United States v. Barton Hans Peterson ( 1979 )

CHAMBERS, Circuit Judge,

dissenting:

The indictment charges that Peterson had been ordered to the custody of the attorney general and that “he did unlawfully and wilfully escape from such custody.” Peterson’s motion for judgment of acquittal (Rule 29, F.R.Cr.P.) should have been granted. The government did not prove escape from “such” custody.

The court had custody and the defendant may have unlawfully fled from that custody. But this is not what the government charged in the indictment. We cannot ignore the fact of the court’s custody for the convenience of saying that there was some sort of constructive attorney general precustody.

I would reverse.