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United States v. Small

United States Court of Appeals, Third Circuit

July 13, 2015

UNITED STATES OF AMERICA
v.
KEVIN WILLIAM SMALL, Appellant

Argued October 1, 2014.

On Appeal from the United States District Court for the Middle District of Pennsylvania. (No. 1-12-cr-00067-001). District Judge: Hon. Gene E.K. Pratter.

Eleni Kousoulis, Esq. [ARGUED], Tieffa N. Harper, Esq., Office of Federal Public Defender, Wilmington, DE, Attorneys for Appellant.

Peter J. Smith, Christy H. Fawcett, Esq. [ARGUED], Office of United States Attorney, Harrisburg, PA, Attorney for Appellee.

Before: AMBRO, CHAGARES, and VANASKIE, Circuit Judges.

OPINION

CHAGARES, Circuit Judge.

Kevin William Small was convicted of tax fraud in federal district court while he still had time left to serve on a Pennsylvania state prison sentence. He arranged for a forged court order purporting to vacate his federal sentence to be presented to Pennsylvania state prison officials and, as a result, was released at the end of his state sentence rather than turned over to federal officials to begin serving his federal sentence. This case presents the question of whether Small thereby escaped from " custody" within the meaning of the federal escape statute, 18 U.S.C. § 751. We hold that he did, and we will affirm the judgment of the District Court.

I.

On October 5, 2007, Small was sentenced by a federal court to 135 months of imprisonment for filing false tax returns. He was serving a separate sentence in Pennsylvania state prison at that time, and the District Court ruled that his federal sentence was to be served consecutive to his state sentence. After sentencing, he was returned to the Pennsylvania State Correctional Institution at Huntingdon (" Huntingdon" ) to serve the remainder of his state sentence. The U.S. Marshal subsequently served the Commonwealth Department of Corrections with a document entitled " Detainer Based on Federal Judgment and Commitment," which governed Small's transfer to federal authorities upon completion of his state sentence.

In October 2011, the records staff at Huntingdon received documents in the mail, ostensibly from the Clerk of Court for the United States District Court for the Middle District of Pennsylvania, but which in reality were forgeries sent at Small's direction. The documents appeared to bear the Clerk's signature and directed the entry of an accompanying order, supposedly issued by the District Court, vacating Small's federal conviction and sentence. The order appeared to have been signed by Judge Christopher C. Conner and to bear the District Court's official seal. The officials at Huntingdon accepted the papers, and Small was released upon the completion of his state sentence in January 2012, unbeknownst to federal authorities. In March 2012, a federal agent learned of Small's release from Huntingdon and his failure to begin his federal sentence. Federal agents quickly located and arrested Small.

Small was indicted and charged with several crimes: forging the signature of a United States judge, forging a seal of a United States agency, mail fraud, conspiracy, and, the only relevant crime for our purposes, escape. Small filed a motion to dismiss the escape charge on the ground that he was never in federal custody, a requisite element of the crime. His motion was denied by the District Court on April 30, 2013. He subsequently entered an " open plea" of guilty to all counts and was sentenced to a term of 60 months of imprisonment on each count, to be served concurrently with one another but consecutively to his tax fraud sentence. Small timely appealed.

II.

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction pursuant to 28 U.S.C. § 1291.

We " apply a mixed standard of review to a district court's decision on a motion to dismiss an indictment, exercising plenary review over legal conclusions and clear error review over factual findings." United ...


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