September 2, 2014

Tenth Circuit: Appellant Entited to Evidentiary Hearing on Ineffective Assistance of Counsel Claim

The Tenth Circuit Court of Appeals published its opinion in Milton v. Miller on Friday, March 7, 2014.

Appellant Antonio Milton is an Oklahoma state prisoner serving a life sentence without parole for drug-trafficking-related convictions. After exhausting his state court remedies, Milton filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that his counsel on direct appeal was ineffective for failing to assert a claim of ineffective assistance of trial counsel, specifically that Milton’s trial counsel failed to inform Milton of a favorable pretrial plea offer. The district court denied Milton’s petition, but the Tenth Circuit granted Milton a certificate of appealability to challenge the district court’s ruling.

The Tenth Circuit concluded that the Oklahoma state courts’ resolution of Milton’s ineffective assistance claim could not survive scrutiny under 28 U.S.C. § 2254(d)(1), and that unresolved issues of fact prevented the court from completing its de novo review of the claim. The court concluded that reasonable jurists could debate the merit of Petitioner’s claim of ineffective assistance based on the counsel’s alleged failure to inform him of the plea offer.

Milton argued on appeal that the OCCA’s resolution of his ineffective assistance of appellate counsel claim was contrary to, or an unreasonable application of, clearly established federal law. In turn, Milton argued, he was entitled to a federal evidentiary hearing to resolve his claim.

Milton correctly identified Strickland v. Washington, 466 U.S. 668 (1984) as the clearly established federal law applicable to his ineffective assistance of appellate counsel claim. Milton challenged the Oklahoma Court of Appeals (OCCA’s) analysis of his ineffective assistance of appellate counsel claim, arguing that the OCCA’s decision was both contrary to and an unreasonable application of clearly established federal law because the OCCA misstated the legal tests governing the proper inquiry under federal law.

The Tenth Circuit agreed with Milton that the OCCA misstated the standard for analyzing the issue of whether appellate counsel’s performance was deficient. The result was the requirement that the Tenth Circuit review de novo Milton’s ineffective assistance of counsel claim, rather than deferring to the OCCA’s resolution of that claim.

In applying the two-pronged Strickland test, the Tenth Circuit agreed with Milton that Milton’s appellate counsel clearly performed deficiently in failing to promptly and meaningfully convey to Milton the existence of a plea offer made by the prosecution at some point prior to the October 30, 2007 preliminary hearing. The focus then turned to the second prong of the Strickland analysis, i.e., whether Milton was prejudiced by his appellate counsel’s deficient performance. The court concluded there was conflicting evidence in the record regarding the precise nature of the plea offer that was purportedly made by the prosecution prior to the October 30, 2007 preliminary hearing. The court concluded there was a reasonable probability that, had Milton’s appellate counsel raised on direct appeal the issue of whether trial counsel failed to inform Milton of the pre-preliminary hearing plea bargain, Milton would have prevailed on this issue in his direct appeal.

The Tenth Circuit held that Mr. Milton was entitled to a federal evidentiary hearing to resolve the disputed factual issues relating to his ineffective assistance of appellate counsel claim, since disputed issues of fact existed that precluded the court from completing its de novo review of Milton’s ineffective assistance of appellate counsel claim.

The Tenth Circuit REVERSED and REMANDED to the district court with directions to conduct an evidentiary hearing on, and to subsequently review on the merits, Milton’s ineffective assistance of appellate counsel claim.

Colorado Court of Appeals: Appropriate Remedy for Illegal Sentence is to Remand Case to Trial Court for Sentencing

The Colorado Court of Appeals issued its opinion in People v. Bassford on Thursday, February 27, 2014.

Sentence Illegal—Crim.P. 35(a)—Removal of Probation Requirement—Resentencing.

Defendant was charged in Denver District Court (case No. 02CR5403) with one count of violating the Colorado Organized Crime Control Act (COCCA), and with multiple counts of securities fraud and felony theft. He later was charged in Denver District Court (case No. 03CR4422) with one count each of felony theft, defrauding a secured creditor, and forgery. The cases were consolidated for trial, and a jury found defendant guilty of all counts ultimately tried.

The court sentenced defendant to twelve years in Department of Corrections (DOC) custody and then to twelve years of probation. On appeal, the forgery conviction was vacated, but the judgment and sentence were affirmed as to all other counts. Thereafter, defendant filed a Crim.P. 35(a) motion, claiming that the probation portion of his sentence was illegal. The trial court vacated the original sentence and then resentenced defendant to twenty-two years in DOC custody, plus mandatory parole; suspended the entire DOC sentence (giving defendant credit for a little more than twelve years of time served); and imposed twelve years of probation with the economic crime unit.

On appeal, defendant contended that his original sentence was illegal because the court ordered him to complete probation after his release from DOC custody, and that the district court erred by resentencing him rather than simply removing the probation requirement. Defendant’s original sentence was illegal, and the court was without statutory authority to suspend ten years of the eighteen-year DOC sentence on the condition that defendant complete economic crime probation after the initial eight years in the DOC. Although Crim.P. 35(b) authorizes a district court to reduce a sentence, the district court erred in relying on Crim.P. 35(b) to modify defendant’s sentence, because the court did not reduce his sentence. However, because defendant’s original sentence was illegal in its entirety, the appropriate remedy was to remand the case to the trial court for resentencing.

Summary and full case available here.

Colorado Supreme Court: For Purposes of Parole Eligibility, Rules of Statutory Construction Require DOC to Construe All Sentences as One Continuous Sentence

The Colorado Supreme Court issued its opinion in Nowak v. Suthers on Monday, February 24, 2014.

Parole Eligibility Date—Statutory Interpretation.

In this habeas corpus appeal, the Supreme Court evaluated for the first time the relationship between CRS §§ 17-22.5-101 and -403(1) of article 22.5, which governs inmate and parole time computation. The Court held that, for the purpose of computing an inmate’s parole eligibility date, § 17-22.5-101 requires the Department of Corrections to construe all sentences as one continuous sentence when the inmate has been committed under several convictions with separate sentences, even when doing so results in the inmate becoming parole eligible before serving at least 50% of the second sentence. Accordingly, the Court affirmed the trial court’s judgment.

Summary and full case available here.

Colorado Court of Appeals: Period In Which Competency Evaluation Being Completed Excluded from Speedy Trial Timeline

The Colorado Court of Appeals issued its opinion in People v. Naqi on Thursday, February 13, 2014.

Violation of Right to Speedy Trial—Competency Evaluation—Crime of Violence—Sentencing.

On January 10, 2011, while represented by the public defender, defendant pleaded not guilty to the charge of sexual assault on his stepdaughter while in a position of trust–pattern of abuse. In March 2011, defendant filed a pro semotion seeking to obtain a different attorney, which was denied. On June 1, 2011, the original defense counsel filed a motion to continue the case; defendant objected. The court gave defendant the option of proceeding pro se or waiving the speedy trial date and proceeding with either the original defense counsel or alternate defense counsel. Defendant chose to proceed pro se and was found competent to proceed after a court-ordered competency evaluation. A jury convicted him as charged.

On appeal, defendant contended that his right to a speedy trial was violated because the competency evaluation was unfounded and, therefore, the period during which his competency was being evaluated should not have been excluded from the six-month speedy trial period. A defendant must be brought to trial within six months of entering a not-guilty plea. However, any period during which a defendant is under examination with respect to his or her competency is excluded from the six-month period. Here, the record supports the conclusion that defendant might not have been competent to proceed to trial. Therefore, the court did not abuse its discretion in ordering a competency evaluation, and the period of time to complete the evaluation was properly excluded from the speedy trial period.

Defendant also contended that the trial court erred by aggravating the applicable sentencing range in accordance with the crime of violence and extraordinary risk crime statutes. Defendant was subject to crime of violence sentencing because the offense of which he was convicted is a per se crime of violence. Therefore, the prosecution was not required to prove a crime of violence to aggravate the sentencing range in accordance with the crime of violence statute. Although the sentencing range should not have been aggravated as an extraordinary risk crime, the sentence fell within the corrected sentencing range. Therefore, the judgment and sentence were affirmed.

Summary and full case available here.

Tenth Circuit: Defendants’ Convictions in Methamphetamine Trafficking Conspiracy Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Serrato on Friday, February 7, 2014.

Eddie Serrato and Sotero Negrete are drug dealers. In this case, they both were found guilty of multiple counts related to their involvement in a methamphetamine trafficking conspiracy centered in Casper, Wyoming. On appeal, Mr. Serrato raised four challenges to his conviction and sentence: (1) the prosecutor engaged in misconduct that violated his Fifth and Sixth Amendment rights; (2) there was an unconstitutional variance between the crime charged (a single conspiracy) and the evidence presented at trial (two separate conspiracies); (3) the district court abused its discretion in its calculation of his offense level under the federal sentencing guidelines;  and (4) the district court erred in denying his motion to suppress evidence obtained from a traffic stop that constituted an unconstitutional seizure under the Fourth Amendment.

Mr. Negrete raised arguments one and two above and added that the evidence was insufficient to support his conviction of using or carrying a firearm in furtherance of a drug trafficking crime.

First, both defendants challenged as prosecutorial misconduct two separate remarks made by government counsel during trial—one in the course of making an objection during the defendant’s cross-examination of DEA Special Agent Ryan Cox, and the other in counsel’s rebuttal closing argument. They contended that the misconduct violated their constitutional rights under the Fifth and Sixth Amendments.

During cross-examination of Special Agent Cox, defense counsel asked whether the government had intercepted phone calls involving Mr. Serrato other than recordings from jail calls. Special Agent Cox responded that he believed they did have other such recordings. When defense counsel asked whether Agent Cox would play the recording, Agent Cox responded “I didn’t prepare it today.” Government counsel objected: “Your Honor,  I’m going to object now. Counsel has every bit of discovery. If counsel wants to play a recording, he can play it. It’s not Mr. Cox’s responsibility to bring the recordings for Mr. Pretty [Defendant Serrato’s attorney]. He’s got them in discovery.”

Mr. Serrato’s attorney then asked for a sidebar and moved for a mistrial on the basis that any insinuation that Mr. Serrato needed to put on evidence violated his Fifth Amendment right to remain silent. Mr. Negrete’s attorney joined in the motion. The district court denied the motion.

The second challenged remark occurred during the government’s rebuttal closing argument. The defense called into question the veracity of the testimony of a confidential informant. Government counsel stated: “If you remember, these defense counsel had an opportunity to ask Agent Malone whatever they wanted. They never asked him.” Counsel for Mr. Serrato objected. Mr. Negrete’s counsel immediately joined the objection, stating, “That’s prosecutorial—as instructed, no defendant has any obligation to present a single piece of evidence or a single question.” The district court overruled the objection.

The Tenth Circuit assumed without deciding that the government  counsel’s comments were improper. Nevertheless, despite the impropriety, the court did not view the comments in a vacuum. The district court immediately and specifically gave the jury a curative instruction. As for the prosecutor’s comment during his rebuttal argument that the defendants could have asked Agent Malone questions if they had wanted to, the court found that sustaining the objection would have been the better course. However, the Tenth Circuit did not view that manner of responding to the objection as an error of constitutional significance.

Second, Defendants argued that the government failed to prove at trial the existence of one single conspiracy as charged in the indictment, resulting in a fatal variance between the charge and the evidence. A variance arises when an indictment charges a single conspiracy but the evidence presented at trial proves only the existence of multiple conspiracies. A variance is reversible error only if it affects the substantial rights of the accused.

The court concluded that the defendants’ actions, particularly providing assistance to Mr. Negrete in selling methamphetamine provided by Mr. Serrato, were acts in furtherance of the shared objective of distributing drugs received from a common source. The evidence before the jury was substantial enough to allow it to draw the conclusion that there existed an ongoing, facilitative relationship between parties who were aware of the scope of one another’s activities. The Tenth Circuit held that the evidence was sufficient to support the jury’s conviction on the single conspiracy as charged.

Third, Mr. Serrato appealed the district court’s calculation of his offense level under the Federal Sentencing Guidelines, arguing that a two-level increase for offenses involving the importation of methamphetamine should not have been applied. The court concluded that even if the district court erroneously included the importation enhancement in its calculation of the offense level—which the court neither reached nor decided—the error would be harmless.

Fourth, Mr. Serrato challenged the district court’s denial of his motion to suppress evidence obtained from a stop of his vehicle on April 6, 2011. Mr. Serrato argued that the stop was an unreasonable seizure under the Fourth Amendment. The district court found that law enforcement knew from surveillance that cars, particularly out-of-state cars, would come to Mr. Negrete’s house for the purpose of delivering methamphetamine and would park in the garage; and that a delivery of methamphetamine to be later transported to Iowa was scheduled to occur on approximately April 6, 2011. On that date, law enforcement observed a Utah vehicle and an Iowa vehicle at Negrete’s house. They stopped the vehicle with the Utah plates after it left Mr. Negrete’s house to identify the driver whom they suspected of distributing methamphetamine to Mr. Negrete. The stop lasted approximately 10 minutes, and the only information that was obtained was the driver’s (Serrato’s) identification. The district court concluded that these facts established that law enforcement had a reasonable suspicion of Defendant Serrato’s involvement with illegal activity when they stopped him. The Tenth Circuit concluded that these facts gave rise to reasonable and articulable suspicion that Mr. Serrato’s vehicle was involved in drug activity and justified a traffic stop.

Finally, Mr. Negrete was convicted of knowingly using and carrying a firearm during the commission of a drug trafficking crime (namely, conspiracy to possess with intent to distribute and distribution of methamphetamine). Mr. Negrete challenged the sufficiency of evidence, arguing that the government did not place a specific firearm into evidence at trial. Viewing the evidence in the light most favorable to the government, the court held that there was substantial evidence of Mr. Negrete’s guilt. The court did not know why a firearm was not placed in evidence, but the charge was proved by other means. The court was not persuaded that the jury’s determination should be overturned.

AFFIRMED.

Colorado Supreme Court: Defendant’s Challenge of Waiver of Right to Testify Can Only Be Reviewed in Post-Conviction Proceeding

The Colorado Supreme Court issued its opinion in Moore v. People on Monday, February 3, 2014.

Curtis Advisement—Post-Conviction Review—Contemporaneous Objection—Blehm—Knowing, Voluntary, and Intelligent Waiver—Right of Criminal Defendant to Testify.

The Supreme Court held that the court of appeals erred in considering on direct appeal defendant’s challenge to the knowing, voluntary, and intelligent nature of his waiver of the right to testify, and such a challenge may be brought only in a post-conviction proceeding. The Court also held that a defendant need not make a contemporaneous objection to his or her Curtis advisement in the trial court. [See People v. Curtis, 681 P.2d 504 (Colo. 1984), as modified by People v. Blehm, 983 P.2d 779 (Colo. 1999).]

Accordingly, the Court disapproved of and vacated the court of appeals’ discussion and holding regarding the issue of the validity of defendant’s waiver of the right to testify in this case. Otherwise, it upheld the court of appeals’ judgment of conviction.

Summary and full case available here.

Colorado Supreme Court: Defendant’s Challenge of Waiver of Right to Jury Trial in Post-Conviction Proceeding

The Colorado Supreme Court issued its opinion in People v. Walker on Monday, February 3, 2014.

Right to Jury Trial Waiver—Crim.P. 23(a)(5)(II).

In this criminal case, the Supreme Court considered whether defendant Marshall Walker validly waived his right to a jury trial following a trial court advisement that failed to substantially comply with Crim.P. 23(a)(5)(II). The Court held that a defendant may not litigate the validity of such a waiver on direct appeal but must do so in a post-conviction proceeding. The Court further held that, when evaluating a defendant’s waiver of the right to a jury trial, the post-conviction court must determine whether the defendant waived that right knowingly, voluntarily, and intelligently. Finally, the Court affirmed Walker’s indeterminate sentences.

Because the court of appeals should not have reviewed Walker’s challenge regarding the validity of his waiver of the right to a jury trial, the Court vacated its ruling regarding Walker’s challenge to the validity of his jury trial waiver. The Court otherwise upheld the court of appeals’ judgment of conviction. Walker may challenge the validity of his waiver (and its effect on his sentences) in a post-conviction proceeding.

Summary and full case available here.

Colorado Supreme Court: Statute Regarding Presentence Confinement Credit for Felonies Does Not Apply to Probation

The Colorado Supreme Court issued its opinion in People v. Smith on Monday, February 3, 2014.

Felony Probation Sentence—Presentence Confinement Credit.

The Supreme Court held that the statutory provision governing presentence confinement credit for a felony offense, CRS § 18-1.3-405, does not apply to probation, and therefore does not apply to the jail component of a probation sentence. Accordingly, when sentencing an offender to probation with a jail component, the trial court has discretion whether to credit an offender for presentence confinement in full, in part, or not at all. The court of appeals’ decision was reversed and the case was remanded.

Summary and full case available here.

Colorado Court of Appeals: Judgment of Trial Court Affirmed in Child Sexual Assault Case

The Colorado Court of Appeals issued its opinion in People v. Conyac on Thursday, January 30, 2014.

Sexual Assault on a Child—Challenge for Cause—Expert Testimony—Motive—CRE 404(b)—Rape Shield Statute—Prosecutorial Misconduct.

KT informed her mother, LC, that defendant, her stepfather, had molested her. A jury found defendant guilty of three counts of incest; three counts of sexual assault on a child—position of trust; and one count of sexual assault on a child—position of trust pattern of abuse.

On appeal, defendant argued that the trial court erred in denying a challenge for cause to a juror who stated that her niece had been sexually assaulted and murdered by her sister’s live-in boyfriend. The Court of Appeals disagreed. Because the juror also stated she could consider the evidence in the case and make a decision and follow the presumption of innocence, the trial court did not abuse its discretion in denying defendant’s challenge for cause.

Defendant claimed the trial court erroneously allowed two unqualified prosecution witnesses to testify as experts. The Court reviewed the trial court’s admission of expert testimony and found no abuse of discretion.

The Court disagreed that the officer’s testimony was an improper commentary on defendant’s credibility. The Court found that the testimony was an explanation of the officer’s interview tactics.

The Court agreed with the trial court ruling that a defendant’s prior attempt or request to have anal sex with his spouse may be relevant concerning motive in a child sexual abuse trial, provided the evidence otherwise satisfies CRE 404(b). Here, the evidence related to a material fact and it had logical relevance.

Defendant asserted that the court erroneously excluded evidence of the pending dependency and neglect case concerning LC. The Court disagreed, ruling that exclusion of this additional evidence did not contribute to the guilty verdict.

Defendant argued that the trial court erred in excluding evidence of KT’s prior sexual knowledge and familiarity with sexual assault investigations, because the evidence was relevant to rebut the “natural assumption” that KT could only know about such facts from defendant and to support his defense that KT’s allegations were aimed at removing him from the home because she disliked his rules and disciplinary efforts. The Court disagreed, finding that KT was old enough to know about sexual matters regardless of her experience with defendant and there was alternative evidence of KT’s outside sexual knowledge. In addition, the prosecution did not argue that KT was sexually naïve and had no other source of sexual knowledge.

Defendant also claimed that prosecutorial misconduct in the rebuttal closing argument required reversal. The Court disagreed. The prosecutor used rhetorical devices and argument to point out the weaknesses of defendant’s theory of the case. Although the prosecutor made an erroneous statement regarding the beyond-a-reasonable-doubt standard, it was not plain error. The Court also rejected defendant’s challenge of the constitutionality of the rape shield statute and the Sex Offender Lifetime Supervision, as well as the determination of his habitual criminal charges without a jury. The judgment was affirmed.

Summary and full case available here.

SB 14-059: Eliminating Statute of Limitations for Non-Sex Offenses That Accompany Sex Offenses

On Friday, January 10, 2014, Sen. Lucia Guzman introduced SB 14-059 – Concerning Eliminating the Statute of Limitations for Offenses that Accompany Sex Offenses that Are not Subject to a Statute of Limitations. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, certain sex offenses are not subject to a statute of limitations, but accompanying non-sex offenses are subject to a statute of limitations. The bill would eliminate the statute of limitations for those accompanying offenses. On Jan. 27 the Judiciary Committee approved the bill and sent it to the floor for consideration on 2nd Reading; on Jan. 30, the Senate passed the bill on 2nd Reading after adopting amendments.

Since this summary, the Senate passed the bill on Third Reading.

Tenth Circuit: Traffic Stop and Search Did Not Violate Fourth Amendment

The Tenth Circuit Court of Appeals published its opinion in United States v. Harmon on Tuesday, January 21, 2014.

Mr. Harmon, the appellant in this case, was driving a car across New Mexico with drugs in his spare tire. After weaving within his lane and crossing the fog line, Officer Lucero decided to stop the car on suspicion of violating a New Mexico statute that requires a driver to stay in his or her lane. During the traffic stop, the officer discovered the drugs, and Mr. Harmon was arrested and charged with possession with intent to distribute 500 grams or more of cocaine and possession with intent to distribute 50 kilograms of marijuana.

He moved to suppress the evidence before trial, but the district court denied that motion. On appeal, the Tenth Circuit was asked to decide, among other things, whether the stop was reasonable under the Fourth Amendment.

On appeal, Mr. Harmon made the following arguments: (1) that Officer Lucero lacked sufficient reasonable suspicion to make the initial traffic stop; (2) that the scope of the search exceeded the initial justification for the stop; (3) that his motion to reopen ought to have been granted in light of Officer Lucero’s behavior in another case the Officer was involved in; and (4) that he received ineffective assistance of counsel in entering into his plea agreement.

First, the Tenth Circuit agreed with the district court that Officer Lucero had reasonable suspicion to stop the vehicle on suspicion of impairment under New Mexico law. A traffic stop is a seizure for purposes of Fourth Amendment analysis, and the “reasonable suspicion” standard from Terry v. Ohio applies. An investigatory stop is justified at its inception if the specific and articulable facts and rational inferences drawn from those facts give rise to a reasonable suspicion a person has or is committing a crime. The court looks to the totality of circumstances to determine whether reasonable suspicion exists.

The Tenth Circuit held that Officer Lucero had reasonable suspicion that Mr. Harmon violated the New Mexico statute of driving while impaired when the tires of Mr. Harmon’s car crossed the white fog line that separates the right lane of the interstate from the shoulder. The statute states in part that “a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” Under these facts, Officer Lucero could have had a reasonable suspicion of impairment.

Mr. Harmon also argued that Officer Lucero’s investigatory stop exceeded the scope of the initial justification, thereby violating the Fourth Amendment and entitling him to suppression of the drugs discovered in the car. Not only must the initial stop be justified, but the scope of the resulting detention must remain reasonably related to the initial justification. Once the officer has satisfied his initial reasonable suspicions, unless the officer obtains a new and independent basis for suspecting the detained individual of criminal activity, his investigation must end. However, counsel conceded during oral argument that the search was consensual.

Mr. Harmon also contended that the district court improperly denied his motion to reopen and reconsider the previous denial of the motion to suppress. In that motion, he also claimed that evidence regarding Officer Lucero’s omission in a report in an unrelated case constituted impeachment material that should have been disclosed prior to the suppression hearing. The Tenth Circuit found this argument unavailing for several reasons. First, Officer Lucero did not violate the Fourth Amendment in the other case. Second, there was no obligation that the report be exhaustive. Third, law enforcement may at times have legitimate reasons to keep certain information confidential. The court concluded that the district court did not abuse its discretion in deciding that the evidence from the other case did not possess impeachment value and was unlikely to change the outcome of the suppression hearing.

The court rejected Mr. Harmon’s argument that he received ineffective assistance of counsel.

AFFIRMED.

Tenth Circuit: Prisoner in Home Confinement is in Custody of Bureau of Prisons For Purposes of Escape Statute

The Tenth Circuit Court of Appeals published its opinion in United States v. Ko on Friday, January 3, 2013.

In 2009, Michael Ko was sentenced to sixty months’ imprisonment for a federal conviction of conspiracy to distribute methamphetamine. Ko was committed to the custody of the Federal Bureau of Prisons (“BOP”) and served most of his sentence in prison. With six months left in his sentence, however, the BOP transferred Ko to a halfway house. In September 2012, with approximately four months left in his sentence, the BOP transferred Ko to confinement at his home in Leavenworth, Kansas.

Before transferring to his home, Ko signed a Community Based Program Agreement with the BOP. In it, Ko recognized that he would “legally remain in the custody of the Bureau of Prisons and/or the U.S. Attorney General.” He further acknowledged “that failure to remain at the required locations may result in disciplinary action and/or prosecution for escape.” He was required to be at his home by 7 p.m. every night and when he was not, based on an alert from his electronic monitoring bracelet, a complaint charging him with escape under 18 U.S.C. § 751(a) and a warrant for his arrest was issued. A week later, he was arrested in Kansas City.

A federal magistrate judge dismissed the criminal complaint against Ko, concluding that he was not in “custody” within the meaning of § 751 at the time of his alleged escape. The next day, a federal grand jury issued an indictment on the identical charge. On December 12, 2012, a federal grand jury issued a superseding indictment, clarifying that Ko was charged with escape “from the custody of the Attorney General, or his authorized representative,” such custody arising by virtue of his conspiracy conviction.

The district court granted Ko’s motion to dismiss the superseding indictment. The court agreed with the magistrate judge’s earlier holding that § 751 did not contemplate absconding from home confinement and concluded that the rule of lenity required dismissal.

The Tenth Circuit examined related statutes dealing with the BOP’s authority and held that a person is in the BOP’s “custody” while serving the remainder of a sentence in home confinement and is therefore liable for escape. The court reversed the dismissal of the superseding indictment.