900 F. 2d 263 - United States v. Ilengelkei
900 F2d 263 United States v. Ilengelkei
900 F.2d 263
Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Joseph Erie ILENGELKEI, Defendant-Appellant.
No. 89-10316.
United States Court of Appeals, Ninth Circuit.
Submitted April 12, 1990.*
Decided April 20, 1990.
Before FARRIS, PREGERSON and RYMER, Circuit Judges.
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MEMORANDUM**
Defendant Ilengelkei was convicted of harboring and concealing an escaped federal prisoner, in violation of 18 U.S.C. Sec. 1072. Ilengelkei appeals that decision, claiming he did not violate section 1072 because the escapee he harbored was not physically in federal custody at the time he escaped. Federal officials had transferred the escapee, Felix Mariur, to the custody of local officials, pursuant to a writ of habeas corpus ad testificandum, to allow Mariur to testify in a local murder trial. Ilengelkei is incorrect in his legal conclusion that Mariur was not in federal custody.
The federal government does not lose jurisdiction over a federal prisoner if it, as a matter of comity, produces a prisoner into state custody. See Murray v. United States, 334 F.2d 616 (9th Cir.1964), cert. denied, 380 U.S. 917 (1965). A prisoner need not be in actual physical custody of a federal official in order to be in the "custody" of the Attorney General. See Hardwick v. United States, 296 F.2d 24 (9th Cir.1961). Thus, "an escape from a state institution is an escape from the custody of the Attorney General if the prisoner has been confined there under the authority of the Attorney General." United States v. Eaglin, 571 F.2d 1069, 1073 (9th Cir.1977) (a prisoner who escaped from a state penitentiary while serving concurrent state and federal sentences had violated the federal escape statute), cert. denied, 435 U.S. 906 (1978).
Mariur was in the "custody" of the Attorney General when he escaped. Ilengelkei harbored this fugitive and thereby violated 18 U.S.C. Sec. 1072.
AFFIRMED.