                    FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                        No. 16-30143
                  Plaintiff-Appellee,
                                                    D.C. No.
                     v.                          2:16-cr-00019-
                                                      JLQ
 BUD RAY BROWN,
             Defendant-Appellant.                   OPINION



        Appeal from the United States District Court
           for the Eastern District of Washington
  Justin L. Quackenbush, Senior District Judge, Presiding

           Argued and Submitted October 3, 2017
                   Seattle, Washington

                   Filed November 21, 2017

   Before: Kermit Victor Lipez, * Kim McLane Wardlaw,
            and John B. Owens, Circuit Judges.

                    Opinion by Judge Lipez




     *
       The Honorable Kermit V. Lipez, United States Circuit Judge for
the First Circuit, sitting by designation.
2                  UNITED STATES V. BROWN

                          SUMMARY **


                          Criminal Law

    The 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).

    The 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 prosecutorial vindictiveness.

    The 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.

    The 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
jurisdiction.


    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                  UNITED STATES V. BROWN                       3

    The 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.


                         COUNSEL

Bryan Paul Whitaker (argued), Spokane, Washington, for
Defendant-Appellant.

Russell E. Smoot (argued), Assistant United States Attorney,
United States Attorney’s Office, Spokane, Washington, for
Plaintiff-Appellee.


                          OPINION

LIPEZ, Circuit Judge:

     For the 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 Attorney General for
purposes of § 751(a) despite his incarceration at a state-run
jail, and affirm the judgment of the district court in full.
4                UNITED STATES V. BROWN

                             I.

    In July 2013, Brown was sentenced to a fifteen-year term
of incarceration after pleading guilty to the possession of a
firearm in violation of 18 U.S.C. § 922(g)(1)&(2). Brown
was initially incarcerated at a federal penitentiary in
Virginia. In July 2014, the State of Washington obtained a
writ of habeas corpus ad prosequendum, seeking Brown’s
transfer so that he could face a first degree murder charge.
Brown was thereafter moved to the Spokane County Jail. On
August 20, 2015, persons outside of the jail observed a rope
hanging from the window of Brown’s cell. Someone had
removed the cell’s window and thrown various items out of
the opening. Brown shared his cell with another inmate,
James Henrikson, who was awaiting trial on federal charges.
Neither Brown nor Henrikson were immediately charged
with attempted escape for this conduct.

    In December 2015, during Henrikson’s trial, the
government moved to admit the August escape attempt as
evidence of Henrikson’s guilty conscience. In response,
Henrikson’s counsel introduced a handwritten declaration
by Brown stating that Brown, not Henrikson, “had been
plotting an escape for some time,” and that Brown was the
one responsible for causing damage to the cell window. In
February 2016, Brown was indicted in the Eastern District
of Washington on the charge of attempted escape, in
violation of 18 U.S.C. § 751(a).

    Brown moved to dismiss the indictment for lack of
jurisdiction or, in the alternative, for prosecutorial
vindictiveness. Brown’s jurisdictional claim asserted that he
was not in federal custody at the time of the attempted
escape. Therefore, the government could not charge him
under 18 U.S.C. § 751(a).           Brown’s prosecutorial
vindictiveness claim argued that the timing of the
                 UNITED STATES V. BROWN                      5

indictment—filed approximately five months after the
attempted escape and only after Brown’s declaration was
introduced in Henrikson’s trial—created a presumption of
prosecutorial vindictiveness. On April 1, 2016, the district
court denied the motion and, immediately thereafter, Brown
entered a guilty plea without a written plea agreement.
Brown was later sentenced to 41 months’ imprisonment, to
run consecutively with his existing federal sentence. Brown
timely filed a Notice of Appeal, challenging the district
court’s adverse ruling on his pretrial motion to dismiss.

                              II.

A. Preclusion

    As a threshold inquiry, we must first determine whether
Brown’s guilty plea precludes us from considering the merits
of his appeal. The entry of an unconditional guilty plea
precludes appellate review of most challenges to pre-plea
rulings. See United States v. Jacobo Castillo, 496 F.3d 947,
954 (9th Cir. 2007) (en banc) (collecting cases). Here,
Brown’s plea, entered without a written plea agreement or
other memorialization of reservations, was unconditional.
See Fed. R. Crim. P. 11(a)(2) (stating that, to enter a
conditional plea, a defendant must reserve in writing “the
right to have an appellate court review an adverse
determination of a specified pretrial motion”). We “strictly”
read the requirements of Rule 11(a)(2). United States v.
Cortez, 973 F.2d 764, 766 (9th Cir. 1992).

     An unconditional plea does not, however, bar
consideration of the merits of all claims arising from pre-
plea rulings. We may still consider “jurisdictional claims,”
i.e., those challenging a conviction independently of the
question of factual guilt. See id. at 766‒67 (“A plea of guilty
to a charge does not waive a claim that the charge is one
6                    UNITED STATES V. BROWN

which the government constitutionally may not prosecute.”);
see also Menna v. New York, 423 U.S. 61, 62 n.2 (1975) (per
curiam).       Both of Brown’s challenges qualify as
jurisdictional claims. The Supreme Court held in Blackledge
v. Perry that the merits of a vindictive prosecution claim are
reviewable even after entry of an unconditional plea because
the defendant is contending that “the very initiation of the
proceedings against him” constitute a denial of the due
process of law. 417 U.S. 21, 30–31 (1974); see also United
States v. Garcia-Valenzuela, 232 F.3d 1003, 1005–06 (9th
Cir. 2000). Likewise, Brown’s claim involving the legal
status 1 of his custody challenges the government’s power to
bring the indictment “at the time the plea was entered on the
basis of the existing record.” United States v. Broce,
488 U.S. 563, 575 (1989). If Brown’s confinement did not
qualify as federal custody, the government would have had
no grounds from the outset to hail him into court pursuant to
18 U.S.C. § 751(a). Accordingly, we consider the merits of
each of these claims in turn. 2


    1
      Repeatedly characterizing the question of federal custody as a
dispute of fact, the government argues that the claim should be treated
as an evidentiary challenge. The government misunderstands the
relevant issue. None of the facts concerning Brown’s custody—why was
Brown imprisoned, where was Brown incarcerated, on what basis was
he incarcerated at that location—are in dispute. Rather the question is
purely legal: given the undisputed facts of Brown’s custody, does such
custody qualify as “custody of the Attorney General” as per 18 U.S.C.
§ 751(a)?

    2
      Other claims previously classified as jurisdictional include: double
jeopardy, Menna, 423 U.S. at 62; the district court’s lack of power to
keep a defendant in court, Garcia-Valenzuela, 232 F.3d at 1007;
unconstitutional vagueness, United States v. Sandsness, 988 F.2d 970,
971 (9th Cir. 1993); failure of the indictment to properly state an offense,
United States v. Broncheau, 597 F.2d 1260, 1262–63 (9th Cir. 1979);
                  UNITED STATES V. BROWN                          7

B. Legal Custody Status

    Brown asserts that he was improperly charged with
attempted escape under 18 U.S.C. § 751(a) because he was
not in federal custody at the time of the events in question.
Section 751(a) applies, in part, to individuals who “escape[]
or attempt[] to escape from the custody of the Attorney
General or his authorized representative.” 18 U.S.C.
§ 751(a). Brown argues that, even though he was serving a
sentence imposed by a federal judgment, he was incarcerated
at the Spokane County Jail pursuant to a writ of habeas
corpus ad prosequendum in order to answer state criminal
charges.

    We have not previously addressed this precise legal
question: does “custody of the Attorney General” for
purposes of § 751(a) continue when a federal prisoner is held
at a state prison pursuant to a writ of habeas corpus ad
prosequendum? We have, however, previously decided that
a prisoner’s prior custody status persists in the inverse
scenario: when a state prisoner is transferred to a federal
detention facility pursuant to a writ of habeas corpus ad
prosequendum. In Thomas v. Brewer, we held that “[w]hen
an accused is transferred pursuant to a writ of habeas corpus
ad prosequendum he is considered to be ‘on loan’ to the
federal authorities so that the sending state’s jurisdiction
over the accused continues uninterruptedly.” 923 F.2d 1361,
1367 (9th Cir. 1991) (quoting Crawford v. Jackson, 589 F.2d
693, 695 (D.C. Cir. 1978)). We see no basis for
distinguishing between the state and federal custody analysis
in these two scenarios.


and unconstitutionality of the statute under which the defendant was
indicted, Journigan v. Duffy, 552 F.2d 283, 289 (9th Cir. 1977).
8                   UNITED STATES V. BROWN

    Moreover, we have previously concluded in the related
context of 18 U.S.C. § 1072 that a federal prisoner housed in
a designated state facility remains in federal custody as a
matter of law. See United States v. Hobson, 519 F.2d 765,
771 (9th Cir. 1975). Section 1072 makes it unlawful to
“willfully harbor[] or conceal[] any prisoner after his escape
from the custody of the Attorney General or from a Federal
penal or correctional institution.” 18 U.S.C. § 1072. We
held in Hobson that “escape from an institution designated
by the Attorney General, pursuant to a commitment to his
custody, under a federal sentence, is an escape from ‘the
custody of the Attorney General’ in the legal sense, even
though the institution is run by the State.” 519 F.2d at 771;
see also United States v. Eaglin, 571 F.2d 1069, 1073 (9th
Cir. 1977). Based on the similarity in subject matter between
§ 751(a) and § 1072, as well as the identical use of the phrase
“custody of the Attorney General” in both statutes, we
adhere to a consistent interpretation of “custody.”

    Hence, the district court did not err in denying Brown’s
motion to dismiss on the ground that Brown was in federal
custody as a matter of law pursuant to § 751(a). 3




    3
      In concluding 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, we join the interpretations of
the Fourth and Seventh Circuits. See United States v. Maday, 799 F.3d
776, 777 (7th Cir. 2015) (transferring a federal inmate “by virtue of a
writ of habeas corpus ad prosequendum” retains enough federal interest
“to justify charging him with escaping from federal custody even though
the actual custodians from whom he escaped were state employees”);
United States v. Evans, 159 F.3d 908, 911 (4th Cir. 1998) (“a writ of
habeas corpus ad prosequendum does not effect a transfer of custody for
purposes of § 751(a) ”).
                 UNITED STATES V. BROWN                      9

C. Prosecutorial Vindictiveness

    Brown also contends that the district court erred in
denying his motion to dismiss on the ground that the
indictment was brought due to prosecutorial vindictiveness.
To the extent the “vindictive prosecution inquiry turns upon
a district court’s proper application of the law, our review is
de novo.” United States v. Kent, 649 F.3d 906, 912 (9th Cir.
2011). To the extent a determination of vindictive
prosecution turns upon factual findings, we review for clear
error. Id.

    Although Brown may establish a vindictive prosecution
claim “by producing direct evidence of the prosecutor’s
punitive motivation,” such evidence is not necessary. United
States v. Jenkins, 504 F.3d 694, 699 (9th Cir. 2007).
Without direct evidence, Brown may still establish a
prosecutorial vindictiveness claim by following a burden
shifting framework. To do so, Brown must first create a
“presumption of vindictiveness.”        Id.    A rebuttable
presumption of vindictiveness is created “by showing that
the circumstances establish a ‘reasonable likelihood of
vindictiveness.’” Kent, 649 F.3d at 912–13 (quoting United
States v. Goodwin, 457 U.S. 368, 373 (1982)); see also
United States v. Gallegos-Curiel, 681 F.2d 1164, 1169 (9th
Cir. 1982). If Brown does that, the burden shifts to the
government to present “objective evidence justifying the
prosecutor’s action.” Goodwin, 457 U.S. at 376 n.8.

    Lacking any direct evidence of punitive motive, Brown
avers that the timing of the indictment—filed approximately
five months after the attempted escape and only after
Brown’s declaration was introduced at Henrikson’s trial—
satisfies his burden of creating a presumption of
vindictiveness. The timing of the indictment alone,
however, is insufficient. See Gallegos-Curiel, 681 F.2d at
10                 UNITED STATES V. BROWN

1168 (stating that “the link of vindictiveness cannot be
inferred simply because the prosecutor’s actions followed
the exercise of a right”). 4 Particularly when a vindictiveness
claim pertains to pretrial charging decisions, the Supreme
Court urges deference to the prosecutor. See Kent, 649 F.3d
at 913 (citing Goodwin, 457 U.S. at 381). Deference is
appropriate for pretrial charging decisions because, “in the
course of preparing a case for trial, the prosecutor may
uncover additional information that suggests a basis for
further prosecution.” Goodwin, 457 U.S. at 381. Brown
offers no support for the proposition that the government had
sufficient evidence to prosecute him for attempted escape
prior to the submission of his written declaration in the
Henrikson trial. Cf. Jenkins, 504 F.3d at 700. Hence, the
mere fact that the government subsequently decided to indict
Brown after obtaining his written declaration does not create
a presumption of vindictiveness.

   Accordingly, the district court did not err in denying
Brown’s motion to dismiss on prosecutorial vindictiveness
grounds.

     AFFIRMED.




     4
      Appellant also fails to explain why the decision of Henrikson’s
defense counsel to submit to the court Brown’s previously written
declaration should be treated as an “exercise of a right” by Brown.
