

detention.11

            Moreover, the government's interpretation of § 751 would

require us to conclude that Congress outlawed escapes from material



      11
         The dissent would rely on Derengowski nonetheless,
characterizing the Eighth Circuit's interpretation of the "by
virtue of" language in § 751 as "dicta" and an "alternative
holding."   This objection does not address the merits of our
interpretation of the "by virtue of" clause. Nor does the primary
holding of Derengowski help the dissent. Derengowski held that the
"conviction of any offense" language in § 751 may be satisfied by
state convictions. See 404 F.2d at 781. We do not decide that
question today. See supra note 10. Even assuming that Derengowski
is correct, though, the federal custody must still be "by virtue
of" the state conviction. Nothing in Derengowski obviates that
statutory requirement.

                                  -12-
witness detention by persons transferred from state prison, but not

escapes    from    material      witness    detention     by     persons    otherwise

detained. Such a distinction would not be irrational; we simply do

not find it in the language of the statute.                         Section 751(a)

contains no reference to "transfers" between state and federal

custody.    As the government itself points out, the text of the

statute draws no distinction between state and federal offenses or

convictions.        In    short,    there    is    no   textual     basis    for    the

government's interpretation of § 751(a).

            Absent a textual basis for the government's argument,

concerns for lenity and due process compel us to reject it.                         See

Dowling v. United States, 473 U.S. 207, 214 (1985) ("[W]hen choice

has to be made between two readings of what conduct Congress has

made a crime, it is appropriate, before we choose the harsher

alternative,      to   require     that    Congress      should    have    spoken    in

language that is clear and definite."); see also Bryan v. United

States,    524    U.S.    184,     205    (1998)    (Scalia,      J.,     dissenting)

("[A]mbiguity concerning the ambit of criminal statutes should be

resolved in       favor   of   lenity.").          We   reject    the   government's

argument and hold that § 751(a), by its terms, does not apply to

persons held in federal custody solely by virtue of a material

witness warrant.

            The dissent would grant this conclusion but hold that

Amparo-Concepción was actually in federal custody "by virtue of"


                                          -13-
his Puerto Rico conviction.       The dissent reaches this conclusion

based on an argument never raised by the government:              that but for

his Puerto Rico conviction, Amparo-Concepción would have been

"entitled" to release under 18 U.S.C. § 3142, the statute governing

pretrial release of criminal defendants.           See § 3144 (authorizing

a judicial officer to "order the arrest of [a material witness] and

treat the person in accordance with section 3142 of this title").

Implicit in   this   argument     is    the   assumption   that    if   Amparo-

Concepción had been so released, he would no longer have been in

federal custody within the meaning of § 751.

          We will assume arguendo that § 3142 applies with full

force to material witnesses.       But cf. In re Application of United

States for Material Witness Warrant, 213 F. Supp. 2d 287, 295

(S.D.N.Y. 2002) (noting aspects of § 3142 that are apparently

inapplicable to material witnesses).              Even so, the dissent's

argument is flawed, for several reasons.                First, the factual

premise is wrong.     Nothing in § 3142 would "entitle[]" Amparo-

Concepción to release absent his Puerto Rico conviction.                    The

Supreme Court has expressly rejected the notion that § 3142 offers

a guarantee of release to any defendant.             See United States v.

Montalvo-Murillo, 495 U.S. 711, 720 (1990) ("Automatic release

contravenes   the   object   of   the   statute,   to   provide     fair   bail

procedures while protecting the safety of the public and assuring

the appearance at trial of defendants found likely to flee.").


                                   -14-
Indeed, given that the FBI was interested in Amparo-Concepción

because of   his   knowledge   of   escape    schemes,   the    court   could

conceivably have ordered him detained without bail on the ground

that he presented a risk of flight.        See United States v. Dillon,

938 F.2d 1412, 1416 (1st Cir. 1991) (upholding denial of bail based

on risk of flight); United States v. Nai, 949 F. Supp. 42, 45

(D.Mass. 1996) (material witness may be detained under § 3142 if

government establishes risk of flight by preponderance of the

evidence). Nor is it true that the Puerto Rico conviction required

the district court to order Amparo-Concepción held without bail.

Section 3142 incorporates no such bright-line rule.            In short, the

dissent's conclusion that "[i]t was the Commonwealth's conviction

that retained Amparo-Concepción in federal custody" is hardly a

necessary one.

           Second, the dissent is incorrect to assume that if

Amparo-Concepción had been released under § 3142, he would no

longer have been in federal custody for purposes of § 751.                 See

United States v. Vaughn, 446 F.2d 1317 (D.C. Cir. 1971) (defendant

who fled   while   on   pretrial    release   was   validly    convicted   of

escape); United States v. Keller, 912 F.2d 1058, 1059-61 (9th Cir.

1990) (escape violation occurred when defendant failed to report to

correctional facility to begin his sentence); United States v.

Coggins, 398 F.2d 668 (4th Cir. 1968) (affirming escape conviction

of defendant who failed to return from furlough).


                                    -15-
            Also, even if it were true that Amparo-Concepción's

Puerto Rico conviction ensured that he was denied bail, that does

not   change   the   legal   basis    for   Amparo-Concepción's   federal

detention.     Section 3142 only applies to defendants in federal

custody on some legal basis.     Amparo-Concepción was not in federal

custody because he committed a state offense.         He was in federal

custody because, and only because, he was arrested as a material

witness.    That fact is dispositive of this appeal, because we hold

that § 751 does not apply to persons in federal custody solely on

the basis of § 3144.

             This conclusion is not reached lightly, and we have

carefully considered potential objections to our reading of § 751.

At first blush, perhaps the strongest such objection arises from

the Sentencing Guidelines.       The guideline applicable to escape

offenses, U.S.S.G. § 2P1.1(a), states that the base offense level

for a violation of § 751(a) shall be

      (1)    13, if the custody or confinement is by virtue of
             an arrest on a charge of felony, or conviction of
             any offense;

      (2)    8, otherwise.

The "otherwise" clause could conceivably be read to suggest that

the Sentencing Commission, and derivatively Congress, understood

§ 751 to apply to any and all forms of federal custody, including

material witness detention.      The original text of the guideline

could be said to reinforce this inference:        rather than simply say


                                     -16-
"otherwise," the 1987 text of § 2P1.1(a)(2) explicitly mentioned

escapes "from lawful custody awaiting extradition, pursuant to

designation as a recalcitrant witness or as a result of a lawful

arrest for a misdemeanor." U.S.S.G. § 2P.1.1(a)(2) (1987) (amended

1989)      (emphasis     added).     As    Rosa-Ortiz's      counsel   argued   at

sentencing, material witness detention is similar to recalcitrant

witness detention.12          The guideline anticipated punishment for the

latter,      so   the    question   is    whether    that    fact   suggests    the

Sentencing Commission and Congress understood § 751 to reach the

former.

              The answer is no.      The recalcitrant witness statute, 28

U.S.C. § 1826, deserved mention in the original version of § 2P1.1

not   because     §     751   punishes    escape    from   recalcitrant   witness

detention, but because another statute does: § 1826 defines its own

crime of escape.         See § 1826(c) (escape from recalcitrant witness

detention punishable by up to three years in prison); see also

U.S.S.G. App. A (designating § 2P1.1 as the guideline applicable to

convictions under 28 U.S.C. § 1826(c)).                    Section 1826(c) also

proscribes escape from confinement pursuant to 18 U.S.C. § 4243,

which authorizes involuntary hospitalization pursuant to a judgment


      12
       A recalcitrant witness is a witness before any federal court
or grand jury who refuses, without just cause shown, to comply with
an order to testify or produce documents or other information. See
28 U.S.C. § 1826(a). A material witness, by contrast, is a person
whose testimony is material to a criminal proceeding and whose
presence at the proceeding cannot practicably be secured by
subpoena. See 18 U.S.C. § 3144.

                                          -17-
of not guilty by reason of insanity.         This not only explains why

the Sentencing Guidelines anticipate escape offenses from "other[]"

species of federal detention,13 but also underscores our conclusion

regarding the relationship between § 751(a) and the material

witness statute.      Congress, it is evident, has corrected potential

deficiencies in the scope of § 751(a) by enacting other statutes to

prohibit escape from particular categories of federal custody. Yet

none of these statutes addresses escape from material witness

detention, and the material witness statute itself lacks an escape

prohibition analogous to § 1826(c).        See § 3144.    This is not the

first time that a gap has been identified in the sweep of § 751.

See 134 Cong. Rec. S17360, S17370 (Nov. 10, 1988) (acknowledging,

in amending § 751(a) to proscribe escape from detention pending

deportation or extradition, that the original failure of the

statute to prohibit such conduct was an "apparent oversight" and a

"seemingly inadvertent omission").

           We   are    certain   that   Congress   did   not   intend   that

attempted escapes by material witnesses in federal custody should

bear no consequences.     The government stated at oral argument that

the defendants' conduct may at least constitute obstruction of

justice.   See 18 U.S.C. § 1503(a).         But that was not the crime

charged here. For whatever reason, the government chose instead to


     13
       Of course, the "otherwise" clause in U.S.S.G. § 2P1.1(a)(2)
also governs sentencing in prosecutions under the misdemeanor
escape provisions of § 751(a). See supra note 7.

                                   -18-
charge a conspiracy to violate § 751(a).             The plain text of that

statute does not support the indictment in this case, and "due

process    bars   courts   from   applying   a     novel   construction   of   a

criminal statute to conduct that neither the statute nor any prior

judicial decision has fairly disclosed to be within its scope."

United States v. Lanier, 520 U.S. 259, 266 (1997).                Rosa-Ortiz's

conviction cannot stand.

            Before concluding, we will comment on one theme raised by

the defense.       Rosa-Ortiz points out that the language of the

indictment effectively obscured the existence of the legal issue we

have just resolved.        The indictment charged that Rosa-Ortiz and

others "conspired to obtain the unlawful release of MAXIMILIANO

AMPARO-CONCEPCIÓN, who was lawfully confined at the direction of

the Attorney General by virtue of a court order issued on December

7, 2000 by the United States District Court for the District of

Puerto Rico . . . at which time [Amparo-Concepción] was serving a

sentence for a felony conviction of the Commonwealth of Puerto

Rico."    The indictment does not mention that the "court order" in

question was a material witness warrant, and its phrasing arguably

encourages the erroneous inference that Amparo-Concepción's federal

detention was related to his Puerto Rico felony conviction.                    If

this was purposeful obfuscation to hide potential defects in the

indictment, we would have significant concerns.               But we are not

prepared    to    conclude,   without      more,    that    the   government's


                                    -19-
circumlocution was purposefully done to hide the issue. Though the

§ 751(a) issue was obscured on the face of the indictment, defense

counsel informed the court both at the change of plea hearing and

at sentencing that Amparo-Concepción was in federal custody only

pursuant    to   a   material    witness    warrant.        Regrettably,    the

prosecutor did not disclose this fact to the court; she merely did

not deny defense counsel's assertion.             Still, during the trial

stage of this case neither defense counsel nor the court noticed

the issue we have just resolved, and the same may have been true of

the government.      Nonetheless, the form of the indictment was, at

best, unfortunate: this appeal might never had occurred had the

government paid closer attention to this issue from the outset.

                                     III.

            For these reasons, we conclude that 18 U.S.C. § 751(a)

does not prohibit attempted escapes from detention under 18 U.S.C.

§   3144.    Rosa-Ortiz's       guilty   plea   must   be   vacated   and   the

indictment must be dismissed.        So ordered.



                      Dissenting opinion follows.




                                     -20-
              SILER,    Circuit   Judge    (dissenting).         I   respectfully

dissent.      I would uphold the conviction of Rosa-Ortiz because he

pleaded guilty to conspiracy to violate 18 U.S.C. § 751(a), which

is a federal offense under the language of the indictment.

              The co-defendant, Amparo-Concepción, was imprisoned by

the Commonwealth of Puerto Rico for a felony offense.                     Thus, his

confinement was “by virtue of [a] conviction of [an] offense,” 18

U.S.C.    §   751(a),    even   though    it   was   not    a   federal    offense.

Certainly, he was in federal custody pursuant to a material witness

warrant under 18 U.S.C. § 3144.           However, if there had not been the

underlying Commonwealth conviction and custody, Amparo-Concepción

would have been entitled to possible release pursuant to 18 U.S.C.

§ 3142. It was the Commonwealth’s conviction that retained Amparo-

Concepción in federal custody.

              I would follow the decision in Derengowski v. United

States, 404 F.2d 778, 781 (8th Cir. 1968), that “any offense under

§   751   includes      state   offenses.”       Like      Derengowski,     Amparo-

Concepción’s custody was “by virtue of his conviction of any

offense.” The majority opinion emphasizes the dicta or alternative

holding in Derengowski that his custody was by virtue of an arrest

on a charge of a felony.          He was in federal custody pursuant to a

writ of habeas corpus ad prosequendum to answer charges in federal

court.     However, before he escaped, the federal charges had been




                                      -21-
dismissed.   Nevertheless, that alternative holding is dictum that

need not govern our resolution of this issue.

           I agree with the majority that the material witness

warrant   could   just   as   easily   have   been   issued   on   the   same

application if Amparo-Concepción had been free on the streets.             In

that case, his escape could not have been prosecuted in violation

of § 751, because there was no underlying offense.            Our situation

is obviously different.       I would affirm the conviction below for

these reasons stated.




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