UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4561
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FRANK BALLARD SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief District
Judge. (1:05-cr-00062-jpj)
Submitted: May 4, 2007 Decided: June 4, 2007
Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael A. Bragg, BRAGG LAW, PLC, Abingdon, Virginia, for
Appellant. Dennis H. Lee, Special Assistant United States
Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Frank Ballard Smith appeals his conviction after a jury
trial of one count of attempted escape in violation of 18 U.S.C.
§ 751(a) (2000), and his resulting thirty-seven month sentence.
Smith claims his due process rights were violated when the district
court prevented him from arguing to the jury that the Government
failed to prove he was in federal custody under § 751(a).
According to Smith, the district court’s refusal to allow him to
argue this point to the jury was essentially a directed verdict as
to that element of the offense. Smith also argues the district
court erred in denying his motions for judgment of acquittal
because he was never in federal “custody” as that term is defined
under § 751(a). We affirm Smith’s conviction and sentence.
While Smith was serving a state prison sentence, the
United States District Court for the Western District of Virginia
issued a writ of habeas corpus ad prosequendum for Smith. The writ
was executed, and the Government took possession of Smith pursuant
to a magistrate judge’s order of detention. While awaiting
disposition of the federal charges against him, Smith attempted to
escape from the facility in which he was housed.
At the close of the Government’s evidence, Smith moved
for a judgment of acquittal arguing that, under United States v.
Evans, 159 F.3d 908 (4th Cir. 1998), he remained in state custody
at the time of his escape attempt and therefore was not in federal
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“custody” as that term is defined by § 751(a). The district court
denied the motion and ordered that Smith could not argue to the
jury “any factual question, at least based on the evidence
presented to me so far,” regarding whether he was in federal
“custody” at the time of his escape attempt.
After his conviction, Smith filed another motion for
judgment of acquittal or, in the alternative, for a new trial,
again arguing he was not in federal “custody” at the time of his
escape attempt. The district court denied the motion, and Smith
timely appealed.
“The district court is afforded broad discretion in
controlling closing arguments and is only to be reversed when there
is a clear abuse of its discretion. ‘A reversal may be required
where counsel is restricted within unreasonable bounds.’” See
United States v. Wills, 346 F.3d 476, 491-92 (4th Cir. 2003)
(citing United States v. Rhynes, 196 F.3d 207, 236 (4th Cir.
1999)). We conclude the district court did not err when it
prevented Smith from arguing to the jury that he was in state and
not federal custody as required by § 751(a).
To establish federal custody under § 751(a), the
Government was required to prove Smith was: “(1) in the custody of
the Attorney General or her authorized representative; (2) confined
in an institution by direction of the Attorney General; (3) in
custody under or by virtue of any process issued under the laws of
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the United States by any court, judge, or magistrate; or (4) in the
custody of an officer or employee of the United States pursuant to
a lawful arrest.” Evans, 159 F.3d at 910.
At trial, the Government introduced evidence that Smith
was directed by a magistrate judge to be “committed to the custody
of the Attorney General or his designated representative for
confinement” at the time of his escape attempt. Although Smith
insinuates on appeal he was entirely forbidden from arguing the
custody issue to the jury, the record reveals Smith was prevented
from arguing facts regarding when federal custody begins pursuant
to a writ of habeas corpus ad prosequendum.
Because it is evident Smith wished to argue to the jury
that the Government’s legal definition of “custody” was incorrect
and that this legal argument would only have confused the jury, we
conclude the district court did not abuse its discretion in
limiting Smith in his closing argument.
Smith also claims the district court erred in denying his
motions for judgment of acquittal because, under Evans, he was
merely “loaned” to the federal system by Virginia and therefore
remained in state custody. We review the denial of a Rule 29
motion de novo. See United States v. Alerre, 430 F.3d 681, 693
(4th Cir. 2005), cert. denied, 126 S. Ct. 1925 (2006). We conclude
the district court correctly denied Smith’s motions for judgment of
acquittal.
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In Evans, a federal prisoner was loaned to the custody of
the state pursuant to a writ of habeas corpus ad prosequendum.
Evans, 159 F.3d at 909. Evans escaped while in state custody and
a jury subsequently convicted him of a violation of § 751(a). Id.
at 910. In affirming Evans’ conviction, this court rejected Evans’
argument that the writ of habeas corpus ad prosequendum effectuated
a change in custody and that the federal government, having
transferred him to state custody, relinquished its custody over
him. Id. at 910-13. Rather, this court held that the sending
jurisdiction does not relinquish its custodial authority over a
prisoner for purposes of escape jurisdiction when a writ of habeas
corpus ad prosequendum is effectuated. Id. at 912.
Although Evans decided that federal authorities do not
relinquish custody by loaning out a prisoner on a writ of habeas
corpus ad prosequendum, it did not hold that where, as here, a
state loans a prisoner to federal authorities on the authority of
such a writ, the federal government does not obtain custody of the
prisoner. Rather, under the plain meaning of the word “custody,”
when a state prisoner is physically held by federal authorities
awaiting prosecution of a federal offense, it belies logic to claim
the federal authorities do not have “custody” of the prisoner.
Accordingly, we conclude the district court did not err when it
denied Smith’s motions for judgment of acquittal.
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Based on the foregoing, we affirm Smith’s conviction and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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