Failure to Surrender — sufficiency of the evidence

Listen to this article

United States Court of Appeals For the Seventh Circuit

Criminal

Failure to Surrender — sufficiency of the evidence

Even if a defendant did not know where he was to surrender to serve his prison sentence, the evidence is sufficient.

“Contrary to McIntosh’s claim, failure to surrender for service of a sentence is a continuing crime. United States v. Elliott, 467 F.3d 688, 690 (7th Cir. 2006) (concluding that failure to report for service of a sentence should be treated as a continuing offense in the same manner as escape, and disavowing dicta in United States v. Knorr, 942 F.2d 1217, 1223 (7th Cir. 1991), to the contrary). See also United States v. Lopez, 961 F.2d 1058, 1059-60 (2d Cir. 1992) (failure to appear for sentencing in violation of section 3146(a)(1) is a continuing offense); United States v. Green, 305 F.3d 422, 432-33 (6th Cir. 2002) (same); United States v. Alcarez Camacho, 340 F.3d 794, 796-97 (9th Cir. 2003) (failure to appear for trial in violation of section 3146(a)(1) is a continuing offense); United States v. Martinez, 890 F.2d 1088, 1091 (10th Cir. 1989) (failure to appear for service of a sentence in violation of section 3146(a)(2) is a continuing violation). Each day that he knowingly and wilfully continued to evade the service of his prison sentence violated the statute. Under any theory, as of January 29 at the very latest, McIntosh knew that the January 8, 2010 surrender date had not been vacated, and that the failure of the BOP to designate a particular institution did not relieve him of his obligation to surrender for the service of his sentence. As for the place to surrender, once again, if he had any confusion prior to January 29, he could not claim ignorance after the court’s staff and the deputy U.S. Marshal told him to surrender to the U.S. Marshals at the federal courthouse in Chicago where he had been sentenced. That he instead fled to another state in violation of the conditions of his probation demonstrated wilfulness in the evasion of serving his sentence. The government further proved his state of mind with evidence that McIntosh was found in possession of thirty-four fraudulent credit cards in Tennessee, an indicator that he had no intention of turning himself in any time soon. His admissions to the Secret Service agent who interviewed him after his arrest also demonstrated that McIntosh knew what was required of him and chose to flee the jurisdiction instead. In short, the evidence was more than adequate to support the element of wilfulness.”

Affirmed.

11-3535 U.S. v. McIntosh

Appeal from the United States District Court for the Northern District of Illinois, Zagel, J.