United States of America, Plaintiff-appellee, v. Rick Allen Apker, Defendant-appellant, 419 F.2d 388 (9th Cir. 1969)

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U.S. Court of Appeals for the Ninth Circuit - 419 F.2d 388 (9th Cir. 1969) December 10, 1969

David M. Rothman (argued), Los Angeles, Cal., for defendant-appellant.

Michael J. Lightfoot (argued), Robert L. Brosio, Asst. U. S. Attys., Wm. Matthew Byrne, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before ELY and TRASK, Circuit Judges, and PENCE,*  District Judge.


Apker, an inmate of a Federal Correctional Institution was charged, tried by jury, convicted of Attempted Escape under 18 U.S.C. § 751 and sentenced therefor to 45 days imprisonment, to run consecutively to any other sentences previously imposed.

The evidence before the jury was more than sufficient to support its verdict that Apker was unequivocally activating what may have well been a foolhardy attempt to escape, when he was caught. This court cannot fault that verdict.

That Apker, after being caught, may, thereupon and therefor have been placed in segregated confinement by the institutional officials for 37 days and subsequently convicted and sentenced to confinement by a Federal court for the same acts does not constitute "double jeopardy" under the Fifth Amendment. United States v. Shapiro, 383 F.2d 680, 683 (7th Cir. 1967); Rush v. United States, 290 F.2d 709, 710 (5th Cir. 1961); Mullican v. United States, 252 F.2d 398, 400, 70 A.L.R.2d 1217 (5th Cir. 1958); Patterson v. United States, 183 F.2d 327, 328 (4th Cir. 1950); Pagliaro v. Cox, 143 F.2d 900, 901 (8th Cir. 1944).



Hon. Martin Pence, Chief Judge, United States District Court, District of Hawaii, sitting by designation