234 F.3d 498 (11th Cir. 2000)
UNITED STATES of America, Plaintiff-Appellee,v.Raymundo RODRIGUEZ-FERNANDEZ, Defendant-Appellant.
No. 99-15014.
United States Court of Appeals, Eleventh Circuit.
November 29, 2000.December 11, 2000.

Appeal from the United States District Court for the Southern District of  Florida.(No. 99-00175-CR-UUB), Ursula Ungaro-Benages, Judge.
Before TJOFLAT, HILL and POLITZ*, Circuit Judges.
POLITZ, Circuit Judge:


1
Raymundo Rodriguez-Fernandez appeals his conviction by a jury of escape in  violation of 18 U.S.C.  751(a). Finding that the prosecution failed to prove an  element of the charged offense, we reverse.

BACKGROUND

2
On November 11, 1997, an Immigration Judge ordered Rodriguez-Fernandez excluded  from the United States for violation of U.S. immigration laws, specifically, 8  U.S.C.  1182(a)(2)(B), conviction of multiple criminal offenses for which the  aggregated sentences total five years or more; and  1182(a)(2)(C), being a  known controlled substance trafficker. He was in state custody when the order  was issued and was not then turned over to the Immigration and Naturalization  Service for exclusion. On October 11, 1998, he was released from the state  facility and transferred to the Broward County Sheriff's Office which had filed  a detention request.1 Finally, on December 11, 1998, he was taken by INS  officers from the Broward County Sheriff's Office to the Krome Detention Center,  an INS facility outside of Miami, Florida.


3
On the morning of January 21, 1999, Rodriguez-Fernandez and another detainee hid  from Krome officers while being escorted to breakfast, cut holes in the security  fences surrounding the facility, and fled the area. On March 9, 1999, Miami  Police Department officers, along with two federal agents, located and arrested  Rodriguez-Fernandez. He was subsequently indicted for knowingly and willfully  escaping the Krome detention facility, in violation of 18 U.S.C.  751(a).


4
In sidebar discussions during trial, defense counsel challenged the sufficiency  of the evidence that defendant was being held at Krome either at the direction  of the Attorney General or for exclusion proceedings. Counsel also sought  permission from the court to argue that the time for the removal of defendant  from the country had expired; therefore, he must have been held at Krome for  some reason other than exclusion proceedings.2 The prosecution acknowledged that  no order, directive, or other document specified that Rodriguez-Fernandez be  held at Krome, or anywhere else, pending exclusion from the United States. The  trial court obviously was troubled by this admission, and directed the  prosecutor to further research the authority for defendant's detention.


5
In a supplemental pleading the United States Attorney asserted that the Order of  Removal and the Notice to Appear, issued by the Immigration Judge and listing  the reasons defendant was subject to exclusion, when considered in conjunction  with 8 U.S.C.  1231(a)(2), served, by operation of law, to mandate his  detention at Krome.3 The prosecution further relied upon INS Officer John  Morales, who testified that he reviewed Rodriguez-Fernandez's file, which  included the Order of Removal and the Notice to Appear and, based upon his  training and experience, he determined that detention of Rodriguez-Fernandez was  required by the statute.4


6
The trial court accepted the Government's position as sufficient to establish  that Rodriguez-Fernandez was being held at Krome at the direction of the  Attorney General for exclusion from the United States. The court repeatedly  rejected defense counsel's request to question Morales regarding the continued  detention even though, by defense counsel's calculation, the 90 days authorized  by the statute had expired. The court also refused to allow counsel to argue to  the jury that, because the 90 days had expired, defendant must have been  detained for some reason other than exclusion proceedings. According to the  court, this line of questioning would essentially be impermissibly challenging  the lawfulness of his continued detention, or postulating propositions the  evidence did not support and that Rodriguez-Fernandez had no good faith basis  for offering.


7
After the Government rested its case-in-chief, defendant moved for a judgment of  acquittal, asserting that the prosecution had not established that he was  confined at Krome at the direction of the Attorney General for exclusion  proceedings. Accepting the contentions put forth by the prosecution in its  supplemental pleading, the trial court denied the motion. After the close of the  evidence Rodriguez-Fernandez again moved for a judgment of acquittal, once again  based upon the contention that the prosecutor had not established the necessary  elements of the offense charged. That motion also was denied, and the jury  subsequently found Rodriguez-Fernandez guilty of escape. He timely appealed.

ANALYSIS

8
Where the challenge to a criminal conviction is sufficiency of the evidence,  review is de novo, viewing the evidence in a light most favorable to the  prosecution.5


9
Title 18 U.S.C.  751(a) states, in relevant part:


10
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 commissioner, or from the custody of an officer or employee  of the United States pursuant to lawful arrest, shall, ... if the custody or  confinement is for extradition, or for exclusion or expulsion proceedings  under the immigration laws, ... be fined under this title or imprisoned not  more than one year, or both.


11
To legally prove Rodriguez-Fernandez guilty of the criminal offense of escape,  the prosecutor had to establish all three elements of the offense, specifically,  that he: (1) was confined at Krome at the direction of the Attorney General; (2)  for exclusion proceedings; and (3) escaped that confinement.6


12
Neither the Order of Removal nor the Notice to Appear stated that Rodriguez-  Fernandez should be detained, at Krome or elsewhere. The sole prosecution  evidence regarding the basis for his detention was the testimony of Officer  Morales that he had reviewed defendant's file, including the Order of Removal  and the Notice to Appear, and, based upon his experience and his knowledge of   1231(a)(2), he determined that the defendant must be detained at Krome. No  order, directive, or document from the Attorney General, or her authorized  representative, however, directed INS Officer Morales, or any other authority,  to detain Rodriguez- Fernandez.


13
The trial court called the lack of any such order "inconceivable." We agree, and  we find the prosecutor's contention that detention was required by operation of  law unpersuasive. In an exclusion proceeding the due process rights of the  detainee are what Congress ordains.7 "That is not to say, however, that the  unadmitted alien is not entitled to the process which is afforded such by  statute or regulation."8 Even if Rodriguez-Fernandez had no constitutional due  process right to be advised of the basis, terms and conditions of his detention,  the statute requires that, for him to be guilty of escape, he must have been in  custody or confinement under certain, specified conditions. At a minimum, where  the defendant was not under custodial arrest, was not in the custody of the  Attorney General or her authorized representative, and was not subject to any  judicial process ordering confinement, the statute requires some affirmative  confinement order by the Attorney General or her authorized representative, one  that is documented and capable of review and confirmation.


14
The Government presented no such evidence in this case, but instead relied  solely upon the testimony of Officer Morales that, in his judgment, the law  required that Rodriguez-Fernandez be detained at Krome. There is no authority  for the proposition that the experience and judgment of a detention officer  alone, in a case as is here presented, satisfies the statutory requirements. No  circuit court has so concluded. Nor do we. Accordingly, viewing the evidence in  the light most favorable to the prosecution, we cannot but conclude that the  prosecutor failed to offer evidence establishing the first element of the  offense charged. We need not consider the adequacy of proof of the other two  elements.


15
For these reasons, the conviction of Rodriguez-Fernandez is REVERSED.



NOTES:


*
 Honorable Henry A. Politz, U.S. Circuit Judge for the Fifth Circuit, sitting by  designation.


1
 Unlike writs of habeas corpus ad prosequendum, which demand that a prisoner be  immediately produced to face criminal charges, detainers merely request that  authorities seeking to prosecute the individual be notified when the authority  having custody is about to release the subject. In addition to the Broward  County Sheriff's Office, the INS had also placed a detainer on  Rodriguez-Fernandez.


2
 Title 8 U.S.C.  1231(a)(1)(A) states "Except as otherwise provided in this  section, when an alien is ordered removed, the Attorney General shall remove the  alien from the United States within a period of 90 days (in this section  referred to as the removal period)." During the trial there was conflicting  testimony about when the 90 day clock starts. Because we find the prosecution  did not establish an element of the offense, we need not resolve that conflict.


3
 Title 8 U.S.C.  1231(a)(2) states, "During the removal period the Attorney  General shall detain the alien. Under no circumstances during the removal period  shall the Attorney General release an alien who has been found inadmissible  under section 212(a)(2) or 212(a)(3)(B) [8 U.S.C.  1182(a)(2) or (a)(3)(B) ]."


4
 Morales is a United States Immigration Officer whose duties include processing  aliens who have received final orders of deportation, or who have been ordered  excluded from admission. He was the officer assigned to process Rodriguez-  Fernandez after he was brought to Krome from the Broward County Sheriff's  Office.


5
 United States v. Futrell, 209 F.3d 1286 (11th Cir.2000).


6
 See, e.g., United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575  (1980); United States v. Spletzer, 535 F.2d 950 (5th Cir.1976). The first  element, pertaining to custody or confinement, normally can be established by  demonstrating that a subject was (1) in the custody of the Attorney General or  her authorized representative; (2) confined in an institution by direction of  the Attorney General; (3) in custody under or by virtue of any process issued  under the laws of the United States by any court, judge, or magistrate; or (4)  in the custody of an officer or employee of the United States pursuant to a  lawful arrest. United States v. Evans, 159 F.3d 908 (4th Cir.1998). Accord  United States v. Depew, 977 F.2d 1412 (10th Cir.1992); United States v. Stiles,  965 F.2d 353 (7th Cir.1992); United States v. Howard, 654 F.2d 522 (8th  Cir.1981). Rodriguez-Fernandez was indicted for escape from "a facility in which  he was confined by direction of the Attorney General of the United States." The  indictment did not allege that he was in the custody of the Attorney General or  her authorized representative, that any court order or other judicial process  directed that he be detained, or that he was in custody contemporaneous to a  lawful arrest.


7
 Unlike the deportation of a previously admitted alien, someone seeking admission  but deemed excludable has no constitutional right to due process. "Whatever the  procedure authorized by Congress is, it is the due process as far as an alien  denied entry is concerned." Shaughnessy v. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97  L.Ed. 956 (1953).


8
 Avila v. Rivkind, 724 F.Supp. 945 (S.D.Fla.1989)(examining the distinctions  between exclusion and deportation, and the due process afforded those facing  each).


