419 F2d 388 United States v. Apker

419 F.2d 388

UNITED STATES of America, Plaintiff-Appellee,
v.
Rick Allen APKER, Defendant-Appellant.

No. 23692.

United States Court of Appeals Ninth Circuit.

December 10, 1969.

David M. Rothman (argued), Los Angeles, Cal., for defendant-appellant.

Michael J. Lightfoot (argued), Robert L. Brosio, Asst. U. S. Attys., Wm. Matthew Byrne, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before ELY and TRASK, Circuit Judges, and PENCE,* District Judge.

PER CURIAM.

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1

Apker, an inmate of a Federal Correctional Institution was charged, tried by jury, convicted of Attempted Escape under 18 U.S.C. § 751 and sentenced therefor to 45 days imprisonment, to run consecutively to any other sentences previously imposed.

2

The evidence before the jury was more than sufficient to support its verdict that Apker was unequivocally activating what may have well been a foolhardy attempt to escape, when he was caught. This court cannot fault that verdict.

3

That Apker, after being caught, may, thereupon and therefor have been placed in segregated confinement by the institutional officials for 37 days and subsequently convicted and sentenced to confinement by a Federal court for the same acts does not constitute "double jeopardy" under the Fifth Amendment. United States v. Shapiro, 383 F.2d 680, 683 (7th Cir.1967); Rush v. United States, 290 F.2d 709, 710 (5th Cir.1961); Mullican v. United States, 252 F.2d 398, 400, 70 A.L.R.2d 1217 (5th Cir.1958); Patterson v. United States, 183 F.2d 327, 328 (4th Cir.1950); Pagliaro v. Cox, 143 F.2d 900, 901 (8th Cir.1944).

4

Affirmed.

Notes:

*

Hon. Martin Pence, Chief Judge, United States District Court, District of Hawaii, sitting by designation