United States of America, Appellee, v. James Wayne Howard, A/k/a Mark Wayne Howard, Appellant, 654 F.2d 522 (8th Cir. 1981)

James Wayne Howard was convicted of burglary by the State of Nebraska in 1975 and confined to the penitentiary in Lincoln, Nebraska. In January 1980 Howard was transferred by Nebraska to the Cheyenne River Swift Bird Project, a minimum security facility located in South Dakota and operated by Native Americans. On May 25, 1980, Howard was issued a temporary pass from the project, but he failed to return on time. Howard was arrested on August 5, 1980, and after a jury trial convicted of violating the Assimilative Crimes Act (ACA), 18 U.S.C. § 13, 18 U.S.C. § 1152, and S.D. Compiled Laws Ann. § 22-11A-2 by escaping from the Swift Bird Project.

Howard appeals from his conviction asserting that (1) jurisdiction will not lie under the ACA for the crime of escape, (2) his escape was an offense against the person or property of other Indians within the meaning of 18 U.S.C. § 1152 and thus not punishable under the ACA, (3) the trial court improperly instructed the jury, took judicial notice of controverted facts, and excluded his defense of duress and necessity, and (4) the statute under which he was convicted is unconstitutionally vague. We affirm the conviction.

Howard's escape from the Swift Bird Project constitutes a violation of S.D. Compiled Laws Ann. § 22-11A-2.²  Where there does not exist any congressional enactment which punishes acts or omissions on federal enclaves state law may be "assimilated" under the ACA.³  The purpose of the ACA was to fill a void in the criminal law applicable to any "place" under federal jurisdiction. Howard was assigned by state authority to serve his sentence under Nebraska law at the Cheyenne River Swift Bird Project. The Swift Bird Project is a tribal, nonprofit corporation existing under the ordinances and constitution of the Cheyenne River Sioux Tribe located on the Cheyenne River Sioux Indian Reservation in Dewey and Ziebach counties in central South Dakota. The purpose of the Swift Bird Project is to provide an alternative, minimum security correctional facility for Native Americans. Howard's escape was not an escape from the custody of the Attorney General or otherwise violative of the federal escape statute, 18 U.S.C. § 751(a).⁴  Presumably, because Howard's escape was not made punishable by an act of Congress, the indictment charged Howard under the ACA, which assimilates the escape statute under S.D. Compiled Laws Ann. § 22-11A-2. Howard argues, however, that because the federal escape statute prohibits the generic crime of escape the Government cannot prosecute him for escape from state custody. We disagree.

Howard's argument that he cannot be prosecuted under the ACA relies on analogies to Williams v. United States, 327 U.S. 711, 66 S. Ct. 778, 90 L. Ed. 962 (1946), and United States v. Butler, 541 F.2d 730 (8th Cir. 1976). In Williams, the Court held that the ACA did not make the Arizona statutory rape law applicable to prosecute a married white man for having sexual intercourse on the reservation with an Indian woman over 16 years of age. The federal carnal knowledge statute affixed the age of consent at 16, the Arizona statute set the age of consent at 18. One basis for the Court's holding that the ACA did not apply was that the man's conduct was "made punishable" by federal adultery laws. 327 U.S. at 717, 66 S. Ct. at 781. The second ground was preemption. The federal carnal knowledge statute was part of a comprehensive scheme of federal definitions of sex crimes in areas subject to congressional jurisdiction. The Court determined that assimilation of the state law would impermissibly interfere or add to the already comprehensive federal definitions. Id. at 717-18, 66 S. Ct. at 781. The prosecution was barred from selectively choosing the broader state definition of the federal crime. Similarly, in Butler, this court held that the ACA and state law could not be used to broaden the definition of the federal crimes of possession and receipt of firearms by felons because Congress intended not to punish such acts by felons on the reservation other than as it had already specifically provided under 18 U.S.C.App. § 1202(a) (1) and 18 U.S.C. § 922(h). 541 F.2d at 734-35. Howard's argument is that the federal escape statute, 18 U.S.C. § 751, establishes comprehensive and exclusive requirements for all federal prosecutions of escape and, consequently, anyone who does not violate section 751 cannot be punished by the United States for escape.

We find this argument untenable. It misconstrues Williams and our holding under Butler. In those cases federal prosecutors, by use of the ACA, attempted to redefine federal crimes by adding new elements to the crimes by use of state law. This is in clear violation of the ACA. In the present case there is no federal statute which makes the escape from state or tribal authority in Indian country a federal crime. Section 751 punishes only those escapees who were originally confined or in custody under federal law in the sense that they were held in the custody of the Attorney General or in custody by an order or process issued under the laws of the United States by a competent court or official. The generic crime covered is not just escape, but escape from federal custody. Section 751 does not punish escapees from state custody, even though the escape is from a facility on federal land. Thus, there is no duplication even in a generic sense of the crimes involved. Federal prosecution is necessitated because the escape occurred on a federal reservation. Since there exists no congressional enactment punishing the act in question the ACA is clearly applicable.⁵ 

No conflict exists between section 751 and the assimilation of S.D. Compiled Laws Ann. § 22-11A-2.⁶  In the absence of such conflict, we cannot infer from the congressional prohibition of escape from federal custody that Congress intended to exempt from federal prosecution persons who escape from the custody of state officials while on federal reservations. We conclude federal prosecution under the ACA and S.D. Compiled Laws Ann. § 22-11A-2 is not preempted by section 751.⁷ 

2. Offenses By One Indian Against Another.

Howard argues that his escape from the Swift Bird Project, a project owned and operated by Indians, was an offense "against the person or property of another Indian ..." and, therefore, not punishable under the ACA.⁸  Escape has often been characterized as an offense against the authority which designated the place of confinement, even though actual or physical detention is the immediate responsibility of other authorities. United States v. Cluck, 542 F.2d 728, 735 (8th Cir. 1976) (escape from county hospital designated as place of federal confinement was escape from federal custody); United States v. Hobson, 519 F.2d 765, 770 (9th Cir. 1975) (escape from state correctional facility designated by Attorney General as place of confinement was escape from federal custody); Frazier v. United States, 339 F.2d 745 (D.C. Cir. 1964) (escape from hospital); Tucker v. United States, 251 F.2d 794 (9th Cir. 1958) (escape from county hospital). In 1980, Nebraska designated the Swift Bird Project as the place of confinement, pursuant to a Nebraska statute and a contract with the project. While there, Howard remained in the constructive custody of the State of Nebraska. Thus, Howard is being punished for an offense against the State of Nebraska, for acts on a federal reservation in violation of S.D. Compiled Laws Ann. § 22-11A-2 and the ACA. He is not being punished for an offense "against ... another Indian" within the meaning of 18 U.S.C. § 1152.

Since Howard's escape constitutes an offense against non-Indians, this case does not involve merely the relations of Indians among themselves, to which the general laws of the United States should not apply absent specific congressional mandate. Cf. United States v. Quiver, 241 U.S. 602, 36 S. Ct. 699, 60 L. Ed. 196 (1916); In re Mayfield, 141 U.S. 107, 11 S. Ct. 939, 35 L. Ed. 635 (1891).

3. Scienter.

The trial court instructed the jury that the Government must prove beyond a reasonable doubt that Howard "knowingly failed to return to custody...." The court also instructed the jury that an "act is 'knowingly' done, if done voluntarily and intentionally, and not because of mistake or accident, or other innocent reason." Howard asserts error and claims that the jury should have been instructed that the crime of escape requires proof of a specific intent to escape. Although Howard's precise objection is unclear, we conclude that the court's instructions comply with both federal and state requirements. United States v. Bailey, 444 U.S. 394, 408, 100 S. Ct. 624, 633, 62 L. Ed. 2d 575 (1980); State v. Kiggins, 86 S.D. 612, 200 N.W.2d 243, 244 (S.D.1972).

4. Duress or Necessity Defense.

Howard asserts error because the trial court refused to give an instruction on duress or necessity to the charge of escape. The trial court rejected the proffered instruction because it found no duress or necessity and no offer to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force. Bailey, 444 U.S. at 415, 100 S. Ct. at 637. We find no error.⁹ 

Affirmed.