Appeals from judgments of conviction on one count in violation of 18 U.S.C. § 371, on two counts in violation of 18 U.S.C. § 2113(a), and on one count in violation of 26 U.S.C. § 5861(d), entered in the Eastern District of New York after trial without a jury before Chief Judge Jacob Mishler. Judgments affirmed.
Lumbard and Oakes, Circuit Judges, and Frederick vP. Bryan, Senior District Judge.*fn*
BRYAN, Senior District Judge:
Robert Jackson, William Scott, and Martin Allen appeal from judgments of conviction entered on November 23, 1976 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, in violation of 18 U.S.C. § 371. Counts two and three each charged appellants with an attempted robbery of the branch on June 14 and on June 21, 1976, respectively, in violation of 18 U.S.C. §§ 2113(a) and 2. Count four charged them with possession of two unregistered sawed-off shotguns on June 21, 1976, in violation of 26 U.S.C. § 5861(d) and 18 U.S.C. § 2.
After a suppression hearing on July 23, 1976 and a one-day trial on August 30, 1976, Chief Judge Mishler filed a memorandum of decision finding each defendant guilty on all four counts.*fn1
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, 543 F.2d 1038 (2d Cir. 1976), which set forth the applicable legal principles. For the reasons which follow, we affirm the convictions of all three appellants on all four counts.
The Government's evidence at trial consisted largely of the testimony of Vanessa Hodges, an unindicted co-conspirator, and of various FBI agents who surveilled the Manufacturers Hanover branch on June 21, 1976. Since the facts are of critical importance in any attempt case, United States v. Stallworth, supra, at 1039, we shall review the Government's proof in considerable detail.*fn2
On June 11, 1976, Vanessa Hodges was introduced to appellant Martin Allen by Pia Longhorne, another unindicted co-conspirator. Hodges wanted to meet someone who would help her carry out a plan to rob the Manufacturers Hanover branch located at 210 Flushing Avenue in Brooklyn, and she invited Allen to join her. Hodges proposed that the bank be robbed the next Monday, June 14th, at about 7:30 A. M. She hoped that they could enter with the bank manager at that time, grab the weekend deposits, and leave. Allen agreed to rob the bank with Hodges, and told her he had access to a car, two sawed-off shotguns, and a. 38 caliber revolver.
The following Monday, June 14, Allen arrived at Longhorne's house about 7:30 A. M. in a car driven by appellant Robert Jackson. A suitcase in the back seat of the car contained a sawed-off shotgun, shells, materials intended as masks, and handcuffs to bind the bank manager. While Allen picked up Hodges at Longhorne's, Jackson filled the car with gas. The trio then left for the bank.
When they arrived, it was almost 8:00 A. M. It was thus too late to effect the first step of the plan, viz., entering the bank as the manager opened the door. They rode around for a while longer, and then went to a restaurant to get something to eat and discuss their next move. After eating, the trio drove back to the bank. Allen and Hodges left the car and walked over to the bank. They peered in and saw the bulky weekend deposits, but decided it was too risky to rob the bank without an extra man.
Consequently, Jackson, Hodges, and Allen drove to Coney Island in search of another accomplice. In front of a housing project on 33rd Street they found appellant William Scott, who promptly joined the team. Allen added to the arsenal another sawed-off shotgun obtained from one of the buildings in the project, and the group drove back to the bank.
When they arrived again, Allen entered the bank to check the location of any surveillance cameras, while Jackson placed a piece of cardboard with a false license number over the authentic license plate of the car.*fn3 Allen reported back that a single surveillance camera was over the entrance door. After further discussion, Scott left the car and entered the bank. He came back and informed the group that the tellers were separating the weekend deposits and that a number of patrons were now in the bank. Hodges then suggested that they drop the plans for the robbery that day, and reschedule it for the following Monday, June 21. Accordingly, they left the vicinity of the bank and returned to Coney Island where, before splitting up, they purchased a pair of stockings for Hodges to wear over her head as a disguise and pairs of gloves for Hodges, Scott, and Allen to don before entering the bank.
Hodges was arrested on Friday, June 18, 1976 on an unrelated bank robbery charge, and immediately began cooperating with the Government. After relating the events of June 14, she told FBI agents that a robbery of the Manufacturers branch at 210 Flushing Avenue was now scheduled for the following Monday, June 21. The three black male robbers, according to Hodges, would be heavily armed with hand and shoulder weapons and expected to use a brown four-door sedan equipped with a cardboard license plate as the getaway car. She told the agents that Jackson, who would drive the car, was light-skinned with a moustache and a cut on his lip, and she described Allen as short, dark-skinned with facial hair, and Scott as 5 feet 9 inches, slim build, with an afro hair style and some sort of defect in his right eye.
At the request of the agents, Hodges called Allen on Saturday, June 19, and asked if he were still planning to do the job. He said that he was ready. On Sunday she called him again. This time Allen said that he was not going to rob the bank that Monday because he had learned that Hodges had been arrested and he feared that federal agents might be watching. Hodges nevertheless advised the agents that she thought the robbery might still take place as planned with the three men proceeding without her.
At about 7:00 A. M. on Monday, June 21, 1976, some ten FBI agents took various surveilling positions in the area of the bank. At about 7:39 A. M. the agents observed a brown four-door Lincoln, with a New York license plate on the front and a cardboard facsimile of a license plate on the rear, moving in an easterly direction on Flushing Avenue past the bank, which was located on the southeast corner of Flushing and Washington Avenues. The front seat of the Lincoln was occupied by a black male driver and a black male passenger with mutton-chop sideburns. The Lincoln circled the block and came to a stop at a fire hydrant situated at the side of the bank facing Washington Avenue, a short distance south of the corner of Flushing and Washington.
A third black male, who appeared to have an eye deformity, got out of the passenger side rear door of the Lincoln, walked to the corner of Flushing and Washington, and stood on the sidewalk in the vicinity of the bank's entrance. He then walked south on Washington Avenue, only to return a short time later with a container of coffee in his hand. He stood again on the corner of Washington and Flushing in front of the bank, drinking the coffee and looking around, before returning to the parked Lincoln.
The Lincoln pulled out, made a left turn onto Flushing, and proceeded in a westerly direction for one block to Waverly Avenue. It stopped, made a U-turn, and parked on the south side of Flushing between Waverly and Washington - a spot on the same side of the street as the bank entrance but separated from it by Washington Avenue. After remaining parked in this position for approximately five minutes, it pulled out and cruised east on Flushing past the bank again. The Lincoln then made a right onto Grand Avenue, the third street east of the bank, and headed south. It stopped halfway down the block, midway between Flushing and Park Avenues, and remained there for several minutes. During this time Jackson was seen working in the front of the car, which had its hood up.
The Lincoln was next sighted several minutes later in the same position it had previously occupied on the south side of Flushing Avenue between Waverly and Washington. The front license plate was now missing. The vehicle remained parked there for close to thirty minutes. Finally, it began moving east on Flushing Avenue once more, in the direction of the bank.
At some point near the bank as they passed down Flushing Avenue, the appellants detected the presence of the surveillance agents. The Lincoln accelerated down Flushing Avenue and turned south on Grand Avenue again. It was overtaken by FBI agents who ordered the appellants out of the car and arrested them. The agents then observed a black and red plaid suitcase in the rear of the car. The zipper of the suitcase was partially open and exposed two loaded sawed-off shotguns,*fn4 a toy nickelplated revolver, a pair of handcuffs, and masks. A New York license plate was seen lying on the front floor of the car. All of these items were seized.
In his memorandum of decision, Chief Judge Mishler concluded that the evidence against Jackson, Scott, and Allen was "overwhelming" on counts one and four. 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," United States v. Stallworth, supra, at 1039, Chief Judge Mishler applied the following two-tiered inquiry formulated in United States v. Mandujano, 499 F.2d 370, 376 (5th Cir. 1974), cert. denied, 419 U.S. 1114, 42 L. Ed. 2d 812, 95 S. Ct. 792 (1975):
First, the defendant must have been acting with the kind of culpability otherwise required for the commission of the crime which he ...