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Ninth Circuit:
Escape Conviction Proper for Man Who Left With Consent
Majority Says Inmate Who Says He Was Refused Reentry to Halfway House After Trip to Hospital is Guilty for Failure to Try to Turn Himself in on Subsequent Days; Clifton Dissents, Citing ‘Serious Misgivings’
By Kimber Cooley, associate editor
The Ninth U.S. Circuit Court of Appeals yesterday affirmed, in a 2-1 decision, the escape conviction for a man who failed to return to a halfway house—at which he was serving the last month of a federal sentence—after being granted permission to leave to go to the hospital despite evidence that an employee of the facility denied him reentry after seeking care.
Citing case law establishing that escape from custody is a continuing offense, the court said that his failure to reach out to the halfway house to complete his sentence in the months that followed amounted to a violation.
Appealing the judgment of conviction was Reymundo Arredondo, who at the time he left the facility was serving a federal sentence for a previous escape from custody. It is undisputed that he was permitted by employees at the Ocean View residential reentry center in San Diego to go to the hospital on June 6, 2021 after he awoke with debilitating vertigo and was told to return or check in with the facility by 4 p.m. that day.
While waiting at the hospital, Arredondo says he received a text message from a fellow resident indicating that an employee at the center believed he had escaped. He made multiple calls to Ocean View and returned to the facility before the 4 p.m. deadline.
According to Arredondo, Yesinia Chavarin, an employee of the halfway house, barred him from reentering the facility. Chavarin asserts that Arredondo declined to come inside, but security footage, testimony from U.S. deputy marshals, and Chavarin’s admissions on cross-examination corroborated Arredondo’s claims that she denied him reentry.
Arredondo was arrested in October 2021 while hiking near his mother’s home. He was indicted under 18 U.S.C. §751 and 4082(a) for “willfully failing to remain within the extended limits of his confinement and willfully failing to report as directed to a federally contracted facility.”
Explanation Requested
Following the indictment, he moved for a bill of particulars, asking the Office of the U.S. Attorney to explain whether the indictment was based on his leaving to go to the hospital, failure to return, or both. The prosecutorial agency responded:
“Defendant is alleged to have committed the offense of escape from Federal custody when, upon returning to the…facility at approximately 3:25 PM on June 6, 2021, Defendant then left…without permission and did not return.”
The response also indicated that “[e]scape from Federal custody is a continuing offense” and could be proven based on the defendant’s “fail[ure] to report back to the facility in which he was confined.”
Following a trial, the jury asked the court for clarification as to whether the crime was “being considered today solely for June 6th” or for “every day after.” Then-District Court Judge Larry A. Burns (now a mediator/arbitrator) instructed that “[t]he offense of escape, as charged in the Indictment, is a continuing offense; which means that an escapee can be held liable for the knowing and willful failure to return to custody even after his initial departure.”
Thirty minutes after receiving this instruction, the jury returned a guilty verdict. Burns sentenced the defendant to five years of probation.
Arredondo challenged the judgment of conviction, arguing that the continuing violation theory constituted an amendment to the indictment. Circuit Judges Daniel P. Collins and Kenneth K. Lee signed the memorandum decision affirming the judgment.
Senior Circuit Judge Richard R. Clifton dissented, saying that “[t]he Government’s goal is supposed to be justice, not obtaining a conviction in circumstances where it is far from clear that the defendant actually did anything ‘wrong.’ ”
Rebuttal Theory
Arredondo pointed out that the prosecution’s theory at trial was that he refused to reenter the halfway house and that they only raised the continuing violation argument on rebuttal following a persuasive closing by defense counsel as to the issues with Chavarin’s testimony.
Collins and Lee conceded that this switch in focus likely prompted the jury note, but said:
“Indictments set the outer bounds of conduct for which the defendant can be convicted….So if an indictment specifies that the defendant committed a particular offense in a particular time or place, he cannot be convicted based on evidence that he committed a different offense at a different time or place….Arredondo argues that the indictment here specified that he escaped on June 6 or disobeyed an instruction to return. We disagree.”
Citing U.S. Supreme Court jurisprudence establishing that the crime of escape is a continuing one, they wrote that “the failure to return is part of the escape offense, not a distinct crime, so it was included in the indictment even if not expressly referenced.”
Looking to the facts of the present case, the jurists wrote:
“[T]he indictment…was broad enough to encompass Arredondo’s failure to return, not just his initial escape. The indictment charged him with ‘willfully failing to remain within the extended limits of his confinement and willfully failing to report as directed to a federally contracted facility’ on June 6. Instruction No. 10—to which Arredondo raised no relevant objection—reflected this by instructing jurors that ‘willfully failing to remain within the limits of his confinement’ refers a willful failure ‘to return within the extended limits of his confinement’ and not to a specific direction to report.”
They added:
“The bill of particulars also noted that ‘[e]scape from Federal custody is a continuing offense’ and could be proven on a theory that a defendant ‘fail[ed] to report back to the facility in which he was confined.’ These broad statements fairly include the possibility the government would prove its case based on Arredondo’s failure to return as well as his initial departure. There was thus no variance or amendment.”
Dissenting View
Clifton cited “serious misgivings” about whether the case “should ever have been pursued by the Government,” saying, with an allusion to a 1994 movie about a prison escape:
“The Shawshank Redemption, this case is not.”
He continued:
“But Arredondo was aggressively prosecuted by the U.S. Attorney’s Office, even after it became clear that Chavarin, the prosecution’s key witness, was unreliable. The facts established at trial further indicated that Arredondo had not committed the offense alleged in the indictment. He had not ‘escaped.’
“So, at the last moment, the prosecution changed horses, abandoning the theory that Arredondo had lied about being refused entry and instead arguing that even if he had been turned away, he was nonetheless guilty of the continuing offense of escape because he failed to return to the halfway house in the months that followed his departure….The Government’s change of theory at such a late stage did not permit Arredondo to adequately mount a defense, resulting in a prejudicial variance or constructive amendment of the indictment. Because I would reverse Arredondo’s conviction, I respectfully dissent.”
The judge acknowledged that “Arredondo had been at OceanView…as part of his sentence for a prior escape from a federal halfway house” making the case look like a “slam dunk” based on Chavarin’s initial statements, but said the case began to “unravel.”
Turning to the facts surrounding Arredondo’s return, he said:
“The continuing offense is said to have begun when Arredondo walked out of OceanView after his confrontation with Chavarin. For every day that he did not return, he persisted in his escape. But in order for there to have been a ‘continuing offense,’ there must have been an ‘offense’ in the first place. Arredondo cannot have ‘willfully fail[ed] to remain within the extended limits of his confinement’ if he was ordered to leave. And since no one sought him out or directed him to return thereafter, he did not ‘willfully fail[] to report as directed’…to OceanView. His conviction on this basis did not match the charge laid out in the indictment and thus amounts to a constructive amendment.”
The case is U.S. v. Arredondo, 22-50132.
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