United States of America, Plaintiff-appellee, v. Clifford Gene Black, Defendant-appellant, 995 F.2d 233 (9th Cir. 1993)

MEMORANDUM^** 

Clifford Gene Black appeals his conviction, following a jury trial, for interfering with federally protected activities and aiding and abetting in violation of 18 U.S.C. §§ 2, 245(b) (2) (F). Black contends that the evidence was insufficient to support his conviction. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

"In reviewing the sufficiency of the evidence, ... [we] must determine whether, assessing the evidence in the light most favorable to the Government, 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. McInnis, 976 F.2d 1226, 1230 (9th Cir. 1992) ( quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

To prove a violation of section 245(b) (2) (F), the government must show that the defendant acted with the specific intent to injure, intimidate or interfere with the victim because of his race and because of his use of a public facility. 18 U.S.C. § 245(b) (2) (F). A jury may infer that the defendant acted with the requisite specific intent based on circumstantial evidence. See, e.g., McInnis, 976 F.2d at 1230-31; United States v. Skillman, 922 F.2d 1370, 1373 (9th Cir. 1990).

Here, Black and a companion approached Edgar J. Markham, Jr., an African-American male, who was checking the oil in his car at a Fastrip convenience store and gasoline station ("Fastrip") in Oildale, California. Black was shirtless and had tattoos on his upper body symbolizing his belief in white supremacy.¹  Black called Markham a "nigger" and asked Markham what he was doing in Oildale. Markham attempted to leave but Black swung at him. Black and his companion forced Markham towards the street and Black stabbed Markham several times in the arm, back, and neck before fleeing with his companion.

At trial, Black's sister and a friend, Steve Tatum, testified that Black dislikes black people. Tatum also testified that on the night of the attack, Black admitted he had "stabbed a nigger." Federal Bureau of Investigation ("FBI") Agent Scott Saxon testified that Black admitted he dislikes black people and stated "he could understand why a Black person would be stabbed in Oildale and he probably got stabbed because he was in Oildale." Michael Dowdy, a Wasco State Prison official, testified that Black stated the FBI probably wanted to question him about "that fucking nigger that got stabbed in the neck in Oildale" and "if that nigger in Oildale got stabbed, he probably had it coming, because he shouldn't have been in Oildale." In addition, the government introduced a pretrial note, written by Black to another inmate in Wasco State Prison, which stated:

What I told Markham was, 'Nigger, what are you doing in Oildale? Get your fucking nigger ass out of my 'hood.' Then I stabbed him. He tried to run, but I stayed on him. I stabbed him about five times. And all the time I called him 'nigger' and told him to get out of my 'hood.

Black contends that the evidence was insufficient to support his conviction because the government did not prove that he intended to deprive Markham of the use of a public facility. This contention is meritless. Black's expressed hatred of African-Americans, his indiscriminate attack on Markham, his statement to Markham "What are you doing in Oildale? Get ... out of my 'hood," and his statements to government officials that Markham was probably stabbed because of his presence in Oildale, all support the conclusion that Black carried out the attack with the intent of preventing Markham from remaining on the Fastrip premises. Based upon the evidence, a rational jury could have inferred that Black's conduct was intended to deprive Markham of the use of a public facility. See McInnis, 976 F.2d at 1230-31; Skillman, 922 F.2d at 1373. Accordingly, the evidence was sufficient to support Black's conviction.

AFFIRMED.