Unpublished Disposition, 868 F.2d 1273 (9th Cir. 1986)

MEMORANDUM^*

Hakeem Abdul Rasheed appeals the district court's denial of his motion for acquittal following his conviction by a jury for escape from federal custody, in violation of 18 U.S.C. § 751(a). Rasheed contends that the evidence presented at trial was insufficient to support a conviction for escape. We affirm the district court judgment.

FACTS

Hakeem Abdul Rasheed was sentenced to prison on a conviction of escape in 1980. In November, 1985, the United States Parole Commission established an effective parole date of May 5, 1986 for Rasheed. In January, 1986, as part of the parole release plan, Rasheed was transferred from a closed custody institution to a halfway-house called Eclectic Communications, Inc. (ECI). About two months prior to the established parole date, Rasheed had a disciplinary hearing at ECI in which it was determined he had violated ECI institutional regulations. At the hearing, Rasheed was warned that further misconduct could result in his return to closed custody. Subsequent to the hearing, Rasheed's parole officer informed Rasheed that he was not going to approve his parole release plan, and that he had recommended that his parole date be postponed. Rasheed's counselor at ECI also told Rasheed that his parole date was being retarded; she added, however, that she had not received written notification of the postponement and that he should contact someone who knew his current legal status.

Another disciplinary hearing was scheduled for Rasheed on May 5, 1986, the date that had been previously established as his parole date. On the morning of May 5th, Rasheed, without signing out, left ECI before the hearing was held, in spite of being specifically instructed to wait in the ECI library for his hearing to begin. Rasheed did not return to ECI after his departure on May 5th. He was apprehended by federal marshals in July, 1986.

STANDARD OF REVIEW

This court will affirm a denial of a motion for acquittal if, viewing the evidence in the light most favorable to the government, any rational juror could have found the elements of the crime beyond a reasonable doubt. See United States v. Wolf, 820 F.2d 1499, 1502 (9th Cir. 1987), cert. denied, 108 S. Ct. 1222 (1988).

ANALYSIS

Rasheed contends that the evidence presented at trial was insufficient to support a conviction for escape under 18 U.S.C. § 751. Specifically, Rasheed claims there was insufficient evidence that Rasheed knowingly and willfully left ECI without permission. Rasheed's contention lacks merit.

To sustain a conviction for escape from federal custody, the jury must find beyond a reasonable doubt that the defendant (1) had been in the custody of the Attorney General, (2) as the result of a conviction, and (3) that he escaped from that custody. See United States v. Bailey, 444 U.S. 394, 407 (1979). Under Sec. 751, escape is defined as "absenting oneself from custody without permission." Id. While the mental state requirement under Sec. 751 is usually that the escapee "know his actions would result in leaving physical confinement without permission," id. at 408, the jury in this case was instructed that specific intent must be found in order to return a guilty verdict. Accordingly, specific intent becomes a necessary element for conviction pursuant to the "law of the case" doctrine. See United States v. Spletzer, 535 F.2d 950, 954 (5th Cir. 1976); United States v. Tapio, 634 F.2d 1092, 1094 (8th Cir. 1980). Specifically, the jury instructions dictate that there had to be sufficient evidence to conclude beyond a reasonable doubt that Rasheed left custody knowingly, willfully, and voluntarily. In its instructions, the court defined knowingly as "the defendant realized what he was doing," and willfully as "specific intent to do something the law forbids ... with bad purpose either to disobey or disregard the law."

Viewed in the light most favorable to the government, there was sufficient evidence to prove beyond a reasonable doubt that Rasheed knowingly, willfully, and voluntarily left ECI without permission. The evidence offered at trial indicates that Rasheed knew of the strong likelihood that his parole date had been postponed, and that he understood he was not free to leave ECI on May 5, 1986. At trial, Rasheed's parole officer testified that he had informed Rasheed he was not going to approve his parole release plan and that he had recommended postponement of his release from custody. The parole officer further testified that Rasheed expressed concern about the delay in his release and inquired as to the duration of the postponement. Additionally, Rasheed's ECI counselor testified that she had told Rasheed that it had been recommended that his parole date be retarded, and that there would be at least a thirty-day delay in his release date. Rasheed's intent to disobey or disregard the law is also strongly suggested by the evidence which indicates that Rasheed left ECI without signing out, after specifically being instructed just a few minutes before his exit from the facility to wait in the library for his disciplinary hearing to begin.

In light of the fact that there was indeed sufficient evidence for a rational juror to conclude beyond a reasonable doubt that Rasheed knowingly and willfully intended to leave ECI without permission, the district court did not err in denying Rasheed's motion for acquittal. The district court judgment is therefore AFFIRMED.