USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_________________________

No. 95-1207

UNITED STATES OF AMERICA,

Appellee,

v.

ANTHONY S. DESTEFANO,

Defendant, Appellant.

__________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

___________________

__________________________

Before

Selya, Circuit Judge,

_____________

Campbell, Senior Circuit Judge,

____________________

and Cyr, Circuit Judge.

_____________

__________________________

Walter F. McKee,
________________

with whom

Lipman and Katz, P.A.

______________________

was on

brief, for appellant.

Helene Kazanjian,
_________________

Assistant United

whom Jay P. McCloskey, United

_________________

States

Attorney, with

States Attorney, and

Jonathan R.
___________

Chapman, Assistant United States Attorney, were on brief, for the

_______

United States.

__________________________
July 12, 1995
__________________________

SELYA, Circuit Judge.

SELYA, Circuit Judge.
______________

jury in

the United

States

District Court for the District

inter
_____

alia, of assisting
____

752(a).1

Appellant says

instruction crucial to his

of Maine found appellant guilty,

an escape in violation

of 18 U.S.C.

that the district court shunned

defense.

Discerning no error

a jury

in the

lower court's eschewal of the requested instruction, we affirm.

I.
I.

BACKGROUND
BACKGROUND

Following

Philip DeStefano's arrest

federal narcotics charges, the government

jail.

appellant

DeStefano

contacted

Anthony S.

his

contemplated escape.

He

specific

a specific

location at

Appellant agreed.

housed him at a county

younger

DeStefano, and

and indictment on

brother,

defendant-

solicited assistance

told appellant to

time, and

park his

in a

van at

await developments.

At approximately 8:30 p.m. on September 8, 1994, Philip

DeStefano bolted.

interior

After another

fence, he

scaled an

wire, took his leave

prisoner boosted

exterior

him over

fence topped

of the jailhouse grounds, and

by barbed

followed the

____________________

1The statute of conviction provides in pertinent part:

Whoever

rescues or

instigates,
attempt to

attempts

aids or
escape,

upon a warrant or

to

assists
of any

rescue

or

the escape

or

person

arrested

other process issued under

any law of the United States, or committed to

the custody of the Attorney General or to any
institution

or

shall, if the

facility
custody or

by his

direction,

confinement is

by

virtue of an arrest on a charge of felony, or

conviction

of any

offense, be

provided by law].

18 U.S.C.

752(a) (1988).

an

[punished as

railroad tracks for a short distance.

tracks, he

Realizing

spotted officers

As he travelled along

conversing casually near

that the guards had not

the

the jail.

yet discovered his departure,

he discarded his distinctively colored prison shirt and sauntered

across a parking

lot to appellant's van.

The

two brothers then

drove toward friendlier climes.

The

authorities

became

aware

of

the

escape

at

approximately 11:30 p.m.

three-hour head start.

in

New

York.

By then, the DeStefano brothers

Several

Federal

days later, lawmen captured them

prosecutors

charged

assisting an escape in

violation of 18 U.S.C.

concealing

prisoner

an escaped

statute, 18 U.S.C.

We

proceedings

appellant

752(a)

in violation

of the

account

the

with

and with

harboring

1072.2

omit

and

had a

any

cut

exegetic

directly

to

the

of

heart

Appellant pleaded not guilty and stood trial.

of

intervening

the

appeal.

At trial's end, he

requested the following jury instruction:

When the physical control has ended by flight

beyond immediate active
is

complete.

Any

pursuit, the

assistance

beyond

escape
this

point is not aiding and abetting.

The

district

court refused

to

give this

instruction

in haec
____

____________________

2The harboring statute provides:

Whoever
any

willfully

prisoner

custody

of

Federal

penal

shall

be

after

his

the Attorney

escape

imprisoned

not

1072 (1988).

conceals
from

General or

or correctional

years.

18 U.S.C.

harbors or

more

the

from a

institution,
than

three

verba, instead telling the jury that:

_____

The crime
cannot

of aiding

occur

temporary

after

safety.

or assisting
the

escapee

After

that,

an escape
reaches
aid

or

assistance to

a fugitive is no longer aiding

or

his escape,

assisting

whatever

else it

might be.

Appellant took a

timeous objection

Crim. P. 30, on the

"flight

to the charge,

see Fed.
___

ground that the court should have

beyond immediate active

R.

given the

pursuit" instruction,

and that

its failure to do so undermined the defense.

The

jury

found

(assisting

an

escape

imposition

of sentence,

appellant

and

guilty

harboring an

appellant

DISCUSSION

both

escapee).

perfected this

challenges only his conviction under 18 U.S.C.

II.

on

counts

Following

appeal.

752(a).

He

II.

DISCUSSION

This

is a rifle-shot appeal

that draws a

bead on the

district court's refusal to

embrace the "flight beyond immediate

active pursuit" instruction.

The standard of review is ironclad:

"The

to

trial

court's refusal

constitutes reversible

was

(1)

correct

as

error only

substantially incorporated

integral to

give

matter

a particular

if the

of

requested instruction

substantive

into the charge as

an important point in

instruction

law,

the case."

United States v.
______________

United States v.
_____________

Nason, 9 F.3d 155, 161 (1st Cir. 1993), cert. denied,

_____
_____ ______

(1994); United States v.

______________

Gibson, 726
______

Cir.), cert. denied, 466 U.S. 960 (1984).

_____ ______

not

rendered, and (3)

McGill, 953 F.2d 10, 13 (1st Cir. 1992); accord

______
______

1331

(2)

F.2d 869,

114 S. Ct.

874 (1st

To be sure, a

defendant has a right to

an instruction

on his theory of the case as long as that theory is valid

supported

by the record.

See United States v. Flores, 968 F.2d

___ ______________
______

1366, 1367 (1st Cir. 1992).

put words in the judge's

instructions

are

and is

But, that right is not a license "to

mouth."

intended

to

McGill, 953 F.2d at

______

furnish

set

of

12.

Jury

directions

composing,

in the

aggregate, the

applied

by lay jurors in

resolve

in a

determining the issues

particular case.

Corp.,
_____

798 F.2d

charge

satisfies this

proper legal standards

559, 564 (1st

See
___

Calhoun v.
_______

Cir. 1986).

need, the court's

to be

that they must

Acme Cleveland
______________

Provided

choice of

that the

language is

largely a matter of discretion.

The rule in this circuit, therefore, is that "[s]o long

as

the charge

sufficiently conveys

need not parrot the exact

the defendant's

language that the defendant

theory, it

prefers."

McGill, 953 F.2d at 12; accord United States v. Mejia-Lozano, 829

______
______ _____________
____________

F.2d

268, 272 (1st Cir. 1987).

not obligated

to instruct

By

the same token, the judge is

on every particular

that conceivably

might be of interest to the

889

F.2d 1158,

Indus., Inc.,
____________

1167

jury.

(1st Cir.

See United States v. Nazzaro,

___ _____________
_______

1989);

United States
_____________

878 F.2d 535, 543 (1st Cir. 1989).

v.

Rule
____

On appeal, the

central inquiry reduces to whether, taking the charge as a whole,

see
___

Francis v.
_______

Naughten,
________

414

Franklin,
________

U.S.

adequately

illuminate

issues

the

in

case

misleading the jury.

471 U.S.

141,

the

146-47

law

without

307,

315 (1985);

(1973),

applicable to

unduly

the

the

complicating

Cupp
____

v.

instructions

controlling

matters

or

See United States v. Alzanki, ___ F.3d ___,

___ _____________
_______

___ (1st

Cir.

1995) [No.

94-1645,

slip op.

at

8]; Davet
_____

v.

Maccarone, 973 F.2d 22, 26 (1st Cir. 1992) (listing other cases).
_________

Predictability

law, and judges

and consistency

tend to use

the same phrases

explaining particular concepts to

he

wanted no

honored

than to

jurors.

have the

important in

the

over and over

in

Appellant argues that

district court

use time-

language here, and that the court should have yielded to

his entreaty.

the

more

are

He points to

court's disavowal

of

three precedents that he

the "flight

says cast

beyond immediate

active

pursuit" articulation

into disrepute.

We examine

each of these

cases.

In Orth v. United States, 252 F. 566 (4th Cir. 1918), a

____
_____________

prisoner

fled from a Georgia penitentiary.

appeared on

asylum.

the defendant's doorstep in

Four weeks later, he

South Carolina, seeking

The defendant lent a helping hand.

convicted Orth on

a charge

of assisting a

A jury subsequently

convict to

escape.3

The Fourth Circuit reversed, holding that by the time Orth became

involved,

the event

of escape

had long

since concluded.

The

court stated:

"When the physical control [over the prisoner] has

been ended by

[his] flight beyond immediate

escape is

complete."

assisting the fugitive

Id. at
___

568.

Once that

active pursuit, the

point has passed,

can no longer be considered assisting the

escape.

States
______

See id.
___ ___

A second case that appellant cherishes,

v. Vowiell, 869 F.2d

_______

1264 (9th Cir.

United
______

1989), embraced the

____________________

3The conviction

eventuated under an

similar version of the present 18 U.S.C.

earlier, substantially
752(a).

reasoning

of the Orth court

____

in connection with

a discussion of

the issue as

hearsay

aiding

it relates

rule.

an

The Ninth

escape

to the coconspirator

Circuit agreed

terminates

once

exception to

that "[t]he

the

escapee

temporary safety," and defined "temporary safety" by

has

the

crime of

reached

reiterating

Orth's "flight beyond immediate active pursuit" language.

____

Id. at
___

1268 (quoting Orth, 252 F. at 568).

____

The crown jewel in appellant's trilogy is United States

_____________

v. Smithers, 27 F.3d 142 (5th Cir. 1994).

________

aiding

an

instruction

escape

section

that contained the

pursuit" language.

instead

under

Smithers, charged with

752(a),

"flight beyond

The trial court denied the

requested

jury

immediate active

request, choosing

to charge according to the letter of the statute itself.

Following a guilty verdict, Smithers appealed.

vacated

the

conviction,

holding

that

instruction was substantively correct

failure to

give it

The Fifth Circuit

defendant's

and that the trial court's

impermissibly impaired Smithers'

raise his theory of defense.

Although these

suggested

ability to

See id. at 145-46.

___ ___

cases bear a family

resemblance to the

case at bar, they are at best cousins once or twice removed.

all three

cases, unlike

days after the

removed from the

here, the relevant

end of any immediate

place of liberation.

143-44; Vowiell, 869 F.2d at 1265-66;

_______

and

above

this

salient distinction,

assistance occurred

pursuit, at a location

See
___

far

Smithers, 27 F.3d at
________

Orth, 252 F. at 568.

____

Orth
____

In

is

of little

Over

help

because the court used the phrase that appellant extols not in an

effort to formulate a

of explaining why,

conviction

cloth.

model jury instruction, but in

on the facts of that case, the

___________________________

could not

stand.4

Vowiell
_______

is

cut from

the course

defendant's

the

same

As in Orth, the court gave no consideration either to how

____

jury instructions should be worded or to what language would best

fit a

case in which

defendant first aided

pursuit had not

the escapee.

the mark, is also inapposite.

yet been mounted

when the

Smithers, though closer

________

to

While the opinion memorializes the

need to give a jury instruction regarding the limits to be placed

on

charge of

language is most

any

aiding

tenders as

escape, it

fitting when, as now,

immediate, active

explore the pros

an

pursuit.

and cons

Nor

does

what

there is no evidence

does

of using language

opposed to the "temporary

not address

the Smithers
________

such as

of

court

appellant

safety" language preferred

by the court below.

Since these

fresh look.

precedents are not dispositive,

we take a

The linchpin of a charge under section 752(a)

the feature that sets it

apart from a charge of

and

harboring under

section 1072

an

is the showing

escape rather
______

This requires, of

than merely

that the accused aided or assisted

aiding or

course, that

a line be

assisting an

escapee.
_______

drawn separating

the

____________________

4The circumstances of Orth are such that,

____

on any reasonable

view of the statute, the defendant's conviction for assisting

escape could not be
almost a month

justified.

and had

The fugitive

traveled through two

defendant lifted a finger to help him.

had been at
states before

See 252 F. at 567.

___

an

large

the

These

facts placed the defendant well outside the outer boundary of any
charge

of aiding and abetting

the escape regardless

court's opinion might be phrased.

of how the

escape

This

discrete event

task is

perhaps more

blush, as the

more

or

than

oneself

follow thereafter.

it appears

which, after

"absenting

all, means

from

custody

at first

nothing

without

United States v. Bailey, 444 U.S. 394, 407 (1980)

_____________
______

encompasses

a wide

definition,

without the

make breaking

what may

difficult than

term "escape"

less

permission,"

from

out of

range of

scenarios.

insertion of

Moreover,

limiting

prison a virtually

the general

language, would

endless continuum,

so

that any person who assisted an escapee, no matter how long after

the event or how distant from

the place of immurement, would

be

guilty

of

absurdity

criminal

violating

section

752(a).

inherent in

this

result, the

prosecution brought

To

avoid

the

jury instruction

under section

752(a) must

clear, comprehensible line between the discrete event

the escape

obvious

in a

draw a

that is,

and what may follow.

We think that

instruction in terms

the court's decision

here to frame

of "reach[ing] temporary safety"

the necessary guidance

to the jury.5

an ascertainable point at

furnished

The instruction described

which the jury might find

the escape ended and harboring began.

its

that aiding

Thus, the delivered charge

____________________

5Our confidence in the term is bolstered by its familiarity;

the

term

contexts.

is

regularly

the

in

other

analogous

criminal

See, e.g., People v. Fierro, 821 P.2d 1302, 1326 (Cal.

___ ____ ______
______

1991) (explaining
until

applied

robber

that
has

"the crime
won his

way

of robbery
to

is not

place of

complete

temporary

safety"),
619

P.2d 1157, 1159 (Kan.

within

the

attempted
a

cert. denied, 113 S. Ct. 303 (1992); State v. Hearron,

_____ ______
_____
_______

point of

1980) (holding that

felony-murder rule

if

committed

a homicide falls
during escape

or

escape, so long as the perpetrator has not yet reached

temporary

safety).

Thus,

the term's

common

law

court's discretion.

See
___

history informs the use of it here.

was well within

the realm of the trial

McGill, 953 F.2d at 13; see also Concise Oil & Gas Partnership v.
______
___ ____ _____________________________

Louisiana Intrastate

Gas Corp., 986

F.2d 1463,

1474 (5th

Cir.

_______________________________

1993) ("In instructing the jury, district judges may select their

own words and charge in their

court's

language

own styles.").

seems particularly

appellant's alternative formulation.

"flight

rendered assistance,

beyond

with

at or before the time the

an instruction

immediate active

confounding the jury without

when contrasted

Where, as here, there is no

evidence that pursuit had been mounted

defendant

apt

And, moreover, the

pursuit"

that centers

risks

on

confusing and

supplying a scintilla of additional

enlightment.

That ends

the matter.

instructions are vitally important

subtle or

highly nuanced

reason, the law is

Clear, easily

understood jury

in assuring that jurors grasp

legal concepts.

settled that a trial court

Partially for

this

may appropriately

refuse

to give a

proffered jury instruction

misleading, or incomplete

that is incorrect,

in some material respect.

See United
___ ______

States v. David, 940 F.2d 722, 738 (1st Cir. 1991), cert. denied,
______
_____
_____ ______

504 U.S. 955 (1992).

We

constituted

been

So it is here.

need go

further.

Because the

court's charge

a correct statement of

the law, and

would not have

improved by the

no

substitution or insertion

of the proposed

instruction,6 we reject appellant's lone assignment of error.

____________________

6We

should

not

be

understood

either

instructions featuring "flight beyond immediate

or

as relegating

such

instructions to

10

the

as

banishing

active pursuit,"
scrap heap.

The

Affirmed.
Affirmed.
________

____________________

language may have a legitimate place

in certain situations, such

as in helping the jury to visualize the issue in a case in which,

unlike this one, immediate active pursuit is underway at the time

the defendant renders aid.

11