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Harboring—18 USC 1072—Third Element—Escape

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 "custody of the Attorney General" for purposes of 18 U.S.C. § 1072. The courts have unanimously held that a federal prisoner who escapes from a non-federal facility is in the custody of the Attorney General for purposes of the harboring statute. In United States v. Howard, 545 F.2d 1044 (6th Cir. 1976), the prisoner had been incarcerated in a local county jail by the U.S. Marshal. The court held 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. at 1045. Similarly in United States v. Hobson, 519 F.2d 765 (9th Cir.), cert. denied, 423 U.S. 931 (1975), the prisoner, who had been convicted of a federal offense, escaped from a state prison. The state facility had been 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 Attorney General to designate as a place of confinement any appropriate facility "whether maintained by the Federal Government or otherwise." The court noted that the term "custody" in Section 1072 is not limited to actual physical custody, but denotes a type of legal custody which remains in the Attorney General even though the prisoner is assigned to an institution over which the Department of Justice has no control. Accord, Frazier v. United States, 339 F.2d 745, 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. 1977), the prisoner had failed to return from a four-hour social pass granted by the Oregon State Penitentiary where he was confined, pursuant to a contract with the Federal Government. The court agreed that an escape from a state institution is 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 the custody of the Attorney General continues despite the unsupervised nature of the temporary release from confinement. Id. at 1073.