United States v. King, William ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-4162
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIAM KING,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 02 CR 40021—J. Phil Gilbert, Judge.
____________
ARGUED APRIL 11, 2003—DECIDED AUGUST 4, 2003
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Before EASTERBROOK, MANION, and DIANE P. WOOD,
Circuit Judges.
DIANE P. WOOD, Circuit Judge. Two legs clothed in
prison garb poking out from behind a roadside sign: that is
what an off-duty corrections officer saw while driving down
a road approximately two miles from the Federal Prison
Camp at Marion, Illinois. Turning around for a second look,
the officer noted William King in an inmate’s uniform walk-
ing along the side of the road heading away from the camp.
The officer confronted King and after a brief discussion
convinced him to accept a ride back to the camp. Upon his
return to the camp, authorities transferred King to a
nearby county jail and, after some delays, indicted King on
2 No. 02-4162
one count of escape in violation of 18 U.S.C. § 751(a). A jury
convicted King, and the district court sentenced him to 30
months’ imprisonment, to be served consecutively to the
sentence for which King was already serving time. King
now challenges both his indictment and sentence. Finding
no error, we affirm the district court in all respects.
I
King was incarcerated in a minimum security prison
“camp” operated by the Federal Bureau of Prisons (BOP)
that houses, among others, smalltime crack dealers like
King. On December 14, 2001, King wandered off, scaling the
modest three-foot fences that set the camp off from sur-
rounding private property and disregarding the conspicu-
ously placed signs that ring the institution and warn
inmates not to stray beyond a designated perimeter. King
had been gone for some seven hours and was walking away
from the camp on a road approximately two miles away
when Correctional Officer Tim Rodgers, who was off-duty
at the time and driving his truck on personal business,
noticed him. King initially tried to hide behind a sign, but
Rodgers, after a second pass, pulled up beside him and
asked him if he needed a ride. King initially accepted the
offer and moved to enter the vehicle, but then he noticed
Rodgers’s uniform. At that point, Rodgers informed King
that the jig was up: King had the choice of trying to run and
almost certainly being caught by U.S. marshals, or he could
get into the truck and be transported back to the camp.
King sensibly chose the latter option.
Upon his return, King was transferred to Williamson
County Jail. However, the BOP did not initiate any admin-
istrative action against King. Instead, it simply notified the
U.S. Marshals Service (the Marshals) of what had trans-
pired and sent written notification to someone in the
Central District of Illinois (presumably to that U.S. Attor-
No. 02-4162 3
ney’s Office, as it had been responsible for prosecuting
King’s original case). No one took any action until late
January 2002, when the Marshals interviewed King and
obtained his side of the story: that he had gone into the
woods to pray and got lost. In early February 2002, the
BOP and the Marshals briefly disputed who would shoulder
the costs of King’s incarceration at the Williamson County
Jail. The Marshals Service claimed that it had not received
word of King’s transfer to Williamson until February 2002,
and thus should not be responsible for the costs prior to
that date. In the end, however, the Marshals agreed to pay.
Two months later, on April 3, 2002, King was indicted on
one count of escape in violation of 18 U.S.C. § 751(a).
At arraignment on the escape charge, King raised a num-
ber of objections, including an alleged violation of his right
to prompt presentment before a magistrate for a probable
cause hearing and his right to a speedy trial. Later, he filed
a motion to dismiss his indictment on those grounds; the
district court denied that motion on July 9, 2002. King
proceeded to trial, hewing throughout to his story that
he had walked into the woods in order to “find God” and
had become lost. The jury found this too much to swallow
and returned a guilty verdict. King’s sentence of 30 months’
imprisonment, which the court imposed on November 26,
2002, was based on a Sentencing Guidelines calculation
reflecting an upward adjustment under U.S.S.G. § 3C1.1 for
King’s perjurious testimony and the court’s rejection of a
seven-point reduction for “voluntary return” under U.S.S.G.
§ 2P1.1(b)(2). King now appeals.
II
King presents three arguments for our consideration. The
first of these is a renewal of his presentment and speedy
trial claims. King argues that his incarceration in the
Williamson County Jail for nearly four months prior to his
4 No. 02-4162
indictment under 18 U.S.C. § 751(a) was a violation of his
rights under the Speedy Trial Act, 18 U.S.C. § 3161, and the
Sixth Amendment. We review legal questions regarding
application of the Speedy Trial Act de novo, but factual
findings are reviewed for clear error. United States v.
Salerno, 108 F.3d 730, 734 (7th Cir. 1997). Our review of
King’s Sixth Amendment speedy-trial claims is governed by
the framework set forth in Doggett v. United States, 505
U.S. 647, 651-52 (1992).
In the usual case, the Speedy Trial Act requires that the
charge in the original complaint “be dismissed or otherwise
dropped,” 18 U.S.C. § 3162(a)(1), if the period between the
date of an arrest and the return of an indictment exceeds
30 days, 18 U.S.C. § 3161(b). We have held, however, that
the Act does not apply to the recapture of an escaped
prisoner because her apprehension does not initiate new
restraints beyond those to which she is subject as a result
of her original conviction. United States v. Zukowski, 851
F.2d 174, 177 (7th Cir. 1988); see also United States v.
Sairafi, 801 F.2d 691, 692 (4th Cir. 1986); United States v.
Stead, 745 F.2d 1170, 1172-73 (8th Cir. 1984). Other de-
cisions hold that the dismissal sanction of § 3162(a)(1)
applies where a suspect can make one of two showings: that
she was formally charged at the time of or following her
arrest but no indictment was returned within 30 days, or
she was subject to some additional continuing restraint
imposed in connection with the charge on which she is
eventually tried. United States v. Hoslett, 998 F.2d 648, 652
(9th Cir. 1993); United States v. Gonzalez-Sandoval, 894
F.2d 1043, 1049 (9th Cir. 1990); United States v. Can-
delaria, 704 F.2d 1129, 1131 (9th Cir. 1983). Under either
of these approaches, because King was not formally charged
with escape until April 3, nor was he subject to any addi-
tional restraints beyond the sentence that had already been
imposed as part of his prior conviction, his claim is a non-
starter.
No. 02-4162 5
King makes only one argument in response: that the
dispute between BOP and the Marshals about who should
foot the bill for his incarceration at the Williamson County
Jail creates an inference that he was really transferred to
the jail to prosecute the escape attempt, rendering the
transfer an arrest within the meaning of the Act. But this
bureaucratic dispute does not have the substantive implica-
tions King claims for it. First, by its very terms, the Act’s
mandatory dismissal sanction is available only “in the case
of [an] individual against whom a complaint is filed charg-
ing such individual with an offense. . . .” 18 U.S.C.
§ 3162(a)(1) (emphasis added); Candelaria, 704 F.2d at
1131. Thus, an inference that the Marshals thought that
King was going to be charged with the escape offense,
because they were paying Williamson County for the costs
of his incarceration, is simply not justified. (The Marshals
Service in any event is not the part of the Justice Depart-
ment with the authority to charge anyone with a crime;
that job belongs to the U.S. Attorneys or the litigating
sections of the Department.) Cf. Zukowski, 851 F.2d at 177(rejecting defendant’s argument that the filing of a “Notice
of Escaped Federal Prisoner” authorized or otherwise
amounted to an arrest within the meaning of the Speedy
Trial Act). Second, we decline the invitation to attach
talismanic significance to the Marshals’ ultimate willing-
ness to bear the costs of King’s incarceration at a more
secure facility. Under 18 U.S.C. § 3621(b), the BOP is
authorized to house a prisoner like King anywhere it deems
appropriate. The statute is silent on the question of who
must shoulder the costs, except for a clause that okays use
of a facility “whether maintained by the Federal Govern-
ment or otherwise.” Id. Here, BOP easily might have
concluded that King had forfeited the right to live in an
open facility, given his demonstrated willingness to leave
the premises, which meant that he had to be moved first
temporarily and then permanently to a more secure place.
6 No. 02-4162
Moving on, King’s Sixth Amendment claim suffers from
two fatal flaws. First, it is well settled that the Sixth
Amendment right to a speedy trial has no application prior
to arrest or indictment. Doggett, 505 U.S. at 654-55; United
States v. MacDonald, 456 U.S. 1, 6-7 (1982); United States
v. Wallace, 326 F.3d 881, 885 (7th Cir. 2003); United States
v. Koller, 956 F.2d 1408, 1413 (7th Cir. 1992); Zukowski,
851 F.2d at 178. Protections against preindictment delay
are more properly handled under the Due Process Clause of
the Fifth Amendment. United States v. Lovasco, 431
U.S. 783, 789 (1977); MacDonald, 456 U.S. at 7; Wallace,
326 F.3d at 886. In King’s case, a formal indictment was
not entered until April 3, 2002. King can prevail only if he
can show that his return to the camp and transfer to the
Williamson County Jail constituted an arrest. This he
cannot do, for the same reasons we have already noted with
respect to King’s claims under the Speedy Trial Act. Once
again, Zukowski is dispositive, for that case rejected the
argument that the apprehension of an escaped prisoner
could constitute an arrest for Sixth Amendment purposes.
851 F.2d at 178. Thus, no Sixth Amendment rights could
have attached in this case until the filing of an indictment
on the escape charge.
Even if King’s apprehension could somehow be char-
acterized as an arrest for Sixth Amendment purposes, King
cannot show that his Sixth Amendment speedy-trial rights
were infringed. In order to do so, he would have to prove
four things: (1) that the delay was uncommonly long; (2)
that the government is more to blame for the delay than the
defendant; (3) that the defendant asserted his right to
a speedy trial; and (4) that he suffered prejudice as a result
of the delay. Doggett, 505 U.S. at 651. But, just to take an
example, King cannot show that he was prejudiced by the
delay, because in order to do so he would have to prove that
his detention at the Williamson County Jail was “more
onerous and restrictive” than at the camp. But, as we have
already noted, the BOP is authorized under 18 U.S.C.
No. 02-4162 7
§ 3621(b) to house King in any facility it deems appropriate
based on his original drug conviction.
King next turns his attention to his sentence, challeng-
ing the district court’s decision not to award a seven-point
reduction in his offense level for voluntary return pursuant
to U.S.S.G. § 2P1.1(b)(2). That Guideline establishes a base
offense level of 13, but it permits a seven-point reduction to
a defendant who: (1) escapes from “non-secure custody,” and
(2) “return[s] voluntarily within ninety-six hours,” so long
as (3) she does not commit any “federal, state, or local
offense punishable by a term of imprisonment of one year
or more.” U.S.S.G. § 2P1.1(b)(2) & comment (n.2). The
district court noted that King tried to hide behind a sign
and appeared to accept a ride away from the camp before he
became aware that the driver of the truck was a correc-
tional officer. This, the court found, was inconsistent with
“voluntary return” as required by § 2P1.1. We review de
novo the district court’s interpretation of the Sentencing
Guidelines, and review the court’s findings of fact for clear
error. United States v. Romero, 189 F.3d 576, 589 (7th Cir.
1999).
King thinks that the district court clearly erred by
refusing to interpret this sequence of events with emphasis
on his willingness to get into Rodgers’s truck and return to
the camp. We disagree, and not just because the standard
of review is a deferential one here. It was only after
Rodgers warned King that King could either return with
Rodgers to the camp or be chased down by U.S. marshals
that King became cooperative. United States v. Pynes,
5 F.3d 1139, 1140-41 (8th Cir. 1993) (refusing to find
voluntary return where a prison escapee surrendered only
when he saw deputy marshals crossing the street to appre-
hend him). It was therefore eminently reasonable for the
district court to conclude that King’s “willingness” to
cooperate was not the type that § 2P1.1(b)(2) had in mind.
8 No. 02-4162
We turn finally to King’s challenge to the district court’s
decision to impose a two-point enhancement for perjury
under U.S.S.G. § 3C1.1. An enhancement under § 3C1.1
may be imposed only if the court finds that the defendant
willfully obstructed or impeded the investigation, prosecu-
tion, or sentencing by way of conduct related to the defen-
dant’s offense of conviction or a closely related offense.
Perjury is specifically listed as one possible means of
obstruction, U.S.S.G. § 3C1.1, comment (n.4). It is defined
for enhancement purposes (and under the federal perjury
statute, 18 U.S.C. § 1621) as giving under oath a mate-
rially false statement willfully, rather than as a result of
confusion, mistake, or faulty memory. United States v.
Dunnigan, 507 U.S. 87, 94 (1993) . We review the adequacy
of the district court’s perjury findings de novo and any
accompanying factual findings for clear error. United States
v. Freitag, 230 F.3d 1019, 1025 (7th Cir. 2000).
At sentencing, the district court focused on King’s testi-
mony about his intention in straying beyond the perimeter
of the camp. The district court noted the discrepancy be-
tween King’s behavior as described by Rodgers and King’s
testimony at trial that he had wandered into the woods to
pray and gotten lost but had every intention of returning.
In finding the enhancement applicable, the court made the
following statement:
This defendant was caught. You know, he can get up on
the witness stand and say that his intentions were to
return, but his actions did not coincide with what his
claimed intentions were. His actions were just the
opposite.
****
[T]he Court heard the testimony. The Court heard the
witness testify. The defendant testified and the Court
believes that the defendant is not telling the truth
when he was testifying.
No. 02-4162 9
I don’t believe for a minute this defendant was lost like
he claimed he was at trial. I think he was intending to
escape, intending to leave. From his actions, from the
testimony of the officer as to—and the Court believes
the officer when he said that the defendant asked him
for a ride. There was no reason for the officer not to be
telling the truth. And, again, the fact that this defen-
dant had walked away. He was walking in the opposite
direction of the penitentiary. He saw this car go back a
couple times, and he wasn’t probably sure who it was,
and he was hiding behind the sign as even he admits
himself. And the Court does not believe the defendant’s
testimony at trial. And that is under 3C1.1, obstruction
or impeding the administration of justice. And the
Court feels the two point enhancement is warranted.
King challenges the district court’s perjury enhancement
from two angles. He first notes that the district court failed
to make formal findings as to each element of perjury. But
the Supreme Court has held that the “independent finding
requirement” is not an exacting one, so long as the district
court makes a finding “that encompasses all of the factual
predicates for a finding of perjury.” Dunnigan, 507 U.S.
at 95; see also United States v. White, 240 F.3d 656, 662
(7th Cir. 2001); United States v. Hickok, 77 F.3d 992, 1008
(7th Cir. 1996). As a result, a district court’s imposition of
an enhancement can withstand scrutiny where the court
determines that the defendant “lied to the judge and jury
about matters crucial to the question of the defendant’s
guilt,” White, 240 F.3d at 662, or is otherwise satisfied that
testimony was “intentionally given, false, and material,”
Freitag, 230 F.3d at 1026.
The district court’s statement from the bench meets that
standard. The district court clearly identified which parts
of King’s testimony it considered to be lies. Compare United
States v. Gage, 183 F.3d 711, 715 (7th Cir. 1999), with
10 No. 02-4162
United States v. McGiffen, 267 F.3d 581, 591-92 (7th Cir.
2001). There is also no doubt about why the court thought
that the lies were material and reflected a specific intent
to obstruct justice, since King’s intent in straying beyond
the perimeter of the Camp was the only disputed point at
trial. This is enough to comply with Dunnigan’s command
to conduct a review of the evidence and make independent
findings, and is also sufficient for us to “discharg[e] our
appellate responsibility to determine whether the court’s
findings are clearly erroneous.” McGiffen, 267 F.3d at 592
(citing United States v. Ledezma, 26 F.3d 636, 645 (6th Cir.
1994)).
Last, King asserts that the evidence was insufficient
to support a finding of perjury. But once again, we see no
error in the district court’s assessment of the facts, clear or
otherwise. Even though not every instance of false testimo-
ny warrants enhancement under § 3C1.1, see Dunnigan,
507 U.S. at 94-95; McGiffen, 267 F.3d at 591; United States
v. Seward, 272 F.3d 831, 838 (7th Cir. 2001), the district
court’s view of the situation was supported by the spe-
cific facts that we have already recounted: King’s attempt
to hide, his evasive behavior, his location, and his rapid
change of behavior once he learned where Rodgers worked.
III
The judgment of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-4-03