opinion: UNITED STATES of America v. Gregory T. McBRIDE, Appellant.
  No. 72-1394.
  United States Court of Appeals, District of Columbia Circuit.
  May 7, 1974.
  Laurence Gold, Washington, D. C. (appointed by this court), was on the brief for appellant.
  Harold H. Titus, Jr., U.S. Atty. at the time the brief was filed, John A. Terry, Charles H. Roistacher and Regina C. McGranery, Asst. U.S. Attys., were on the brief for appellee.
  Before HASTIE, United States Senior Circuit Judge for the Third Circuit, and WRIGHT and WILKEY, Circuit Judges.
  Sitting by designation pursuant to 28 U.S.C. § 294(d).
  WILKEY, Circuit Judge:
  The appellant phrases the only question on appeal:
  Whether the indictment in this case, which did not specify that the escape charged was from “custody or confinement ... by virtue of an arrest on a charge of felony [,] or conviction of any offense,” alleged with sufficient particularity the felony offense of escape from federal custody set out in 18 U.S.C. § 751(a), or whether the indictment was sufficient only to charge a misdemeanor violation of that provision.
  The appellant pled guilty and received a sentence of 18-54 months, which can only be supported by an indictment charging a felony. We find the sentence valid.
  Central to understanding the impact of the statute on the defendant is to know that when appellant escaped, he was confined as a result of his conviction for attempted unauthorized use of a motor vehicle, a fact well known to appellant. Section 751(a) provides that if an escapee’s “custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any offense, [he shall] be fined not more than $5,000 or imprisoned not more than five years, or both . . . . ” Since appellant was confined by virtue of a conviction at the time of his escape, he was liable for a penalty of up to five years’ imprisonment under the statute. Thus, the trial court’s sentence was lawful.
  The indictment of appellant for escape is rather artlessly drawn. It states that appellant violated 18 U.S.C. § 751(a) by “feloniously” escaping from the custody of the Attorney General on 9 December 1970. Appellant contends that since the indictment fails to allege that appellant’s confinement was by virtue of “an arrest on a charge of felony, or conviction of any offense,” the indictment can state at most a misdemeanor. Since the indictment does not specify that appellant’s confinement was “for extradition or by virtue of an arrest or charge of or for a misdemeanor,” which is the nature of custody that gives rise to a misdemeanor charge under the statute, the indictment states a misdemeanor charge no more completely than it states a felony.
  The issue, therefore, is whether the indictment is sufficient to state any offense. Two criteria for measuring the sufficiency of an indictment were set out in Russell v. United States:
  . . . first, whether the indictment “contains the elements of the offense intended to be charged, 'and sufficiently apprises the defendant of what he must be prepared to meet,’ ” and, secondly, “ ‘ in case any other proceedings are taken against him for a similar offence, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.’ [Citations omitted.]”
  As to the first criterion:
  (1) Arguably, appellant’s indictment fails to state all the elements of his offense, since it omits the nature of the custody from which he escaped. However, the nature of appellant’s custody is not an “element” of appellant’s offense in the sense that it is an integral part of his mens rea, or actus reus. Rather, it is a circumstance in which he committed his offense.
  (2) Appellant does not argue that the failure of the indictment to describe the nature of his custody prejudiced him in the preparation of his defense. Indeed, the court can take judicial notice of the public records that demonstrate that appellant was confined for a misdemeanor conviction when he escaped. Therefore, he could not have defended against the charge of felonious escape by proving that he was in custody on some other basis.
  (3) Finally, it should be noted that appellant did not enter his guilty plea under a misapprehension about the charge against him. Before the court accepted appellant’s guilty plea, the prosecutor described all the facts that formed the basis of the Government’s charge, including the fact that appellant was confined by virtue of his conviction for attempted unauthorized use of a motor vehicle. Furthermore, appellant explicitly acknowledged that he could be sentenced to up to five years’ imprisonment for the offense charged. Thus, whatever the shortcomings of the indictment, it is clear from the record that appellant was on notice concerning the exact nature of the offense to which he pleaded guilty.
  The second criterion of a sufficient indictment under Russell is that it must state the offense in a manner that precludes the defendant from suffering double jeopardy. Appellant’s indictment meets this criterion. It is clear that appellant pleaded guilty to escaping from the custody of the Attorney General on 9 December 1970. This forecloses further prosecution of appellant under 18 U.S.C. § 751(a) on the basis of appellant’s 9 December 1970 activities. Any doubt may be overcome by reference to the record previously cited, in which the details of appellant’s confinement and escape are set out.
  Supporting the conclusion reached herein is United States v. Perez, in which the indictments for felonious escape not only failed to specify the reason for appellants’ confinement, but also charged the appellants under the wrong statute. Nevertheless, the Sixth Circuit held that the indictments were sufficient to charge the appellants with a felony and to support a conviction under 18 U. S.C. § 751(a).
  Given the lack of complete clarity in detail in appellant’s indictment, it can be urged that the Government failed to introduce sufficient evidence before the grand jury to obtain a felony indictment and that the grand jury did not intend to return such an indictment. This possibility gives rise to the argument that appellant was denied his Fifth Amendment right to be indicted for the felony of which he was convicted. Under this approach, the prosecution’s in-court description of the details of appellant’s confinement and escape was an attempt “to usurp the functions of the grand jury by supplying an essential element of the crime.” The possibility that the grand jury did not indict appellant for the felony of escaping from custody might justify remanding the case for reindictment.
  However, there is little danger that refusing to remand would prejudice the appellant. It is nearly certain that he would be indicted for the felony of escape. The first grand jury found probable cause to believe that appellant escaped from the custody of the Attorney General. A subsequent grand jury would undoubtedly make it explicit that appellant’s custody was by virtue of a conviction. Furthermore, quashing the first indictment would wipe out the guilty plea the appellant knowingly and intelligently entered and permit him to stand trial. In a case involving the similar problem of a variance between the indictment and the prosecutor’s proof at trial, Judge Leventhal for this court stated:
  In every case of variance it can be argued that the grand jury that returned the indictment as is might not have been willing to return the indictment with the variance. This possibility can never be conclusively eliminated as a matter of abstract logic. Whether there is a reasonable possibility of prejudice, however, should be determined with some reference to the real world of juries and grand juries, and the realm of common sense which must guide the administration of the criminal law and rules of criminal procedure.
  Reality, practicality, and common sense suggest that the possibility that the grand jury in this case did not indict appellant for a felony should not be given significant weight and that appellant’s conviction on his guilty plea to the felony of escape be
  Affirmed.
  . Brief for Appellant at 1 (emphasis supplied) .
  . 18 U.S.C. § 751(a) (1970) (emphasis supplied) .
  . Similarly phrased indictments were reviewed in Lucas v. United States, 158 F.2d 865 (4th Cir. 1946), cert. denied, 330 U.S. 841, 67 S.Ct. 977, 91 L.Ed. 1287 (1947), and Gould v. United States, 173 F.2d 30 (10th Cir.), cert. denied, 337 U.S. 945, 69 S.Ct. 1501, 93 L.Ed. 1748 (1949), but we find those cases inconclusive here. Lucas sought to have his sentence vacated two years after its imposition, and Gould sought post-conviction relief under 28 U.S.C. § 2255. The court in each case applied the following standard: “The test is whether the indictment, by any reasonable construction, can be said to charge an escape under circumstances which would constitute it a felony.” 173 F.2d at 31. Under this standard, indictments charging that the defendants “feloniously” escaped from custody were found sufficient. Lucas, however, added: “If the question of the sufficiency of the indictment had been raised upon the trial by demurrer, motion to quash or motion for bill of particulars and had been presented by appeal from the judgment, a new trial would doubtless liave been granted for error in the proceedings.” 158 F.2d at 867 (emphasis supplied). While this statement is dictum, it makes clear that Lucas and G-ould are not directly applicable to the case at bar, in which the appellant is challenging the sufficiency of his indictment by appeal from his judgment of conviction.
  . 369 U.S. 749, 763-764, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962).
  . Transcript of Proceedings of 7 June 1971 at 5.
  . Id. at 4.
  . 457 F.2d 555 (6th Cir. 1972).
  . United States v. Thomas, 144 U.S.App.D.C. 44, 48, 444 F.2d 919, 923 (1971).
  . Appellant places reliance on United States v. Thomas, 144 U.S.App.D.C. 44, 444 F.2d 919 (1971), in which the court reversed the appellant’s conviction for burglary on the ground that the indictment failed to state the particular offense the appellant intended to commit upon entry into the dwelling. However, the court found that the indictment was sufficient to charge the lesser in-eluded offense of unlawful entry. On its facts, Thomas supplies little support for McBride’s contention that his indictment is insufficient to charge the felony of escape. Furthermore, appellant would have us find that the indictment, perhaps supplemented by the prosecutor’s in-court description of appellant’s offense, note 5 supra and accompanying text, adequately states the misdemeanor of escape and remand for resentencing on that lesser charge under Thomas. However, in Thomas the court’s remand explicitly gave the Government the option of seeking reindictment on the burglary charge. 144 U.S.App.D.C. at 52, 444 F.2d at 927. Thus, even if we were to follow the Thomas decision to the letter, the Government would be able to seek, and almost surely obtain, reindictment of appellant for felonious escape.
  . Jackson v. United States, 123 U.S.App.D.C. 276, 280, 359 F.2d 260, 264 (1966).
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.