Harboring18 USC 1072Third ElementEscape
A number of courts have considered the question of whether a federal
prisoner who is incarcerated in a state or local institution is in the
of the Attorney General" for purposes of 18 U.S.C. § 1072. The courts
unanimously held that a federal prisoner who escapes from a non-federal
is in the custody of the Attorney General for purposes of the harboring
In United States v. Howard, 545 F.2d 1044 (6th Cir. 1976), the
had been incarcerated in a local county jail by the U.S. Marshal. The court
that regardless of where the prisoner was confined, commitment to the U.S.
Marshal can only be construed as a commitment to the Attorney General.
Otherwise, the court reasoned, the words "from the custody of the Attorney
General or" in Section 1072 would be entirely without meaning. Id.
Similarly in United States v. Hobson, 519 F.2d 765 (9th Cir.),
cert. denied, 423 U.S. 931 (1975), the prisoner, who had been
of a federal offense, escaped from a state prison. The state facility had
designated by the Attorney General as the prisoner's place of confinement,
pursuant to 18 U.S.C. § 4082(b), which at that time authorized the
General to designate as a place of confinement any appropriate facility
maintained by the Federal Government or otherwise." The court noted that
term "custody" in Section 1072 is not limited to actual physical custody,
denotes a type of legal custody which remains in the Attorney General even
the prisoner is assigned to an institution over which the Department of
has no control. Accord, Frazier v. United States, 339 F.2d
746 (1964); Tucker v. United States, 251 F.2d 794 (9th Cir. 1958).
Finally, in United States v. Eaglin, 571 F.2d 1069 (9th Cir.
the prisoner had failed to return from a four-hour social pass granted by
Oregon State Penitentiary where he was confined, pursuant to a contract with
Federal Government. The court agreed that an escape from a state institution
an escape from the custody of the Attorney General if the prisoner had been
confined there under the authority of the Attorney General, and held that
custody of the Attorney General continues despite the unsupervised nature of
temporary release from confinement. Id. at 1073.