United States v. Jackson

Bryan, J.

Robert Jackson, William Scott, and Martin Allen appeal from judgments of conviction . . . in the United States District Court for the Eastern District of New York after a trial before Chief Judge Jacob Mishler without a jury.

Count one of the indictment alleged that between June 11 and June 21, 1976 the appellants conspired to commit an armed robbery of the Manufacturers Hanover Trust branch located at 210 Flushing Avenue, Brooklyn, New York. . . . Counts two and three each charged appellants with an attempted robbery of the branch on June 14 and on June 21, 1976, respectively. . . .

After a suppression hearing . . . and a one-day trial . . . Chief Judge Mishler filed a memorandum of decision finding each defendant guilty on all four counts.

Appellants' principal contention is that the court below erred in finding them guilty on counts two and three. While they concede that the evidence supported the conspiracy convictions on count one, they assert that, as a matter of law, their conduct never crossed the elusive line which separates "mere preparation" from "attempt." This troublesome question was recently examined by this court in United States v. Stallworth, which set forth the applicable legal principles. For the reasons which follow, we affirm the convictions of all three appellants on all . . . counts.

[Most of the Government's evidence consisted of the testimony of Vanessa Hodges, an unindicted co-conspirator, and of FBI agents who surveilled the bank branch on June 21st, 1976. On June 11th, Hodges and Martin Allen agreed to rob the bank branch at 7:30 am on June 14th, a Monday, in order to get the weekend deposits. Allen agreed to bring a car and guns.

On June 14th, Allen picked up Hodges in a car driven by Robert Jackson, and brought guns, ammo, masks, and handcuffs. They all arrived at 8:00 a.m., too late to get in the bank as the manager opened the door. They decided against robbing the bank of its weekend deposits without an extra man. The trio then drove to Coney Island to find another accomplice, and ended up recruiting William Scott. They next drove to the bank to check out the serveillance cameras. They discovered that the weekend deposits were being divided up, and decided to try to rob the bank again the next week.

Hodges was arrested on Friday, June 18th, on an unrelated bank robbery charge. Hodges told the FBI the details of the impending robbery and gave descriptions of her accomplices and the car they would drive, a brown four-door Lincoln. FBI agents took positions around the bank at 7:00 am on Monday, June 21.

Allen, Jackson, and Scott eventually arrived in the car with a fake license plate. After driving around for a while on the streets near the bank, they finally started driving towards the bank. Before they got to the bank, they detected the FBI surveillance, and attempted to get away. They were eventually caught, and a search of the car yielded a suitcase with two loaded sawed-off shotguns, a revolver, handcuffs, and masks.]

In his memorandum of decision, Chief Judge Mishler concluded that the evidence against Jackson, Scott, and Allen was "overwhelming" on [the first count]. In contrast, he characterized the question of whether the defendants had attempted a bank robbery as charged in counts two and three or were merely engaged in preparations as "a close one." After canvassing the authorities on what this court one month later called a "perplexing problem" [in] United States v. Stallworth, Chief Judge Mishler applied the following two-tiered inquiry formulated in United States v. Mandujano:

"First, the defendant must have been acting with the kind of culpability otherwise required for the commission of the crime which he is charged with attempting. . . .

Second, the defendant must have engaged in conduct which constitutes a substantial step toward commission of the crime. A substantial step must be conduct strongly corroborative of the firmness of the defendant's criminal intent."

He concluded that on June 14 and again on June 21, the defendants took substantial steps, strongly corroborative of the firmness of their criminal intent, toward commission of the crime of bank robbery and found the defendants guilty on each of the two attempt counts. These appeals followed.

"There is no comprehensive statutory definition of attempt in federal law." United States v. Heng Awkak Roman. Federal Rule of Criminal Procedure 31(c), however, provides in pertinent part that a defendant may be found guilty of "an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense." 18 U.S.C. section 2113(a) specifically makes attempted bank robbery an offense.

Appellants Jackson and Allen . . . seek to distinguish the instant case from Stallworth. They claim that while the conduct of the defendants in that case could properly support a finding of attempted bank robbery, this is not true in the case at bar.

In Stallworth, the Government provided Rodney Campbell, an informant who had participated in numerous bank robberies, with an undercover vehicle outfitted with a tape recorder and monitoring equipment on the understanding that he would aid in apprehending his former accomplices. Campbell rejoined his companions, and he transported the group in his undercover vehicle as they cased several banks in Queens.

On Wednesday, January 21, they began actual preparations for a robbery by stealing ski masks from a department store, surgical gloves from a hospital, and purchasing a hacksaw and roofing nails to "fix" a shotgun. On Thursday, January 22, the gang selected a target bank in Whitestone, had one member enter it and report on its physical layout, and scheduled the robbery for Friday morning.

On Friday morning, January 23, Campbell and company assembled with a revolver, sawed-off shotgun, and other paraphernalia for a hold-up. On their way to the bank in the undercover vehicle they covered their fingers with bandaids, their hands with the surgical gloves, and put on the ski masks. Gasoline-soaked newspapers were placed under the seats of the car in preparation for its destruction after the getaway.

The car entered the parking lot of the shopping center in which the bank was located and one Sellers got out. He strolled past the bank several times, peeking in at each opportunity, while the car circled the shopping center. Finally, the vehicle pulled up directly in front of the bank and Sellers, armed with the sawed-off shotgun and positioned at an adjacent liquor store, started to approach the bank. Campbell said "let's go," and the occupants of the car reached for the doors. Immediately, FBI agents and New York City policemen who had staked out the parking lot and were monitoring the gang's conversations moved in and arrested the men.

Chief Judge Kaufman, writing for the court, selected the two-tiered inquiry of United States v. Mandujano, . . . as stating the proper test for determining whether the foregoing conduct constituted an attempt. He observed that this analysis "conforms closely to the sensible definition of an attempt proffered by the American Law Institute's Model Penal Code." . . .

The draftsmen of the Model Penal Code recognized the difficulty of arriving at a general standard for distinguishing acts of preparation from acts constituting an attempt. They found general agreement that when an actor committed the "last proximate act," that is, when he had done all that he believed necessary to effect a particular result which is an element of the offense, he committed an attempt. They also concluded, however, that while the last proximate act is sufficient to constitute an attempt, it is not necessary to such a finding. The problem then was to devise a standard more inclusive than one requiring the last proximate act before attempt liability would attach, but less inclusive than one which would make every act done with the intent to commit a crime criminal. . . .

The formulation upon which the draftsmen ultimately agreed required, in addition to criminal purpose, that an act be a substantial step in a course of conduct designed to accomplish a criminal result, and that it be strongly corroborative of criminal purpose in order for it to constitute such a substantial step. The following differences between this test and previous approaches to the preparation-attempt problem were noted:

"First, this formulation shifts the emphasis from what remains to be done - the chief concern of the proximity tests - to what the actor has already done. The fact that further major steps must be taken before the crime can be completed does not preclude a finding that the steps already undertaken are substantial. It is expected, in the normal case, that this approach will broaden the scope of attempt liability.

Second, although it is intended that the requirement of a substantial step will result in the imposition of attempt liability only in those instances in which some firmness of criminal purpose is shown, no finding is required as to whether the actor would probably have desisted prior to completing the crime. Potentially the probable desistance test could reach very early steps toward crime - depending upon how one assesses the probabilities of desistance - but since in practice this test follows closely the proximity approaches, rejection of probable desistance will not narrow the scope of attempt liability.

Finally, the requirement of proving a substantial step generally will prove less of a hurdle for the prosecution than the res ipsa loquitur approach, which requires that the actor's conduct must itself manifest the criminal purpose. The difference will be illustrated in connection with the present section's requirement of corroboration. . . ."

Model Penal Code section 5.01. . . .

The draftsmen concluded that, in addition to assuring firmness of criminal design, the requirement of a substantial step would preclude attempt liability, with its accompanying harsh penalties, for relatively remote preparatory acts. At the same time, however, by not requiring a "last proximate act" or one of its various analogues it would permit the apprehension of dangerous persons at an earlier stage than the other approaches without immunizing them from attempt liability. . . .

Applying the Mandujano test, which in turn was derived in large part from the Model Penal Code's standard, Chief Judge Kaufman concluded that since the Stallworth appellants had intended to execute a successful bank robbery and took substantial steps in furtherance of their plan that strongly corroborated their criminal intent, their attempted bank robbery convictions were proper.

In the case at bar, Chief Judge Mishler anticipated the precise analysis which this Court adopted in the strikingly similar Stallworth case. He then found that on June 14 the appellants, already agreed upon a robbery plan, drove to the bank with loaded weapons. In order to carry the heavy weekend deposit sacks, they recruited another person. Cardboard was placed over the license, and the bank was entered and reconnoitered. Only then was the plan dropped for the moment and rescheduled for the following Monday. On that day, June 21, the defendants performed essentially the same acts. Since the cameras had already been located there was no need to enter the bank again, and since the appellants had arrived at the bank earlier, conditions were more favorable to their initial robbery plan than they had been on June 14. He concluded that on both occasions these men were seriously dedicated to the commission of a crime, had passed beyond the stage of preparation, and would have assaulted the bank had they not been dissuaded by certain external factors, namely, the breaking up of the weekend deposits and crowd of patrons in the bank on the afternoon of June 14 and the detection of the FBI surveillance on June 21.

We cannot say that these conclusions which Chief Judge Mishler reached as the trier of fact as to what the evidence before him established were erroneous. As in Stallworth, the criminal intent of the appellants was beyond dispute. The question remaining then is the substantiality of the steps taken on the dates in question, and how strongly this corroborates the firmness of their obvious criminal intent. This is a matter of degree. . . .

On two separate occasions, appellants reconnoitered the place contemplated for the commission of the crime and possessed the paraphernalia to be employed in the commission of the crime - loaded sawed-off shotguns, extra shells, a toy revolver, handcuffs, and masks - which was specially designed for such unlawful use and which could serve no lawful purpose under the circumstances. Under the Model Penal Code formulation, . . . approved by the Stallworth court, either type of conduct, standing alone, was sufficient as a matter of law to constitute a "substantial step" if it strongly corroborated their criminal purpose. Here both types of conduct coincided on both June 14 and June 21, along with numerous other elements strongly corroborative of the firmness of appellants' criminal intent. The steps taken toward a successful bank robbery thus were not "insubstantial" as a matter of law, and Chief Judge Mishler found them "substantial" as a matter of fact. We are unwilling to substitute our assessment of the evidence for his, and thus affirm the convictions for attempted bank robbery on counts two and three.

The judgments of conviction are affirmed.