UNITED STATES of America, Plaintiff-Appellee, v. Edward Skene OVERAKER, Defendant-Appellant

United States Court of Appeals for the Ninth Circuit1985-07-23No. No. 84-1320

766 F.2d 1326

Summary · law.co

Holding. The court affirmed the district court's denial of the defendant's motion for judgment of acquittal, holding that the District of Arizona had proper venue for the escape prosecution because the defendant's failure to report to the Arizona prison camp constituted the offense in that district.

Edward Overaker was convicted in Arizona federal court of escape for failing to report to a federal prison camp in Safford, Arizona, as required by his transfer order from a Minnesota facility. He appealed, arguing that Arizona lacked proper venue because he was never physically present in Arizona when the offense occurred—he was found in Missouri weeks after failing to report. The court rejected this argument, finding venue proper because the location of a crime involving a failure to perform a legally required act is determined by where that act was supposed to occur, not where the defendant was found.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether Arizona had proper venue for prosecuting an escape offense when the defendant never physically reported to the Arizona facility
Whether venue for a failure-to-act crime is determined by the location where the act was required or the defendant's physical location
Whether a defendant in constructive custody of out-of-state authorities creates venue in that state

Procedural posture

The defendant appealed from the district court's denial of his Rule 29 motion for judgment of acquittal on venue grounds following his conviction for escape in the District of Arizona.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

BEEZER, Circuit Judge:

Edward Overaker was convicted of escape in the District of Arizona for failing to report to a federal prison camp there. He appeals from the district court’s order denying his motion for a judgment of acquittal due to improper venue. We affirm.

FACTS

Overaker was serving a sentence for bank robbery at the federal prison in Sandstone, Minnesota. On May 22, 1984, he was permitted an unescorted transfer to a federal prison camp in Safford, Arizona. He failed to report as required by the transfer order. On June 12, a United States Marshal found Overaker in Gladstone, Missouri.

Overaker was indicted and convicted in the District of Arizona for escape from the custody of the Safford, Arizona prison camp. See 18 U.S.C. § 751. His motions for a judgment of acquittal were denied. See Fed.R.Crim.P. 29. Overaker timely appeals.

ANALYSIS

The parties dispute the standard of review. Overaker urges us to determine whether the evidence, viewed in the light most favorable to the government, permits a rational conclusion of guilt beyond a reasonable doubt. See United States v. Ochoa-Torres, 626 F.2d 689, 691 (9th Cir.1980); United States v. Figueroa-Paz, 468 F.2d 1055, 1058 (9th Cir.1972); United States v. Nelson, 419 F.2d 1237, 1241-45 (9th Cir.1969). The government suggests that de novo review is proper because the facts are not in dispute and we are required to determine a question of law. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, — U.S. -, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). We conclude that Overaker’s claim fails under either standard of review.

Overaker next contends that Arizona was not the proper venue for his prosecution because he was not confined in Arizona when the offense occurred. This argument lacks merit for two reasons.

First, Overaker was in the constructive custody of the Arizona authorities as soon as he was ordered to report to them. See United States v. Peterson, 592 F.2d 1035, 1037 (9th Cir.1979).

Second, proper venue is based on the location of the offense, not on the personal presence of the offender. Travis v. United States, 364 U.S. 631, 634, 81 S.Ct. 358, 360, 5 L.Ed.2d 340 (1961); Fed.R.Crim.P. 18. The Supreme Court has held that “where the crime charged is a failure to do a legally required act, the place fixed for its performance fixes the situs of the crime.” Johnston v. United States, 351 U.S. 215, 220, 76 S.Ct. 739, 742, 100 L.Ed. 1097 (1956). In Johnston, two conscientious objectors failed to report for alternative service at hospitals outside the judicial districts where they resided. They were indicted in the districts where the hospitals were located. The Supreme Court upheld the choice of venue. Id. at 222-23, 76 S.Ct. at 743.

The Eighth Circuit has applied Johnston ’s reasoning to an escape case very similar to the case at bar. In United States v. Wray, 608 F.2d 722 (8th Cir.1979), cert. denied, 444 U.S. 1048, 100 S.Ct. 739, 62 L.Ed.2d 735 (1980), the defendant was released for an unescorted transfer from a federal correctional facility in California to a community treatment center in Kansas City, Missouri. The defendant failed to report to the treatment center and never physically entered the Western District of Missouri, where he was subsequently indicted. The Eighth Circuit held that venue was properly laid in the Western District of Missouri because the defendant’s failure to report occurred there. United States v. Wray, 608 F.2d at 725. See also United States v. Clinton, 574 F.2d 464, 465 (9th Cir.) (venue for failure to file a tax return is proper either in the district where the defendant resides or in the district where the return should have been filed), cert. denied, 439 U.S. 830, 99 S.Ct. 106, 58 L.Ed.2d 124 (1978).

We hold that venue was proper in the District of Arizona because Overaker failed to report there as ordered.

CONCLUSION

The order denying judgment of acquittal is AFFIRMED.