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USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________________
No. 95-1207
UNITED STATES OF AMERICA,
Appellee,
v.
ANTHONY S. DESTEFANO,
Defendant, Appellant.
__________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge] ___________________
__________________________
Before
Selya, Circuit Judge, _____________
Campbell, Senior Circuit Judge, ____________________
and Cyr, Circuit Judge. _____________
__________________________
Walter F. McKee, with whom Lipman and Katz, P.A. was on ________________ ______________________
brief, for appellant.
Helene Kazanjian, Assistant United States Attorney, with _________________
whom Jay P. McCloskey, United States Attorney, and Jonathan R. _________________ ___________
Chapman, Assistant United States Attorney, were on brief, for the _______
United States.
__________________________
July 12, 1995
__________________________
SELYA, Circuit Judge. A jury in the United States SELYA, Circuit Judge. ______________
District Court for the District of Maine found appellant guilty,
inter alia, of assisting an escape in violation of 18 U.S.C. _____ ____
752(a).1 Appellant says that the district court shunned a jury
instruction crucial to his defense. Discerning no error in the
lower court's eschewal of the requested instruction, we affirm.
I. BACKGROUND I. BACKGROUND
Following Philip DeStefano's arrest and indictment on
federal narcotics charges, the government housed him at a county
jail. DeStefano contacted his younger brother, defendant-
appellant Anthony S. DeStefano, and solicited assistance in a
contemplated escape. He told appellant to park his van at a
specific location at a specific time, and await developments.
Appellant agreed.
At approximately 8:30 p.m. on September 8, 1994, Philip
DeStefano bolted. After another prisoner boosted him over an
interior fence, he scaled an exterior fence topped by barbed
wire, took his leave of the jailhouse grounds, and followed the
____________________
1The statute of conviction provides in pertinent part:
Whoever rescues or attempts to rescue or
instigates, aids or assists the escape or
attempt to escape, of any person arrested
upon a warrant or other process issued under
any law of the United States, or committed to
the custody of the Attorney General or to any
institution or facility by his direction,
shall, if the custody or confinement is by
virtue of an arrest on a charge of felony, or
conviction of any offense, be [punished as
provided by law].
18 U.S.C. 752(a) (1988).
2
railroad tracks for a short distance. As he travelled along the
tracks, he spotted officers conversing casually near the jail.
Realizing that the guards had not yet discovered his departure,
he discarded his distinctively colored prison shirt and sauntered
across a parking lot to appellant's van. The two brothers then
drove toward friendlier climes.
The authorities became aware of the escape at
approximately 11:30 p.m. By then, the DeStefano brothers had a
three-hour head start. Several days later, lawmen captured them
in New York. Federal prosecutors charged appellant with
assisting an escape in violation of 18 U.S.C. 752(a) and with
concealing an escaped prisoner in violation of the harboring
statute, 18 U.S.C. 1072.2
We omit any exegetic account of the intervening
proceedings and cut directly to the heart of the appeal.
Appellant pleaded not guilty and stood trial. At trial's end, he
requested the following jury instruction:
When the physical control has ended by flight
beyond immediate active pursuit, the escape
is complete. Any assistance beyond this
point is not aiding and abetting.
The district court refused to give this instruction in haec ____
____________________
2The harboring statute provides:
Whoever willfully harbors or conceals
any prisoner after his escape from the
custody of the Attorney General or from a
Federal penal or correctional institution,
shall be imprisoned not more than three
years.
18 U.S.C. 1072 (1988).
3
verba, instead telling the jury that: _____
The crime of aiding or assisting an escape
cannot occur after the escapee reaches
temporary safety. After that, aid or
assistance to a fugitive is no longer aiding
or assisting his escape, whatever else it
might be.
Appellant took a timeous objection to the charge, see Fed. R. ___
Crim. P. 30, on the ground that the court should have given the
"flight beyond immediate active pursuit" instruction, and that
its failure to do so undermined the defense.
The jury found appellant guilty on both counts
(assisting an escape and harboring an escapee). Following
imposition of sentence, appellant perfected this appeal. He
challenges only his conviction under 18 U.S.C. 752(a).
II. DISCUSSION II. DISCUSSION
This is a rifle-shot appeal that draws a bead on the
district court's refusal to embrace the "flight beyond immediate
active pursuit" instruction. The standard of review is ironclad:
"The trial court's refusal to give a particular instruction
constitutes reversible error only if the requested instruction
was (1) correct as a matter of substantive law, (2) not
substantially incorporated into the charge as rendered, and (3)
integral to an important point in the case." United States v. ______________
McGill, 953 F.2d 10, 13 (1st Cir. 1992); accord United States v. ______ ______ _____________
Nason, 9 F.3d 155, 161 (1st Cir. 1993), cert. denied, 114 S. Ct. _____ _____ ______
1331 (1994); United States v. Gibson, 726 F.2d 869, 874 (1st ______________ ______
Cir.), cert. denied, 466 U.S. 960 (1984). _____ ______
To be sure, a defendant has a right to an instruction
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on his theory of the case as long as that theory is valid and is
supported by the record. See United States v. Flores, 968 F.2d ___ ______________ ______
1366, 1367 (1st Cir. 1992). But, that right is not a license "to
put words in the judge's mouth." McGill, 953 F.2d at 12. Jury ______
instructions are intended to furnish a set of directions
composing, in the aggregate, the proper legal standards to be
applied by lay jurors in determining the issues that they must
resolve in a particular case. See Calhoun v. Acme Cleveland ___ _______ ______________
Corp., 798 F.2d 559, 564 (1st Cir. 1986). Provided that the _____
charge satisfies this need, the court's choice of language is
largely a matter of discretion.
The rule in this circuit, therefore, is that "[s]o long
as the charge sufficiently conveys the defendant's theory, it
need not parrot the exact language that the defendant prefers."
McGill, 953 F.2d at 12; accord United States v. Mejia-Lozano, 829 ______ ______ _____________ ____________
F.2d 268, 272 (1st Cir. 1987). By the same token, the judge is
not obligated to instruct on every particular that conceivably
might be of interest to the jury. See United States v. Nazzaro, ___ _____________ _______
889 F.2d 1158, 1167 (1st Cir. 1989); United States v. Rule _____________ ____
Indus., Inc., 878 F.2d 535, 543 (1st Cir. 1989). On appeal, the ____________
central inquiry reduces to whether, taking the charge as a whole,
see Francis v. Franklin, 471 U.S. 307, 315 (1985); Cupp v. ___ _______ ________ ____
Naughten, 414 U.S. 141, 146-47 (1973), the instructions ________
adequately illuminate the law applicable to the controlling
issues in the case without unduly complicating matters or
misleading the jury. See United States v. Alzanki, ___ F.3d ___, ___ _____________ _______
5
___ (1st Cir. 1995) [No. 94-1645, slip op. at 8]; Davet v. _____
Maccarone, 973 F.2d 22, 26 (1st Cir. 1992) (listing other cases). _________
Predictability and consistency are important in the
law, and judges tend to use the same phrases over and over in
explaining particular concepts to jurors. Appellant argues that
he wanted no more than to have the district court use time-
honored language here, and that the court should have yielded to
his entreaty. He points to three precedents that he says cast
the court's disavowal of the "flight beyond immediate active
pursuit" articulation into disrepute. We examine each of these
cases.
In Orth v. United States, 252 F. 566 (4th Cir. 1918), a ____ _____________
prisoner fled from a Georgia penitentiary. Four weeks later, he
appeared on the defendant's doorstep in South Carolina, seeking
asylum. The defendant lent a helping hand. A jury subsequently
convicted Orth on a charge of assisting a convict to escape.3
The Fourth Circuit reversed, holding that by the time Orth became
involved, the event of escape had long since concluded. The
court stated: "When the physical control [over the prisoner] has
been ended by [his] flight beyond immediate active pursuit, the
escape is complete." Id. at 568. Once that point has passed, ___
assisting the fugitive can no longer be considered assisting the
escape. See id. A second case that appellant cherishes, United ___ ___ ______
States v. Vowiell, 869 F.2d 1264 (9th Cir. 1989), embraced the ______ _______
____________________
3The conviction eventuated under an earlier, substantially
similar version of the present 18 U.S.C. 752(a).
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reasoning of the Orth court in connection with a discussion of ____
the issue as it relates to the coconspirator exception to the
hearsay rule. The Ninth Circuit agreed that "[t]he crime of
aiding an escape terminates once the escapee has reached
temporary safety," and defined "temporary safety" by reiterating
Orth's "flight beyond immediate active pursuit" language. Id. at ____ ___
1268 (quoting Orth, 252 F. at 568). ____
The crown jewel in appellant's trilogy is United States _____________
v. Smithers, 27 F.3d 142 (5th Cir. 1994). Smithers, charged with ________
aiding an escape under section 752(a), requested a jury
instruction that contained the "flight beyond immediate active
pursuit" language. The trial court denied the request, choosing
instead to charge according to the letter of the statute itself.
Following a guilty verdict, Smithers appealed. The Fifth Circuit
vacated the conviction, holding that defendant's suggested
instruction was substantively correct and that the trial court's
failure to give it impermissibly impaired Smithers' ability to
raise his theory of defense. See id. at 145-46. ___ ___
Although these cases bear a family resemblance to the
case at bar, they are at best cousins once or twice removed. In
all three cases, unlike here, the relevant assistance occurred
days after the end of any immediate pursuit, at a location far
removed from the place of liberation. See Smithers, 27 F.3d at ___ ________
143-44; Vowiell, 869 F.2d at 1265-66; Orth, 252 F. at 568. Over _______ ____
and above this salient distinction, Orth is of little help ____
because the court used the phrase that appellant extols not in an
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effort to formulate a model jury instruction, but in the course
of explaining why, on the facts of that case, the defendant's ___________________________
conviction could not stand.4 Vowiell is cut from the same _______
cloth. As in Orth, the court gave no consideration either to how ____
jury instructions should be worded or to what language would best
fit a case in which pursuit had not yet been mounted when the
defendant first aided the escapee. Smithers, though closer to ________
the mark, is also inapposite. While the opinion memorializes the
need to give a jury instruction regarding the limits to be placed
on a charge of aiding an escape, it does not address what
language is most fitting when, as now, there is no evidence of
any immediate, active pursuit. Nor does the Smithers court ________
explore the pros and cons of using language such as appellant
tenders as opposed to the "temporary safety" language preferred
by the court below.
Since these precedents are not dispositive, we take a
fresh look. The linchpin of a charge under section 752(a) and
the feature that sets it apart from a charge of harboring under
section 1072 is the showing that the accused aided or assisted
an escape rather than merely aiding or assisting an escapee. ______ _______
This requires, of course, that a line be drawn separating the
____________________
4The circumstances of Orth are such that, on any reasonable ____
view of the statute, the defendant's conviction for assisting an
escape could not be justified. The fugitive had been at large
almost a month and had traveled through two states before the
defendant lifted a finger to help him. See 252 F. at 567. These ___
facts placed the defendant well outside the outer boundary of any
charge of aiding and abetting the escape regardless of how the
court's opinion might be phrased.
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escape a discrete event from what may follow thereafter.
This task is perhaps more difficult than it appears at first
blush, as the term "escape" which, after all, means nothing
more or less than "absenting oneself from custody without
permission," United States v. Bailey, 444 U.S. 394, 407 (1980) _____________ ______
encompasses a wide range of scenarios. Moreover, the general
definition, without the insertion of limiting language, would
make breaking out of prison a virtually endless continuum, so
that any person who assisted an escapee, no matter how long after
the event or how distant from the place of immurement, would be
guilty of violating section 752(a). To avoid the obvious
absurdity inherent in this result, the jury instruction in a
criminal prosecution brought under section 752(a) must draw a
clear, comprehensible line between the discrete event that is,
the escape and what may follow.
We think that the court's decision here to frame its
instruction in terms of "reach[ing] temporary safety" furnished
the necessary guidance to the jury.5 The instruction described
an ascertainable point at which the jury might find that aiding
the escape ended and harboring began. Thus, the delivered charge
____________________
5Our confidence in the term is bolstered by its familiarity;
the term is regularly applied in other analogous criminal
contexts. See, e.g., People v. Fierro, 821 P.2d 1302, 1326 (Cal. ___ ____ ______ ______
1991) (explaining that "the crime of robbery is not complete
until the robber has won his way to a place of temporary
safety"), cert. denied, 113 S. Ct. 303 (1992); State v. Hearron, _____ ______ _____ _______
619 P.2d 1157, 1159 (Kan. 1980) (holding that a homicide falls
within the felony-murder rule if committed during escape or
attempted escape, so long as the perpetrator has not yet reached
a point of temporary safety). Thus, the term's common law
history informs the use of it here.
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was well within the realm of the trial court's discretion. See ___
McGill, 953 F.2d at 13; see also Concise Oil & Gas Partnership v. ______ ___ ____ _____________________________
Louisiana Intrastate Gas Corp., 986 F.2d 1463, 1474 (5th Cir. _______________________________
1993) ("In instructing the jury, district judges may select their
own words and charge in their own styles."). And, moreover, the
court's language seems particularly apt when contrasted with
appellant's alternative formulation. Where, as here, there is no
evidence that pursuit had been mounted at or before the time the
defendant rendered assistance, an instruction that centers on
"flight beyond immediate active pursuit" risks confusing and
confounding the jury without supplying a scintilla of additional
enlightment.
That ends the matter. Clear, easily understood jury
instructions are vitally important in assuring that jurors grasp
subtle or highly nuanced legal concepts. Partially for this
reason, the law is settled that a trial court may appropriately
refuse to give a proffered jury instruction that is incorrect,
misleading, or incomplete in some material respect. See United ___ ______
States v. David, 940 F.2d 722, 738 (1st Cir. 1991), cert. denied, ______ _____ _____ ______
504 U.S. 955 (1992). So it is here.
We need go no further. Because the court's charge
constituted a correct statement of the law, and would not have
been improved by the substitution or insertion of the proposed
instruction,6 we reject appellant's lone assignment of error.
____________________
6We should not be understood either as banishing
instructions featuring "flight beyond immediate active pursuit,"
or as relegating such instructions to the scrap heap. The
10
Affirmed. Affirmed. ________
____________________
language may have a legitimate place in certain situations, such
as in helping the jury to visualize the issue in a case in which,
unlike this one, immediate active pursuit is underway at the time
the defendant renders aid.
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Document Info
Docket Number： 95-1207
Filed Date： 7/12/1995
Precedential Status： Precedential
Modified Date： 9/21/2015