United States v. Leonard Roy Gibbs

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 20, 2008
No. 07-15752 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 07-00091-CR-CC-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LEONARD ROY GIBBS,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(October 20, 2008)

Before DUBINA, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
Leonard Roy Gibbs appeals his convictions for attempted escape by an

inmate in custody of an institution, in violation of 18 U.S.C. § 751(a), and

possession of contraband by a prison inmate, in violation of 18 U.S.C.

§ 1791(a)(2), (b)(5), and (d)(1)(F). The issue on appeal is whether the district

court erred by denying Gibbs’s motion for judgment of acquittal with regard to his

attempted escape conviction.1 After review, we affirm Gibbs’s convictions.

We review de novo a district court’s denial of a motion for judgment of

acquittal on sufficiency of the evidence grounds. United States v. Yates, 438 F.3d

1307, 1311-12 (11th Cir. 2006) (en banc). In considering the sufficiency of the

evidence, we view all of the evidence “in the light most favorable to the

government, with all inferences and credibility choices drawn in the government’s

favor.” United States v. LeCroy, 441 F.3d 914, 924 (11th Cir. 2006), cert. denied,

127 S. Ct. 2096 (2007). “The evidence need not be inconsistent with every

reasonable hypothesis except guilt, and the jury is free to choose between or among

the reasonable conclusions to be drawn from the evidence presented at trial.”

United States v. Poole, 878 F.2d 1389, 1391 (11th Cir. 1989). “[We] cannot

1
We need not determine whether denial of the motion for judgment of acquittal
was error as to Gibbs’s contraband possession conviction, as Gibbs waived this issue on appeal
by failing to state in his brief how the district court erred. See Greenbriar, Ltd. v. City of
Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (stating that mere references to issues, in the
absence of any elaboration, are insufficient to raise a claim for appeal).

2
reverse a conviction for insufficiency of the evidence unless . . . we conclude that

no reasonable jury could find proof beyond a reasonable doubt.” United States v.

Jones, 913 F.2d 1552, 1557 (11th Cir. 1990).

To sustain a conviction for escape by an inmate in custody of an institution,

the government must prove the following elements: (1) the defendant was in the

custody of the Attorney General, (2) as the result of a conviction, and (3) the

defendant escaped from that custody. See United States v. Bailey, 100 S. Ct. 624,

633 (1980). To sustain a conviction for attempt, the government must prove

“(1) that the defendant had the specific intent to engage in the criminal conduct for

which he is charged and (2) that he took a substantial step toward commission of

the offense.” United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004). “A

substantial step ‘must be more than remote preparation,’ and must be conduct

‘strongly corroborative of the firmness of the defendant’s criminal intent.’” United

States v. Ballinger, 395 F.3d 1218, 1238 n.8 (11th Cir. 2005) (quoting United

States v. Mandujano, 499 F.2d 370, 377 (5th Cir. 1974)).

The evidence was sufficient to establish beyond a reasonable doubt Gibbs

intended to escape from custody and took several substantial steps toward

escaping. Gibbs confessed he prepared for his escape three weeks prior to

February 7th, and stated his belief that he could successfully climb over the outer

3
prison wall. Evidence was also introduced indicating Gibbs braided together torn

bed sheets, cut through a fence surrounding the recreation yard, and intended to use

a locker door as scaffolding to pull himself over the outer wall. A reasonable jury

could conclude this evidence established Gibbs’s intent to escape.

Gibbs raises the affirmative defense of duress or necessity for the first time

on appeal; however, there was no evidence he was under any direct or imminent

threat of harm at the time of the escape attempt. Gibbs also contends specific

intent became an element of the offense under “the law of the case” doctrine

because the district court’s jury instruction stated specific intent was required to

convict Gibbs of attempted escape. We need not reach this issue; even assuming

specific intent became an element of the offense, there was sufficient evidence in

the record for a reasonable jury to conclude Gibbs possessed a specific intent to

escape from federal custody.

In addition to the intent element, the Government was required to prove

Gibbs took a substantial step toward escaping to convict him of attempt. A number

of facts presented at trial evidenced the completion of substantial steps: Gibbs left

his cell twice in the early morning of February 7th, entered the recreation area and

removed links from the fence, and possessed a sharpened brass rod, a pillowcase

filled with rope, and a locker door. Gibbs admitted he had taken these steps to

4
Agents Moran and Greene, and Gibbs presented no evidence to the contrary at

trial. Construing this evidence in the light most favorable to the government, a

reasonable jury could conclude Gibbs completed one or more substantial steps

toward escaping.

Because the evidence presented at trial was sufficient to establish the

elements of the attempted escape offense, and Gibbs waived his argument as to the

contraband possession conviction, Gibbs’s convictions are affirmed.

AFFIRMED.