Prison OffensesKnowledge of Warden
Lack of knowledge by the warden becomes an issue if the
regulation being violated under 18 U.S.C. § 1791 is 28
C.F.R. § 6.1. 28 C.F.R. § 6.1 requires that the
offense occur without the knowledge of the warden.|
In United States v. Berrigan, 482 F.2d 171, 188 (3d
Cir. 1973), the Court of Appeals held that the warden's lack of
knowledge regarding the sending and receiving of letters was an
essential element of the crime. If the warden knew of the
letters there could be no crime. This constituted "legal"
impossibility and, therefore, was a valid defense to a charge of
attempt. This analysis has not, however, been accepted by all
courts of appeals. See United States v. Heng Awkak
Roman, 356 F. Supp. 434 (S.D.N.Y. 1973), aff'd, 484
F.2d 1271 (2d Cir. 1973)(per curiam), cert. denied, 415
U.S. 978 (1974); United States v. Quijada, 588 F.2d 1253
(9th Cir. 1978); United States v. Frazier, 560 F.2d 884
(8th Cir. 1977), cert. denied, 435 U.S. 968 (1978).
In contrast to the Berrigan situation, however, when
the contraband is intercepted and then allowed to proceed, the
attempt would be already complete prior to the interception. A
warden's lack of knowledge or consent can be inferred beyond
reasonable doubt from other evidence. See United
States v. York, 578 F.2d 1036 (5th Cir.), cert.
denied, 439 U.S. 1005 (1978).
[cited in USAM 9-69.300]