The opinion of the court was delivered by: MISHLER
Defendants are charged as follows:
COUNT ONE Conspiracy between June 11, 1976 and June 21, 1976, to commit armed bank robbery of the Manufacturers Hanover Trust Company, 210 Flushing Avenue, Brooklyn, New York (18 U.S.C. § 371);
COUNT TWO Attempted armed bank robbery on June 14, 1976 (18 U.S.C. § 2113(a));
COUNT THREE Attempted armed bank robbery on June 21, 1976 (18 U.S.C. § 2113(a));
COUNT FOUR Possession of unregistered sawed-off shotguns (26 U.S.C. § 5861(d)).
Trial was to the court without a jury. The court finds:
On June 11, 1976, Vanessa Hodges, an unindicted co-conspirator, met Martin Allen through Rea Longhorne, the other unindicted co-conspirator named in Count One. She invited him to join her in a plan for the robbery of a branch of the Manufacturers Hanover Trust Company, located at 210 Flushing Avenue, in Brooklyn. Hodges proposed that the bank be robbed the next Monday, June 14th, at about 7:30 A.M., with the week-end deposits as the target. The scheme contemplated entering the bank at that hour as the manager opened the door of the bank. Allen accepted the invitation, and offered a sawed-off shotgun and.38 caliber pistol for use in the robbery. The next Monday morning at about 7:30 A.M., Allen met with Hodges. They entered a car driven by defendant Robert Jackson. A suitcase in the back seat contained a sawed-off shotgun, shells, material intended as masks, and handcuffs. They arrived at the bank after 8:00 A.M. It was too late to put into operation the first important step in the plan, i.e., entering the bank as the manager opened the door. They retired to a nearby restaurant for food and a pause to reflect on the attendant problems. The group returned to the bank at about 9:00 A.M.; Hodges and Allen exited the car. They observed the bulky night deposits and decided it was too risky to attempt the robbery without another hand. Defendants and Hodges went to the Coney Island section of Brooklyn to seek out defendant William Scott. They found him, and he joined the group after being told of the plan. Allen obtained another sawed-off shotgun. Defendants and Hodges returned to the bank. Scott entered the bank on the pretext of filling out an application for a credit card. He noticed the tellers were separating the night deposits, and that a number of patrons were now in the bank. Scott noted that the bank had a single surveillance camera over the entrance door. In the meantime, Jackson had placed a piece of cardboard with a false license number over the license plate of the car. When Scott reported his observations to his confederates, they decided to abandon the plans for the robbery that day, and rescheduled it for Monday, June 21st, at 7:30 A.M. It was then about 1:30 P.M. The group returned to Coney Island. In preparation for the robbery, they purchased a pair of stockings for Hodges to wear over her head as a disguise and gloves for Hodges, Scott and Allen.
Hodges was arrested on Friday, June 18th, on an unrelated bank robbery charge. She told the arresting agents of the bank robbery planned for the next Monday. F.B.I. agents surveilled the bank on June 21st beginning at 7:00 A.M.
Defendants arrived in the area of the bank at about 7:00 A.M. on June 21st, in the brown Lincoln sedan. It drove past the bank in an easterly direction, circled the block, and then parked at a fire hydrant on Washington Avenue, south of Flushing Avenue. (The bank is located on the southeast corner of Washington Avenue and Flushing Avenue.) Scott exited the vehicle and walked to the corner. He looked into the bank. He then returned to the vehicle. The vehicle then turned left on Flushing Avenue and proceeded in a westerly direction; it made a U-turn and stopped on the southerly side of Flushing Avenue, between Washington Avenue and Waverly Avenue (west of the bank). Thereafter, it proceeded in an easterly direction, past the bank again for two blocks, and turned south on Grand Avenue, where it came to a stop. Jackson got out of the car. The vehicle returned to its previous position on Flushing Avenue, between Washington Avenue and Waverly Avenue, where it remained for about thirty minutes. Defendants, suspecting that they were under surveillance, decided to abandon their plans and leave the area. The vehicle proceeded at an accelerated rate of speed easterly on Flushing Avenue, then southerly on Grand Avenue where they were overtaken by arresting officers. The officers seized a suitcase containing the sawed-off shotguns. One shotgun had an overall length of 24 inches with a barrel length of 14 inches; the other had an overall length of 27 inches and a barrel length of 15 inches. Each gun was loaded with three rounds. Six additional rounds were seized.
I find the defendants, Robert Jackson, William Scott and Martin Allen, guilty as to Counts One and Four. The evidence against defendants on these counts was overwhelming. As to Counts Two and Three, I also find the defendants guilty. Counts Two and Three, however, involve the elusive question of what constitutes an attempt under federal law. Here, the issue of whether defendants had attempted a robbery or were merely engaged in preparation was a close one.
Analysis must begin with the acknowledgement that "attempt" as used in § 2113(a), is not defined. In fact, "there is no comprehensive statutory definition of attempt in federal law." United States v. Heng Awkak Roman, 356 F. Supp. 434, 437 (S.D.N.Y.), aff'd., 484 F.2d 1271 (2d Cir. 1973), cert. denied, 415 U.S. 978, 94 S. Ct. 1565, 39 L. Ed. 2d 874 (1974). Definitions of attempt appear to accrue in direct relation to the number of decisions written on the subject. It is necessary to decide on a formulation of what constitutes an attempt that will distinguish the crime from that of conspiracy as well as justify the heavier penalties that may be imposed when such an offense is committed.
In United States v. Coplon, 185 F.2d 629 (2d Cir. 1950), cert. denied, 342 U.S. 920, 72 S. Ct. 362, 96 L. Ed. 688 (1952), the defendant was convicted of an attempt to deliver classified government documents to a foreign citizen. Although the defendant was arrested before the documents had been proferred to the foreign national - or indeed even before the defendant had removed them from her purse - the Second Circuit affirmed the conviction, rejecting the doctrine that an attempt could not occur unless the defendant had done all that he could to commit the crime, "but has been prevented by intervention from outside." Id. at 633. Judge Learned Hand observed that, although this doctrine may once have been followed, it is certainly not now generally the law in ...