This case is before us on the Government's motion to dismiss defendant's timely appeal from his conviction by a jury on four counts of an indictment charging violation of 26 U.S.C. §§ 5861(d), (f), 5871, and 18 U.S.C. § 371, and the resulting sentences imposed aggregating twelve years. The motion is based upon the ground that the defendant Garland Rex Brinlee, Jr., escaped from the Oklahoma State Penitentiary where he was serving a state sentence on August 6, 1973, that he is at present a fugitive from justice. The sentences imposed in our present case are consecutive to the Oklahoma State sentence defendant is serving. Defendant through his court-appointed counsel has filed a response which does not contest defendant's status as a fugitive from justice.
In Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 498, 24 L.Ed.2d 586 (1970), the Court holds:
To like effect see Eisler v. United States, 338 U.S. 189 and 883, 69 S.Ct. 1453, 92 L.Ed. 1897 (1949); Smith v. United States, 94 U.S. 97, 24 L.Ed. 32 (1876).
In Johnson v. Laird, 432 F.2d 77, 79 (9th Cir. 1970), the court quotes from Smith, supra, as follows:
And then goes on to say:
See United States v. Tremont, 438 F.2d 1202 (1st Cir. 1971); United States v. Dawson, 350 F.2d 396 (6th Cir. 1965); Stern v. United States, 249 F.2d 720 (2d Cir. 1957).
Upon the basis of the authorities hereinabove cited, it is ordered that this appeal be dismissed thirty days from the date of the filing of this order unless in the meantime defendant has submitted himself to the jurisdiction of the United States District Court or has been found and taken into custody by either state or federal officers.
In the event defendant is taken into custody, the United States Attorney shall immediately report such event to the court. If defendant is not taken into custody prior to the expiration of thirty days from the filing of this order, the United States Attorney shall promptly so advise the court. Upon receipt of a report that the defendant is still a fugitive, the Clerk is directed to dismiss this appeal.