Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 88-71-CR -- Larry J. McKinney, Judge.
Cummings, Wood, Jr., and Ripple, Circuit Judges.
The appellant, Donald Sager, appeals his conviction under 18 U.S.C. § 1071 for harboring or concealing Carlos Aubrey, whose apprehension had been ordered by the United States Parole Commission. In the district court, Mr. Sager argued that 18 U.S.C. § 1071 does not proscribe harboring or concealing a parole violator because the order issued by the Parole Commission was not an arrest warrant within the meaning of the statute. The district court rejected this argument and entered a judgment of conviction. We affirm.
Donald Sager and Carlos Aubrey had been codefendants in a bank robbery case. Both were convicted, imprisoned, and eventually released on parole. Both were subject to the standard condition that, while on parole, a parolee may not associate with any person who has a prior criminal record. Mr. Sager had requested, in April 1988, permission to see Mr. Aubrey but his request was denied by his parole officer.
In May 1988, the United States Parole Commission issued a warrant reciting that Carlos Aubrey had violated one or more conditions of his release*fn1 and requiring that he be taken into custody. The evidence at trial, which need not be set forth in detail here, established, to the satisfaction of the jury,*fn2 that, during June 1988, Mr. Sager assisted Mr. Aubrey in eluding detection.
Mr. Sager's argument can be stated succinctly. The indictment charged him with harboring and concealing a person "for whose arrest a warrant had been issued by the United States Parole Commission." In Mr. Sager's view, section 1071*fn3 does not proscribe such conduct. Rather, he submits, the statute only proscribes harboring and concealing a person for whom a warrant has been issued pursuant to Rule 4 of the Federal Rules of Criminal Procedure -- a person sought because there is probable cause to believe he has committed a crime. In short, Mr. Sager argues that he harbored and concealed a person wanted for return to the custody of the Attorney General for service of an already existing sentence; the statute, on the other hand, only precludes harboring or concealing a person wanted to answer for a crime for which he has not yet been convicted.*fn4
In support of his position, Mr. Sager invites our attention to the statutory language. The statute dealing with parole violations, 18 U.S.C. § 4213, empowers the Parole Commission to "issue a warrant and retake the parolee." 18 U.S.C. § 4213(a)(2) (emphasis added). By contrast, Rule 4, dealing with the apprehension of a person wanted to answer a criminal charge, employs the word "arrest." Fed.R.Crim.P. 4. Similarly, 18 U.S.C. § 3606, dealing with the apprehension of probation violators and those on supervised release, speaks in terms of "arrest."*fn5 Therefore, Mr. Sager argues, section 1071 is not applicable be cause there was no outstanding arrest warrant for Carlos Aubrey at the time Mr. Sager allegedly concealed him.
Mr. Sager attempts to bolster the foregoing statutory argument by suggesting that the federal criminal code contains another section that would have been a more appropriate basis for any criminal prosecution. Specifically, he notes that 18 U.S.C. § 1072 punishes harboring "any prisoner after his escape from the custody of the Attorney General or from a Federal penal or correctional institution." He argues that prosecution under this statute, as opposed to section 1071, would be consistent with the significant body of case law that considers the parolee to be a person in "custody."
Finally, Mr. Sager invokes the so-called "rule of lenity" and submits that a criminal statute must be strictly ...