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United States v. George

decided: June 26, 1980.

UNITED STATES OF AMERICA
v.
ETIENNE GEORGE, APPELLANT



APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS, DIVISION OF ST. THOMAS AND ST. JOHN (Criminal No. 79-50)

Before Adams, Maris and Sloviter, Circuit Judges.

Author: Maris

Opinion OF THE COURT

A jury having found Etienne George guilty of escape from the custody of an officer or employee of the United States in violation of 18 U.S.C. § 751(a), and threatening an officer of a court of the United States in violation of 18 U.S.C. § 1503, the district court adjudged him guilty as charged in the information and sentenced him to two years imprisonment on each count, the two terms of imprisonment to be served concurrently. He appeals.

At the time the federal charges under 18 U.S.C. §§ 751(a) and 1503 were filed against George, he was free on bail pending trial in the district court on local felony charges lodged against him by the government of the Virgin Islands. On September 29, 1978, he had been released on bail by a judge of the territorial court. One of the conditions of his release, stated in the judge's order, was that he "report to the U. S. Marshal each and every Wednesday morning at 8:30 a.m."

At his arraignment before a magistrate in the district court on the local charges against him, George was again ordered to report weekly to the marshal's office.

On November 20, 1978, Chief Judge Christian of the district court entered a general order directing in relevant part that ". . . all persons accused of criminal offenses in the District Court of the Virgin Islands shall report to the Office of the United States Marshal at 8:30 a. m. on Wednesday of each week, if any such defendant is not in custody . . ." The order further directed that ". . . should any accused fail to report to the Marshal for two consecutive weeks, this Order will serve as authority to the United States Marshal to arrest any such person and bring that person before the Court."

On March 8, 1979, pursuant to the district court's order of November 20, 1978, Deputy United States Marshal Richard Dade placed George under arrest for having failed to report to the United States marshal's office for two consecutive weeks. As a matter of fact, he had not so reported since November 1978. On the basis of George's actions at the time of this arrest, the United States attorney filed the two-count information charging George with the federal crimes, from his conviction of which he now appeals.

With respect to his conviction on the first count for escape from lawful custody under 18 U.S.C. § 751(a), George questions the sufficiency of the evidence that his arrest by Dade was lawful and the sufficiency of the evidence that he had an intent to escape custody and contends that the trial judge's instructions to the jury on the issues of the lawfulness of the arrest and the existence of the necessary intent and certain other instructions constitute reversible error. As to his conviction on the second count for threats against an officer of a court of the United States under 18 U.S.C. § 1503, George questions the applicability of § 1503 to threats against an officer of the District Court of the Virgin Islands and the applicability of § 1503 to George's conduct.

Before we consider the legal issues presented by the appeal, however, we should place them in the context of the circumstances of George's arrest. We are mindful that the evidence must be viewed, on this appeal, in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942); Government of Virgin Islands v. Gereau, 11 V.I. 265, 293, 502 F.2d 914, 930-931 (1974), cert. denied, 420 U.S. 909, 95 S. Ct. 829, 42 L. Ed. 2d 839 (1975). Viewed in this light, the evidence disclosed the following facts.

Prior to arresting George on March 8, 1979, Dade had knowledge of the district court's order of November 20, 1978, and of George's violation of the order and the conditions of his bail. In fact, George had not reported to the marshal's office since November 1978. Moreover, at the commencement of the trial, the defense stipulated that for at least two consecutive weeks prior to his arrest George had failed to report to the marshal's office and further stipulated that the district court's order of November 20, 1978, was authority for Deputy Marshal Dade to arrest George.

On March 8, 1979, Dade was driving a marshal's van and carrying a subpoena ordering George to appear in court the following Monday when he saw George walking in the vicinity of his van and beckoned to him to approach the van. George, however, continued on his way. Dade parked the van and ran after George calling to him to stop, that he was under arrest. George said he wanted to know for what. Dade told him, "For not coming in and signing our book." But George refused to go with Dade and after a little tussle Dade got George into his van. George said he would jump out and Dade told him that if he did, there would be escape charges against him and he would shoot him. George, nonetheless, did jump out of the van and ran down the street. Dade fired a shot in the air and George ran around behind a building and reappeared on the other side of it where there was a fence between him and Dade. George then said, "Man, what are you trying to do to me." He refused to come over the fence, started cursing and told Dade he would kill him and his family. At that point another deputy marshal and a police officer arrived and persuaded George to climb over the fence. He was then handcuffed and taken to police headquarters at Fort Christian.

Having thus summarized the circumstances of the appellant's arrest, we now consider the legal issues raised by his conviction and we first take up the issues relative to his conviction on the first count, that founded on 18 U.S.C. § 751(a). That Section provides in relevant part:

"Whoever escapes or attempts to escape . . . from the custody of an officer or employee of the United States pursuant to lawful arrest, shall, if the custody . . . is by virtue of an arrest on a charge of felony . . . be fined not more than $5,000 or imprisoned not more than five years, or both. . . ."

The escape contemplated under the statute is from the custody of an officer or employee of the United States. There can be no question but that Dade, a deputy United States marshal for the Virgin Islands at the time he arrested George, from whose custody George allegedly escaped, was an employee, if not an ...


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