
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-1207                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                ANTHONY S. DESTEFANO,                                Defendant, Appellant.                              __________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                              __________________________                                        Before                                Selya, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                              __________________________               Walter  F. McKee,  with whom  Lipman and  Katz, P.A.  was on               ________________              ______________________          brief, for appellant.               Helene  Kazanjian,  Assistant United  States  Attorney, with               _________________          whom Jay  P. McCloskey, United  States Attorney, and  Jonathan R.               _________________                                ___________          Chapman, Assistant United States Attorney, were on brief, for the          _______          United States.                              __________________________                                    July 12, 1995                              __________________________                     SELYA, Circuit  Judge.   A  jury in  the United  States                    SELYA, Circuit  Judge.                           ______________          District Court for the District  of Maine found appellant guilty,          inter  alia, of assisting  an escape in violation  of 18 U.S.C.            _____  ____          752(a).1  Appellant says  that the district court shunned  a jury          instruction crucial to his  defense.  Discerning no error  in the          lower court's eschewal of the requested instruction, we affirm.          I.  BACKGROUND          I.  BACKGROUND                    Following  Philip DeStefano's arrest  and indictment on          federal narcotics charges, the government  housed him at a county          jail.    DeStefano  contacted  his  younger  brother,  defendant-          appellant  Anthony S.  DeStefano, and  solicited assistance  in a          contemplated escape.   He  told appellant to  park his  van at  a          specific  location at  a specific  time, and  await developments.          Appellant agreed.                    At approximately 8:30 p.m. on September 8, 1994, Philip          DeStefano bolted.   After another  prisoner boosted  him over  an          interior  fence, he  scaled an  exterior  fence topped  by barbed          wire, took his leave  of the jailhouse grounds, and  followed the                                        ____________________               1The statute of conviction provides in pertinent part:                    Whoever  rescues or  attempts  to  rescue  or                    instigates,  aids or  assists  the escape  or                    attempt to  escape,  of any  person  arrested                    upon a warrant or  other process issued under                    any law of the United States, or committed to                    the custody of the Attorney General or to any                    institution  or  facility  by his  direction,                    shall, if the  custody or  confinement is  by                    virtue of an arrest on a charge of felony, or                    conviction  of any  offense, be  [punished as                    provided by law].          18 U.S.C.   752(a) (1988).                                          2          railroad tracks for a short distance.  As he travelled along  the          tracks, he  spotted officers  conversing casually near  the jail.          Realizing  that the guards had not  yet discovered his departure,          he discarded his distinctively colored prison shirt and sauntered          across a parking  lot to appellant's van.  The  two brothers then          drove toward friendlier climes.                    The  authorities   became  aware   of  the  escape   at          approximately 11:30 p.m.   By then, the DeStefano brothers  had a          three-hour head start.  Several  days later, lawmen captured them          in  New  York.     Federal  prosecutors  charged  appellant  with          assisting an escape in  violation of 18 U.S.C.   752(a)  and with          concealing  an escaped  prisoner  in violation  of the  harboring          statute, 18 U.S.C.   1072.2                    We  omit   any  exegetic  account  of  the  intervening          proceedings  and  cut  directly  to  the  heart  of  the  appeal.          Appellant pleaded not guilty and stood trial.  At trial's end, he          requested the following jury instruction:                    When the physical control has ended by flight                    beyond immediate active  pursuit, the  escape                    is  complete.   Any  assistance  beyond  this                    point is not aiding and abetting.          The  district  court refused  to  give this  instruction  in haec                                                                       ____                                        ____________________               2The harboring statute provides:                         Whoever  willfully  harbors or  conceals                    any   prisoner  after  his  escape  from  the                    custody  of  the Attorney  General or  from a                    Federal  penal  or correctional  institution,                    shall  be  imprisoned  not  more  than  three                    years.          18 U.S.C.   1072 (1988).                                          3          verba, instead telling the jury that:          _____                    The crime  of aiding  or assisting  an escape                    cannot  occur  after   the  escapee   reaches                    temporary  safety.     After  that,   aid  or                    assistance to  a fugitive is no longer aiding                    or  assisting  his escape,  whatever  else it                    might be.          Appellant took a  timeous objection  to the charge,  see Fed.  R.                                                               ___          Crim. P. 30, on the  ground that the court should have  given the          "flight  beyond immediate active  pursuit" instruction,  and that          its failure to do so undermined the defense.                    The  jury  found   appellant  guilty  on   both  counts          (assisting  an  escape  and  harboring an  escapee).    Following          imposition  of sentence,  appellant  perfected this  appeal.   He          challenges only his conviction under 18 U.S.C.   752(a).          II.  DISCUSSION          II.  DISCUSSION                    This  is a rifle-shot appeal  that draws a  bead on the          district court's refusal to  embrace the "flight beyond immediate          active pursuit" instruction.  The standard of review is ironclad:          "The  trial  court's refusal  to  give  a particular  instruction          constitutes reversible  error only  if the  requested instruction          was  (1)  correct  as  a  matter  of  substantive  law,  (2)  not          substantially incorporated  into the charge as  rendered, and (3)          integral to  an important point in  the case."  United  States v.                                                          ______________          McGill, 953 F.2d 10, 13 (1st Cir. 1992); accord  United States v.          ______                                   ______  _____________          Nason, 9 F.3d 155, 161 (1st Cir. 1993), cert. denied,  114 S. Ct.          _____                                   _____ ______          1331  (1994); United  States v.  Gibson, 726  F.2d 869,  874 (1st                        ______________     ______          Cir.), cert. denied, 466 U.S. 960 (1984).                 _____ ______                    To be sure, a  defendant has a right to  an instruction                                          4          on his theory of the case as long as that theory is valid  and is          supported  by the record.  See United  States v. Flores, 968 F.2d                                     ___ ______________    ______          1366, 1367 (1st Cir. 1992).  But, that right is not a license "to          put words in the judge's  mouth."  McGill, 953 F.2d at  12.  Jury                                             ______          instructions  are  intended  to   furnish  a  set  of  directions          composing,  in the  aggregate, the  proper legal standards  to be          applied  by lay jurors in  determining the issues  that they must          resolve  in a  particular case.   See  Calhoun v.  Acme Cleveland                                            ___  _______     ______________          Corp.,  798 F.2d  559, 564 (1st  Cir. 1986).   Provided  that the          _____          charge  satisfies this  need, the court's  choice of  language is          largely a matter of discretion.                    The rule in this circuit, therefore, is that "[s]o long          as  the charge  sufficiently conveys  the defendant's  theory, it          need not parrot the exact  language that the defendant  prefers."          McGill, 953 F.2d at 12; accord United States v. Mejia-Lozano, 829          ______                  ______ _____________    ____________          F.2d  268, 272 (1st Cir. 1987).  By  the same token, the judge is          not obligated  to instruct  on every particular  that conceivably          might be of interest to the  jury.  See United States v. Nazzaro,                                              ___ _____________    _______          889  F.2d 1158,  1167  (1st Cir.  1989);  United States  v.  Rule                                                    _____________      ____          Indus., Inc.,  878 F.2d 535, 543 (1st Cir. 1989).  On appeal, the          ____________          central inquiry reduces to whether, taking the charge as a whole,          see  Francis v.  Franklin,  471 U.S.  307,  315 (1985);  Cupp  v.          ___  _______     ________                                ____          Naughten,  414   U.S.  141,   146-47  (1973),   the  instructions          ________          adequately  illuminate  the  law  applicable to  the  controlling          issues  in  the  case  without  unduly  complicating  matters  or          misleading the jury.  See United States v. Alzanki, ___ F.3d ___,                                ___ _____________    _______                                          5          ___ (1st  Cir.  1995) [No.  94-1645,  slip op.  at  8]; Davet  v.                                                                  _____          Maccarone, 973 F.2d 22, 26 (1st Cir. 1992) (listing other cases).          _________                    Predictability  and consistency  are  important in  the          law, and judges  tend to use  the same phrases  over and over  in          explaining particular concepts to  jurors.  Appellant argues that          he  wanted no  more  than to  have the  district court  use time-          honored  language here, and that the court should have yielded to          his entreaty.   He points to  three precedents that he  says cast          the  court's disavowal  of  the "flight  beyond immediate  active          pursuit" articulation  into disrepute.  We examine  each of these          cases.                    In Orth v. United States, 252 F. 566 (4th Cir. 1918), a                       ____    _____________          prisoner  fled from a Georgia penitentiary.  Four weeks later, he          appeared on  the defendant's doorstep in  South Carolina, seeking          asylum.   The defendant lent a helping hand.  A jury subsequently          convicted Orth on  a charge  of assisting a  convict to  escape.3          The Fourth Circuit reversed, holding that by the time Orth became          involved,  the event  of escape  had long  since concluded.   The          court stated:  "When the physical control [over the prisoner] has          been ended by  [his] flight beyond immediate  active pursuit, the          escape is  complete."  Id. at  568.  Once that  point has passed,                                 ___          assisting the fugitive  can no longer be considered assisting the          escape.  See id.  A second case that appellant cherishes,  United                   ___ ___                                           ______          States  v. Vowiell, 869 F.2d  1264 (9th Cir.  1989), embraced the          ______     _______                                        ____________________               3The conviction  eventuated under an  earlier, substantially          similar version of the present 18 U.S.C.   752(a).                                          6          reasoning  of the Orth court  in connection with  a discussion of                            ____          the issue as  it relates  to the coconspirator  exception to  the          hearsay  rule.   The Ninth  Circuit agreed  that "[t]he  crime of          aiding  an  escape  terminates   once  the  escapee  has  reached          temporary safety," and defined "temporary safety" by  reiterating          Orth's "flight beyond immediate active pursuit" language.  Id. at          ____                                                       ___          1268 (quoting Orth, 252 F. at 568).                        ____                    The crown jewel in appellant's trilogy is United States                                                              _____________          v. Smithers, 27 F.3d 142 (5th Cir. 1994).  Smithers, charged with             ________          aiding  an   escape  under  section  752(a),   requested  a  jury          instruction  that contained the  "flight beyond  immediate active          pursuit" language.  The trial court denied the  request, choosing          instead  to charge according to the letter of the statute itself.          Following a guilty verdict, Smithers appealed.  The Fifth Circuit          vacated  the  conviction,   holding  that  defendant's  suggested          instruction was substantively correct  and that the trial court's          failure to  give it  impermissibly impaired Smithers'  ability to          raise his theory of defense.  See id. at 145-46.                                        ___ ___                    Although these  cases bear a family  resemblance to the          case at bar, they are at best cousins once or twice removed.   In          all three  cases, unlike  here, the relevant  assistance occurred          days after the  end of any immediate  pursuit, at a location  far          removed from the  place of liberation.  See  Smithers, 27 F.3d at                                                  ___  ________          143-44; Vowiell, 869 F.2d at 1265-66;  Orth, 252 F. at 568.  Over                  _______                        ____          and  above  this  salient distinction,  Orth  is  of little  help                                                  ____          because the court used the phrase that appellant extols not in an                                          7          effort to formulate a  model jury instruction, but in  the course          of explaining why,  on the  facts of that  case, the  defendant's                              ___________________________          conviction  could not  stand.4   Vowiell  is  cut from  the  same                                           _______          cloth.  As in Orth, the court gave no consideration either to how                        ____          jury instructions should be worded or to what language would best          fit a  case in which  pursuit had not  yet been mounted  when the          defendant first aided  the escapee.   Smithers, though closer  to                                                ________          the mark, is also inapposite.  While the opinion memorializes the          need to give a jury instruction regarding the limits to be placed          on  a  charge of  aiding  an  escape, it  does  not address  what          language is most  fitting when, as now,  there is no evidence  of          any  immediate, active  pursuit.   Nor  does  the Smithers  court                                                            ________          explore the pros  and cons  of using language  such as  appellant          tenders as  opposed to the "temporary  safety" language preferred          by the court below.                    Since these  precedents are not dispositive,  we take a          fresh look.   The linchpin of a charge under section 752(a)   and          the feature that sets it  apart from a charge of  harboring under          section 1072   is the showing  that the accused aided or assisted          an  escape rather  than merely  aiding or  assisting an  escapee.              ______                                               _______          This requires, of  course, that  a line be  drawn separating  the                                        ____________________               4The circumstances of Orth are such that,  on any reasonable                                     ____          view of the statute, the defendant's conviction for assisting  an          escape could not be  justified.  The fugitive  had been at  large          almost a month  and had  traveled through two  states before  the          defendant lifted a finger to help him.  See 252 F. at 567.  These                                                  ___          facts placed the defendant well outside the outer boundary of any          charge  of aiding and abetting  the escape regardless  of how the          court's opinion might be phrased.                                          8          escape    a  discrete event    from  what may  follow thereafter.          This  task is  perhaps more  difficult than  it appears  at first          blush, as the  term "escape"    which, after  all, means  nothing          more  or  less  than  "absenting  oneself  from  custody  without          permission,"  United States v. Bailey, 444 U.S. 394, 407 (1980)                          _____________    ______          encompasses  a wide  range of  scenarios.  Moreover,  the general          definition,  without the  insertion of  limiting  language, would          make breaking  out of  prison a virtually  endless continuum,  so          that any person who assisted an escapee, no matter how long after          the event or how distant from  the place of immurement, would  be          guilty  of  violating  section  752(a).   To  avoid  the  obvious          absurdity  inherent in  this  result, the  jury instruction  in a          criminal  prosecution brought  under section  752(a) must  draw a          clear, comprehensible line between the discrete event    that is,          the escape   and what may follow.                    We think that  the court's decision  here to frame  its          instruction in terms  of "reach[ing] temporary safety"  furnished          the necessary guidance  to the jury.5   The instruction described          an ascertainable point at  which the jury might find  that aiding          the escape ended and harboring began.  Thus, the delivered charge                                        ____________________               5Our confidence in the term is bolstered by its familiarity;          the  term  is  regularly  applied  in  other  analogous  criminal          contexts.  See, e.g., People v. Fierro, 821 P.2d 1302, 1326 (Cal.                     ___  ____  ______    ______          1991) (explaining  that  "the crime  of robbery  is not  complete          until  the  robber  has  won his  way  to  a  place of  temporary          safety"),  cert. denied, 113 S. Ct. 303 (1992); State v. Hearron,                     _____ ______                         _____    _______          619  P.2d 1157, 1159 (Kan.  1980) (holding that  a homicide falls          within  the  felony-murder rule  if  committed  during escape  or          attempted  escape, so long as the perpetrator has not yet reached          a  point of  temporary  safety).   Thus,  the term's  common  law          history informs the use of it here.                                          9          was well within  the realm of the trial  court's discretion.  See                                                                        ___          McGill, 953 F.2d at 13; see also Concise Oil & Gas Partnership v.          ______                  ___ ____ _____________________________          Louisiana Intrastate  Gas Corp., 986  F.2d 1463,  1474 (5th  Cir.          _______________________________          1993) ("In instructing the jury, district judges may select their          own words and charge in their  own styles.").  And, moreover, the          court's  language  seems particularly  apt  when contrasted  with          appellant's alternative formulation.  Where, as here, there is no          evidence that pursuit had been mounted  at or before the time the          defendant  rendered assistance,  an instruction  that centers  on          "flight  beyond  immediate active  pursuit"  risks  confusing and          confounding the jury without  supplying a scintilla of additional          enlightment.                    That ends  the matter.   Clear, easily  understood jury          instructions are vitally important  in assuring that jurors grasp          subtle or  highly nuanced  legal concepts.    Partially for  this          reason, the law is  settled that a trial court  may appropriately          refuse  to give a  proffered jury instruction  that is incorrect,          misleading, or incomplete  in some material respect.   See United                                                                 ___ ______          States v. David, 940 F.2d 722, 738 (1st Cir. 1991), cert. denied,          ______    _____                                     _____ ______          504 U.S. 955 (1992).  So it is here.                    We  need go  no  further.   Because the  court's charge          constituted  a correct statement of  the law, and  would not have          been  improved by the  substitution or insertion  of the proposed          instruction,6 we reject appellant's lone assignment of error.                                        ____________________               6We   should  not   be   understood   either  as   banishing          instructions featuring "flight beyond immediate  active pursuit,"          or  as relegating  such  instructions to  the  scrap heap.    The                                          10          Affirmed.          Affirmed.          ________                                        ____________________          language may have a legitimate place  in certain situations, such          as in helping the jury to visualize the issue in a case in which,          unlike this one, immediate active pursuit is underway at the time          the defendant renders aid.                                          11
