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United States v. Hope

United States District Court, D. Montana, Butte Division

January 10, 2018



          Dana L. Christensen, Chief District Judge United States District Court

         Before the Court is Defendant Martin Jay Hope's ("Hope") Motion to Dismiss for Lack of Jurisdiction/Failure to State an Offense Against the United States (Doc. 16). Hope argues that he was not in custody for purposes of effecting an escape as required by the indictment and that, as a result, the charges against him should be dismissed. The Government opposes Hope's Motion. For the following reasons, the Court will deny Hope's Motion.


         In November 2008, Hope was sentenced to 312 months imprisonment as an Armed Career Criminal. In March 2017, Hope was resentenced to 120 months imprisonment followed by three years of supervised release. (Docs. 17 at 2; 18 at 2.)

         On April 27, 2017, Hope signed a "Supervision Release Plan" indicating that he would be eligible for supervised release on October 26, 2017. (Doc. 18-11 at 2.) On this same form, it was indicated that Hope was "recommended for Residential Reentry Center Placement prior to release to assist him with an appropriate societal reintegration process and viable plan of transition into the community." (Id.)

         On September 6, 2017, Hope applied for furlough with the Federal Bureau of Prisons ("BOP") requesting transfer from USP Atwater, where he was serving his prison term, to a Residential Reentry Center ("RRC") in Butte, Montana. (Doc. 18-4 at 1.) Hope signed this application under a statement expressing his understanding that he remained in the custody of the Attorney General of the United States, that his furlough only extended the limits of his confinement, and that he could be charged with escape under 18 U.S.C. § 751 if he failed to remain within these extended limits of his confinement. (Id.) Hope also signed a form detailing the conditions of his furlough and reiterating that he remained "in the legal custody of the U.S. Attorney General, in service of a term of imprisonment" and would be "subject to prosecution for escape" should he fail "to return to the institution at the designated time." (Doc. 18-5 at 1.)

         Hope's application for furlough to be transferred to the Butte RRC was approved on September 15, 2017. (Doc. 18-4 at 1.) The application indicated that Hope's furlough would begin on September 26, 2017, at 8:00 a.m. and end on September 27, 2017, at 6:20 p.m. (Id.) The application further indicated that Hope was to be transported to the Butte RRC via Greyhound bus and was to arrive in Butte by 5:20 p.m. on September 27, 2017, and report to the Butte RRC by 6:20 p.m. that same day. (Id.)

         Hope boarded the bus as planned on September 26, 2017. (Docs. 17 at 2; 18 at 2). However, on September 27, 2017, Hope failed to board a connecting bus in Reno, Nevada, as scheduled. (Doc. 18 at 3.) Hope advised the BOP that he had missed his bus transfer and the BOP purchased Hope a new bus ticket for an arrival in Butte no later than 6:20 p.m. September 28, 2017. (Docs. 18 at 3; 18-9 at 2.) On September 29, 2017, after confirming that Hope had not arrived at the Butte RRC, the BOP advised the United States District Court for the District of Montana, the United States Marshals Service, and the United States Attorney's Office that Hope was placed on escape status for his failure to report to the Butte RRC. (Docs. 18 at 3; 18-8 at 1.) Hope was arrested in Longview Washington on September 30, 2017. (Doc. 18-10 at 2.) Thereafter, Hope was charged with escape pursuant to 18 U.S.C. § 751(a). (Doc. 3 at 1-2.)


         The issue before the Court is whether Hope was "in custody, " as that term is used in 18 U.S.C. § 751 (a), when the BOP transferred him to the Butte RRC. If Hope was not, then he cannot be found guilty of "escape" under that statute.

         Section 751(a) provides:

Whoever escapes ... 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... shall, if the custody or confinement is by virtue of an arrest on a charge of felony ... be fined ... or imprisoned ... or both .. .

         Hope contends that he has not committed the crime of escape because "confinement in a community treatment center or half-way house is not imprisonment or custody within the purview of 18 U.S.C. § 751(a)." (Doc. 17 at 3.) Additionally, Hope argues that, as provided by 18 U.S.C. § 3624(e), "supervised release commences on the day the person is released from imprisonment." (Doc. 17 at 3.) Apparently contending that he was on supervised release at the time in question, Hope then states that "supervised release is not custody." (Id. at 3.) Hope's argument ends with an unexplained quote from United States v. Burke, 694 F.3d 1062, 1065 (9th Cir. 2012):

Burke was conditionally released from incarceration; his failure to return to [Spokane RRC] was a violation of his release conditions punishable by revocation of release, not an escape from "custody" ...

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