Richard Friedman, Appellate Section, Criminal Division, United States Department of Justice, (Barry R. Grissom, United States Attorney, James A. Brown, Assistant U.S. Attorney, District of Kansas, and Mythili Raman, Acting Assistant Attorney General, and Denis J. McInerney, Acting Deputy Assistant Attorney General, with him on the briefs), Washington, D.C., for Plaintiff-Appellant.
Thomas Bartee, Assistant Federal Public Defender (Cyd Gilman, Federal Public Defender, with him on the brief), Kansas City, KS, for Defendant-Appellee.
Before KELLY, EBEL, and BACHARACH, Circuit Judges.
KELLY, Circuit Judge.
The government appeals from a district court order dismissing a superseding indictment against Defendant-Appellee Michael Ko. Mr. Ko was subject to home confinement; the indictment charged him with escape under 18 U.S.C. § 751(a) for failing to return to his residence. Our jurisdiction arises under 18 U.S.C. § 3731, and we reverse.
In 2009, Mr. Ko was sentenced to sixty months' imprisonment for a federal conviction of conspiracy to distribute methamphetamine. Mr. 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 Mr. Ko to the Grossman Community Corrections Center, a halfway house in Leavenworth, Kansas. In September 2012, with approximately four months left in his sentence, the BOP transferred Mr. Ko to confinement at his home in Leavenworth.
Before transferring to his home, Mr. Ko signed a Community Based Program Agreement with the BOP. In it, Mr. Ko recognized that, even though he enjoyed relative freedom in his own home, he would " legally remain in the custody of the Bureau of Prisons and/or the U.S. Attorney General." Aplt.App. 31. He further acknowledged " that failure to remain at the required locations may result in disciplinary action and/or prosecution for escape." Id. He agreed to wear an electronic monitoring bracelet, to remain at his residence except for employment, and to return home by 7:00 p.m. each day.
At approximately 7:25 p.m. on October 12, 2012, Mr. Ko's monitoring bracelet
alerted the Grossman Center that he had failed to return to his residence. After multiple unsuccessful attempts to locate or contact Mr. Ko, the Grossman Center contacted the U.S. Marshals, resulting in a complaint charging Mr. Ko with escape under 18 U.S.C. § 751(a) and a warrant for his arrest. Aplt.App. 9-12, 13. On October 19, 2012, Mr. Ko was arrested in Kansas City.
On October 30, 2012, a federal magistrate judge dismissed the criminal complaint against Mr. Ko, concluding that Mr. Ko was not in " custody" within the meaning of § 751 at the time of his alleged escape. Aplt.App. 19. The next day, a federal grand jury indicted Mr. Ko on an identical charge. Aplt.App. 20. On December 12, 2012, a federal grand jury issued a superseding indictment, clarifying that Mr. 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. Aplt.App. 23.
On February 6, 2013, the district court granted Mr. Ko's motion to dismiss the superseding indictment. Aplt.App. 33-34. The court agreed with the magistrate judge's earlier holding that § 751 did not contemplate absconding from home confinement. Id. at 32-33. The court concluded that, in " the absence of Supreme Court or Tenth Circuit ...