United States v. DeStefano

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).

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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).

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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 ,

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(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

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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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