                                            PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   _____________

                       No. 13-4296
                      _____________

             UNITED STATES OF AMERICA

                             v.

                KEVIN WILLIAM SMALL,

                                      Appellant
                      _____________

      On Appeal from the United States District Court
          for the Middle District of Pennsylvania
                  (No. 1-12-cr-00067-001)
          District Judge: Hon. Gene E.K. Pratter

                 Argued: October 1, 2014
                     ____________

 Before: AMBRO, CHAGARES, and VANASKIE, Circuit
                    Judges.

                   (Filed: July 13, 2015)

Eleni Kousoulis, Esq. [ARGUED]
Tieffa N. Harper, Esq.
Office of Federal Public Defender
800 King Street, Suite 200
Wilmington, DE 19801
       Attorneys for Appellant

Peter J. Smith
Christy H. Fawcett, Esq. [ARGUED]
Office of United States Attorney
228 Walnut Street, Suite 220
Harrisburg, PA 17108
       Attorney for Appellee

                        ____________

                          OPINION
                        ____________

CHAGARES, Circuit Judge.

        Kevin William Small was convicted of tax fraud in
federal district court while he still had time left to serve on a
Pennsylvania state prison sentence. He arranged for a forged
court order purporting to vacate his federal sentence to be
presented to Pennsylvania state prison officials and, as a
result, was released at the end of his state sentence rather than
turned over to federal officials to begin serving his federal
sentence. This case presents the question of whether Small
thereby escaped from “custody” within the meaning of the
federal escape statute, 18 U.S.C. § 751. We hold that he did,
and we will affirm the judgment of the District Court.


                               I.

       On October 5, 2007, Small was sentenced by a federal
court to 135 months of imprisonment for filing false tax
returns. He was serving a separate sentence in Pennsylvania
state prison at that time, and the District Court ruled that his
federal sentence was to be served consecutive to his state
sentence.     After sentencing, he was returned to the
Pennsylvania State Correctional Institution at Huntingdon
(“Huntingdon”) to serve the remainder of his state sentence.
The U.S. Marshal subsequently served the Commonwealth
Department of Corrections with a document entitled
“Detainer Based on Federal Judgment and Commitment,”
which governed Small’s transfer to federal authorities upon
completion of his state sentence.

        In October 2011, the records staff at Huntingdon
received documents in the mail, ostensibly from the Clerk of
Court for the United States District Court for the Middle
District of Pennsylvania, but which in reality were forgeries
sent at Small’s direction. The documents appeared to bear the

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Clerk’s signature and directed the entry of an accompanying
order, supposedly issued by the District Court, vacating
Small’s federal conviction and sentence. The order appeared
to have been signed by Judge Christopher C. Conner and to
bear the District Court’s official seal. The officials at
Huntingdon accepted the papers, and Small was released
upon the completion of his state sentence in January 2012,
unbeknownst to federal authorities. In March 2012, a federal
agent learned of Small’s release from Huntingdon and his
failure to begin his federal sentence. Federal agents quickly
located and arrested Small.

       Small was indicted and charged with several crimes:
forging the signature of a United States judge, forging a seal
of a United States agency, mail fraud, conspiracy, and, the
only relevant crime for our purposes, escape. Small filed a
motion to dismiss the escape charge on the ground that he
was never in federal custody, a requisite element of the crime.
His motion was denied by the District Court on April 30,
2013. He subsequently entered an “open plea” of guilty to all
counts and was sentenced to a term of 60 months of
imprisonment on each count, to be served concurrently with
one another but consecutively to his tax fraud sentence.
Small timely appealed.

                              II.

        The District Court had jurisdiction pursuant to 18
U.S.C. § 3231, and we have jurisdiction pursuant to 28 U.S.C.
§ 1291.

       We “apply a mixed standard of review to a district
court’s decision on a motion to dismiss an indictment,
exercising plenary review over legal conclusions and clear
error review over factual findings.” United States v. Stock,
728 F.3d 287, 291 (3d Cir. 2013).

                             III.

       Small raises two arguments on appeal: first, that he
may challenge the sufficiency of Count III of the superseding
indictment despite his unconditional guilty plea, and, second,


                              3
that Count III of the superseding indictment is insufficient on
its face.

       As a threshold matter, Small is correct that he may
challenge the sufficiency of his indictment, and the
Government does not argue otherwise. However, Small’s
arguments regarding the sufficiency of the indictment are
unavailing.

                              A.

       Former Federal Rule of Criminal Procedure
12(b)(3)(B), in effect when this case was briefed and argued,1
provided that “at any time while the case is pending, the court
may hear a claim that the indictment or information fails to
invoke the court’s jurisdiction or to state an offense.” Even
when a defendant enters an unconditional guilty plea, Rule
12(b)(3)(B) permits the defendant “to challenge for the first
time on appeal the sufficiency of his superseding indictment.”
United States v. Hedaithy, 392 F.3d 580, 589 (3d Cir. 2004).
The Government does not dispute that Small may challenge
the sufficiency of the indictment at this stage. Accordingly,
we consider Small’s appeal on the merits.

                              B.

                               1.

        Small argues that the Government’s indictment was
insufficient to make out a violation of the escape statute, 18
U.S.C. § 751, either because it incorrectly stated the basis for
Small’s state custody or because neither the federal detainer
nor the District Court’s judgment of conviction and sentence
satisfied the custodial requirement of the statute. To be
sufficient, an indictment must allege that the defendant
performed acts which, if proven, constitute a violation of the

1
  The Rule has since been amended, with the amendments
taking effect on December 1, 2014. See Order of the United
States Supreme Court Amending the Federal Rules of
Criminal Procedure (April 25, 2014), available at
http://www.supremecourt.gov/orders/courtorders/frcr14_khlo.
pdf.
                               4
law that he is charged with violating. See Hedaithy, 392 F.3d
at 589. In this case, the statute provides:

             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 not more than five
             years, or both . . . .

18 U.S.C. § 751(a). The Government meets its burden of
proving a violation of the statute by establishing that the
defendant “absent[ed]” himself “from custody without
permission.” United States v. Bailey, 444 U.S. 394, 407
(1980). This case presents the question of whether Small was
ever in “custody” within the meaning of the statute.

        On its face, the statute requires the Government to
demonstrate that one of the following was true at the time of
escape: (1) the defendant was in the custody of the Attorney
General or an authorized representative; (2) the defendant
was confined in an institution at the direction of the Attorney
General; (3) the defendant was in custody by virtue of any
process issued under the laws of the United States by any
court, judge, or magistrate judge; or (4) the defendant was in
the custody of an officer or employee of the United States
pursuant to a lawful arrest. See 18 U.S.C. § 751(a). Other
Courts of Appeals have also applied this straightforward
reading of the statute. See, e.g., United States v. Gowdy, 628

                              5
F.3d 1265, 1267 (11th Cir. 2010); United States v. Evans, 159
F.3d 908, 910 (4th Cir. 1998).

        This case implicates the third prong — that the
defendant was in custody “by virtue of any process issued
under the laws of the United States by any court, judge, or
magistrate judge.” 18 U.S.C. § 751(a). At oral argument, the
Government argued that the predicate “process issued” it
relies upon is the District Court’s judgment of conviction and
sentence, not the federal detainer lodged with officials at
Huntingdon. Of course, because of the means by which
Small effected his escape, he was never in the physical
custody of the federal government or its agents. The statute,
however, specifies many forms of restraint from which a
person may escape, including from an “institution,” from
“custody . . . by virtue of . . . process,” or from “custody . . .
pursuant to lawful arrest.” Id. Although it does not define
the word “custody,” we believe the various kinds of restraints
enumerated indicate Congress’s intent that the statute be
applied broadly to those who would avoid a sentence they are
required by law to serve. A reading of the statute that limits
“custody” to physical restraint would also read the word
“confinement” out of the portion of the statute specifying the
penalty for its violation. See id. (“Whoever escapes . . . shall,
if the custody or confinement is by virtue of arrest on a
charge of felony [be sentenced.]” (emphasis added)). Thus,
we agree with other Courts of Appeals that have held that
“custody does not require ‘direct physical restraint’ and may
be ‘minimal’ or ‘constructive.’” Gowdy, 628 F.3d at 1267
(quoting United States v. Depew, 977 F.2d 1412, 1414 (10th
Cir. 1992)); see also United States v. Keller, 912 F.2d 1058,
1059 (9th Cir. 1990); United States v. Cluck, 542 F.2d 728,
731 (8th Cir. 1976).2


2
  As the Court of Appeals for the Eleventh Circuit has noted,
in 2006 and 2007 nearly forty percent of escape crimes
involved “failures to report or return,” where the defendant
simply did not show up to begin serving a sentence or failed
to return from an authorized period of absence and therefore
was not in physical custody at the time of escape. Gowdy,
628 F.3d at 1268 (citing Chambers v. United States, 555 U.S.
122, 129 (2009)).
                                6
        The Court of Appeals in Gowdy faced facts nearly
identical to those presented by this appeal, except that the
defendant in that case was arguably less culpable than Small.
In Gowdy, the defendant was supposed to serve a federal
sentence after two state sentences ended, one in Mississippi
and one in Alabama. Gowdy, 628 F.3d at 1266. At some
point, officials in Mississippi lost Gowdy’s federal detainer
and thus failed to transfer it to the Alabama correctional
officials. Id. Gowdy was released upon completion of his
Alabama state sentence and was later charged with escape
once federal officials realized the error. Id. at 166–67.

       The Gowdy court upheld his conviction, holding that
“the custodial requirement of § 751(a) is satisfied where a
lawful judgment of conviction has been issued by a court
against the defendant.” Id. at 1268. Other Courts of Appeals
have similarly held that the elements of escape are established
in the analogous situation where a defendant fails to report to
begin a sentence. See, e.g., United States v. Hart, 578 F.3d
674, 681 (7th Cir. 2009) (holding that “[i]t is clear from our
cases that the [escape] statute prohibits not only escapes from
secure custody, but also walkaways from nonsecure custody
and failures to report at the end of an authorized period of
freedom”); United States v. Keller, 912 F.2d 1058, 1059–60
(9th Cir. 1990) (holding that the defendant’s failure to report
to a place of confinement at an appointed date and time
qualified as an escape from federal custody).

       Small argues that the Gowdy court’s definition of
custody was too broad and that we should not follow it. We
are unpersuaded. As the court there pointed out, the purpose
of § 751(a) is “to protect the public from the danger
associated with federal criminals remaining at large.”
Gowdy, 628 F.3d at 1268. An interpretation of the term
“custody” that includes individuals subject to federal
judgments of conviction advances that purpose, as those who
are convicted but never physically transferred to federal
custody are “federal criminals remaining at large.”

      Small attempts to distinguish the cases upon which the
Gowdy court relied by noting that in many of those cases the
defendants had been, at some point, in “direct physical
custody.” Small Br. 23. However, Small fails to explain why

                              7
this distinction makes a difference or to what extent it should
inform our analysis of a different part of the statute, which
does not require direct physical custody at any point by the
Attorney General or her agents. Indeed, Small’s proposed
interpretation of the statute would essentially read out the
section criminalizing escape from “custody . . . by virtue of
any process issued under the laws of the United States by any
court, judge, or magistrate judge.” 18 U.S.C. § 751(a). That
clause of the statute has no “direct” custody requirement.
And, as the Court of Appeals for the Tenth Circuit recently
reaffirmed, “escape charges are not limited to defendants who
were previously in the custody of the Attorney General.”
United States v. Foster, 754 F.3d 1186, 1190 (10th Cir. 2014).
Constructive custody under that provision of the statute is
established simply by virtue of the process issued by the
judge, in this case the judgment of conviction entered by the
District Court.

        In sum, we hold that the custodial requirement is
satisfied if a lawful judgment of conviction has been issued
by a federal court against the defendant. As Small does not
dispute that he was lawfully convicted and sentenced in 2007
for filing false tax returns, that conviction is sufficient
“process” under the statute to have placed him in the
constructive custody of the federal government on completion
of his state sentence such that his actions to avoid serving his
federal sentence constitute the crime of escape.

                               2.

        Small also argues that the language of the indictment is
contradictory and fails to support the Government’s
contention that Small was in federal custody. Count I of the
indictment states that “Huntingdon State Prison officials
released the defendant . . . upon the expiration of his state
sentence rather than relinquishing him to the custody of the
Attorney General of the United States to serve his federal
sentence.” Appendix (“App.”) 36. Count III states that Small
was held in Huntingdon “by virtue of a judgment and
commitment of the United States District Court . . . and a U.S.
Marshal’s detainer lodged in conjunction with the judgment
and conviction.” App. 38. Small’s contention is that Count I
on its face concedes that he was never in federal custody, as it

                               8
indicates that the state prison released him “rather than”
relinquishing him to the custody of the Attorney General.

        Small’s argument fails. While it is correct that the first
count of the indictment indicates that there was a failure to
relinquish Small to the custody of the Attorney General, it is
plausible from the context that this portion of the indictment
refers to physical custody, which, as explained above, is only
one possible basis for custody under the statute. Count I
makes no claim, one way or the other, about the constructive
basis of Small’s custody pursuant to the federal court’s
judgment of conviction. And though the statute includes
“escape from the custody of the Attorney General or his
authorized representative,” the true basis of the charge against
Small was an escape “from any custody under or by virtue of
any process issued under the laws of the United States by any
court, judge, or magistrate.” 18 U.S.C. §751(a). Count III
makes this clear by specifically mentioning that Small was
subject to a “judgment and commitment of the United States
District Court.” App. 38. Absent Small’s artifice, the state
prison would have continued to hold him, pursuant to the
District Court’s order, until he was transferred to the physical
custody of federal agents. Thus, while the wording of Count I
may not have been ideal, it does not foreclose Small’s
conviction for escape under Count III of the indictment.

                               IV.

      For the foregoing reasons, we will affirm the District
Court’s judgment of conviction.




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