4.18.751 Escape from Custody, 18 U.S.C. § 751 See Statute
[Defendant] is accused of [escaping; attempting to escape] from [facility] while [he/she] was in federal custody. It is against federal law to [attempt to] escape from federal custody. For you to find [defendant] guilty of this crime, you must be convinced that the government has proven each of these things beyond a reasonable doubt:
First, that on [date], [defendant] was in federal custody at [facility];
Second, that [he/she] was in custody because [he/she] had been [e.g., arrested for a felony charge; arrested for a misdemeanor charge; convicted of a crime];
Third, that [he/she] [left; attempted to leave] [facility] without permission; and
Fourth, that [he/she] knew that [he/she] did not have permission to leave.
(1) The nature of the custody must be proven specifically, since the statute provides for dual penalties: escape is a felony if custody was by reason of any conviction or a felony arrest, but only a misdemeanor if custody was by reason of a misdemeanor arrest or for extradition or expulsion. United States v. Vanover, 888 F.2d 1117, 1121 (6th Cir. 1989); United States v. Green, 797 F.2d 855, 858 n.4 (10th Cir. 1986); United States v. Edrington, 726 F.2d 1029, 1031 (5th Cir. 1984); United States v. Richardson, 687 F.2d 952, 958 (7th Cir. 1982); see also United States v. Bailey, 444 U.S. 394, 407 (1980) (stating in dictum that prosecution must prove nature of custody to convict under section 751(a)). The determination of whether an offense underlying an arrest is a felony or misdemeanor is a question of law for the court, but the determination that the defendant was being held by reason of conviction or arrest for a particular crime is a question of fact for the jury. Richardson, 687 F.2d at 958.
(2) Custody need not involve physical restraint; the failure to comply with an order that restrains the defendant’s freedom may be an escape. Bailey, 444 U.S. at 413 (holding that failure to return to custody is an “escape” in violation of section 751); United States v. Puzzanghera, 820 F.2d 25, 26 n.1 (1st Cir. 1987); see also 18 U.S.C. § 4082(a) (“The willful failure of a prisoner to remain within the extended limits of his confinement, or to return within the time prescribed . . . shall be deemed an escape [under 18 U.S.C. §§ 751-57].”).
(3) The defense of necessity or duress may be an issue. On this matter, see Bailey, 444 U.S. at 409-13.