United States District Court, N.D. Iowa, Cedar Rapids Division
LINDA R. READE, District Judge.
The matter before the court is Defendant Jamie Goad's "Motion to Dismiss for Lack of Jurisdiction/Failing to State an Offense" ("Motion") (docket no. 9).
II. RELEVANT FACTUAL AND PROCEDURAL HISTORY
On December 23, 2010, Defendant was sentenced to twenty-four months' imprisonment and three years of supervised release for possession of a firearm after a conviction for a misdemeanor crime of domestic violence. See United States v. Goad, 10-CR-44-LRR, Judgment (docket no. 37). On June 14, 2012, Defendant's release was revoked and Defendant was sentenced to eleven months' imprisonment. Id. Judgment (docket no. 52). On June 4, 2013, Defendant's release was again revoked and he was sentenced to five months' imprisonment and he was ordered to reside in a residential reentry center for a period of up to 120 days following release from prison. Id. Judgment (docket no. 64). On December 11, 2013, Defendant left the residential reentry center without permission and did not return. Defendant's release was again revoked and he was sentenced to twenty-four months' imprisonment with no supervised release to follow. Id. Judgment (docket no. 76).
On February 25, 2014, the grand jury returned a one-count Indictment (docket no. 2) against Defendant. The Indictment charged Defendant with knowingly escaping from an institution or facility in which he was lawfully confined in violation of 18 U.S.C. § 751(a). On March 27, 2014, Defendant filed the Motion. On April 1, 2014, the government filed a Resistance (docket no. 10). The Motion is fully submitted and ready for decision.
A. Parties' Arguments
In the Motion, Defendant moves pursuant to Federal Rule of Criminal Procedure 12(b) and argues that 18 U.S.C. § 751(a) does not apply to him and the court should dismiss the Indictment because he was not in "custody" for purposes of 18 U.S.C. § 751(a) while he was residing at a residential reentry center ("RRC"). Defendant contends that the court should "follow the Ninth Circuit [Court of Appeals's] interpretation of the term custody'" by "drawing a two-part critical distinction[:]... whether the individual was in the custody of the Attorney General and whether the conditions of release more closely resemble incarceration or probation." Brief in Support of the Motion (docket no. 9-1) at 2. Defendant urges the court to further conclude, consistent with the Ninth Circuit, that residence at an RRC does not constitute "custody" under the statute.
The government argues that Defendant was in "custody" while residing at the RRC, and the court should follow the Tenth and Second Circuits Courts of Appeals' holdings that residence at an RRC constitutes "custody" under the statute.
B. Applicable Law and Application
Federal Rule of Criminal Procedure 12(b) provides that a defendant may move before trial to "alleg[e] a defect in the indictment." Fed. R. Crim. P. 12(b)(3)(B). "[T]o be valid, an indictment must allege that the defendant performed acts which, if proven, constitute the violation of law for which he [or she] is charged. If the acts alleged in the indictment do not constitute a violation of law, the indictment is properly dismissed." United States v. Polychron, 841 F.2d 833, 834 (8th Cir. 1988). The statute at issue 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; or 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.
18 U.S.C. § 751(a). The Eighth Circuit Court of Appeals has not directly addressed whether residence at an RRC following a period of incarceration amounts to "custody" under 18 U.S.C. § 751(a), though it stated in dicta that "required residence in a halfway house is not considered custody' for... the felony of escape from custody ...