United States District Court, D. Nevada
JENNIFER A. DORSEY, District Judge.
A jury convicted defendants Julio De Armas Diaz, Alex Torres Simon, and Alexander Del Valle Garcia of various offenses related to the robbery of a Coach warehouse, the heist of several pharmaceutical delivery vans, and an ultimate plan to rob yet another pharmaceutical delivery van and kidnap its driver. Garcia now moves under Rule 29(c) for acquittal on four of the five counts he was convicted of and asks for a new trial under Rule 33. Docs. 257, 258. Diaz and Simon seek to join in those motions. Docs. 260, 261, 262, 263. After a thorough review of the evidence and evaluation of the parties' arguments, I find that the evidence does not support the jury's conclusion that the defendants completed the substantial step required to sustain their attempted robbery conviction under Ninth Circuit jurisprudence; consequently, their related conviction on count 3 for possession of a firearm in furtherance of that attempt also must be reversed. The motions for acquittal and for a new trial are denied in all other respects.
Defendants Diaz and Simon carried out a series of thefts of designer purses and pharmaceutical drugs between October 2012 and April 2013. Simon then formulated a plan to rob a third pharmaceutical delivery van and kidnap its driver, and he recruited Yordani Corona Del Toro, the government's confidential human source (who recorded conversations with Simon and Diaz), along with Diaz and Garcia to join him in the heist planned for the early morning of April 8, 2013.
In preparation for the heist, on April 7, 2013, Simon and Diaz explained their plan to Del Toro while the three men cased the pharmaceutical van driver's neighborhood. Simon explained that he and Diaz would park in an elementary school parking lot just blocks from the driver's house; Del Toro would be picked up by a then-undisclosed man early in the morning and the four would meet up in the school parking lot. Together they would wait for the driver to make a regular but unauthorized morning stop at home for a breakfast break, where they would apprehend him. The van would then be driven to a warehouse and unloaded, and the driver would eventually be released. During the FBI-recorded car ride conversation, Simon mentioned that he would be bringing a gun to the robbery scene to facilitate the kidnaping.
Thereafter, Simon and Del Toro had additional phone conversations, which Del Toro also caused to be recorded and the FBI translated. In these phone calls, Simon gave Del Toro Garcia's phone number and explained how Del Toro was to meet Garcia, his ride to the heist. At trial, transcripts of the April 7, 2013, car ride conversation and the log of phone calls between Simon and Del Toro were introduced into evidence along with the log of calls between Simon and Garcia. Although defendants raised several evidentiary challenges to the Spanish-to-English translations of statements during the car ride conversation,  they did not contest the admissibility of the transcripts as a general matter. The court gave the jury several limiting instructions, including the instruction that evidence from the car ride conversation could not be used to establish Garcia's participation in the conspiracy.
The evidence showed that on the morning of April 8, 2013, at the previously planned hour, Diaz and Simon drove together to the designated school parking lot; Garcia and Del Toro arrived together in a separate vehicle. As the men sat in the two cars, talking to each other through opened windows, federal agents swooped in and arrested them. A consent search of Simon's and Garcia's cars revealed a gun, a roll of duct tape, and three pairs of gloves. Garcia, Diaz, and Simon were jointly charged in a 10-count indictment.
After a 10-day trial, the jury returned a verdict of guilty on all counts: Garcia was found guilty of conspiracy to interfere with commerce by robbery (count 1), attempted interference with commerce by robbery (count 2), possession of a firearm in furtherance of a crime of violence (count 3), making a false statement to law enforcement (count 4), and conspiracy to commit theft from an interstate shipment (count 7); Diaz was found guilty of the same offenses plus three additional counts of theft from interstate shipment (counts 8, 9, and 10); and Simon was found guilty of counts 1-3, 7-10, plus one additional count of being a felon in possession of a firearm (count 6). Garcia timely moved for a judgment of acquittal under Rule 29(c), making specific arguments for acquittal of counts 1, 2, 3, and 7, but not his false-statement conviction as alleged in count 4, Doc. 259; and he seeks a new trial under Rule 33, incorporating the arguments made in his Rule 29(c) motion but not relating any of his arguments to any specific count. Doc. 258. Simon and Garcia have moved to join in both motions, Docs. 260-263, but did not file their own.
A. Diaz and Simon's Motions for Joinder (Docs. 260, 261, 262, 263)
Both Simon and Diaz move to join in Garcia's motions. Docs. 260, 261, 262, 263. The government has not opposed the joinder requests. However, since neither Simon nor Diaz made any arguments separate from those Garcia urges or otherwise distinguished the scope of their own joinders, their challenge is coextensive with Garcia's and does not extend to the counts on which they were separately convicted. Good cause appearing, the motions for joinder are granted.
B. Rule 29(c) Judgment of Acquittal (Doc. 257)
Federal Rule of Criminal Procedure 29(c) permits a criminal defendant to move for a judgment of acquittal after the jury has been discharged. "A motion for Judgment of Acquittal is reviewed on a sufficiency-of-the-evidence standard." "The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." This standard requires the court to determine that "mere speculation, " and not "reasonable inference" supported the government's case-in-chief and does not permit the court to "assume the function of the jury to make credibility determinations." Garcia moves for a judgment of acquittal on counts 1, 2, 3, and 7. Doc. 259.
1. Count 2-Attempted Interference with Commerce by Robbery
All three defendants were convicted of attempted interference with commerce by robbery for the planned-but-not-completed heist of the final delivery van on the morning of April 8, 2013. An attempt conviction requires both culpable intent and "conduct constituting a substantial step toward commission of the crime that is in pursuit of that intent." Defendants' challenge focuses on the substantial-step prong: they argue that Ninth Circuit authority holds that their acts-convening at the preset meeting location and time with gloves, duct tape, and a gun in the car-fall short of satisfying the substantial step requirement necessary to sustain their conviction for the attempted robbery of the pharmaceutical delivery van parked blocks away. After an exhaustive review of the Ninth Circuit's substantial-step jurisprudence and the evidence in this case, I agree.
A hard-and-fast rule for determining what conduct constitutes a substantial step has defied formulation. The Ninth Circuit has repeatedly recognized that mere preparation to commit a crime is not a substantial step,  nor is it enough that the defendant intended to commit the crime. "A suspect crosses the line separating preparation from attempt when his actions unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances." Whether the defendant has gone far enough towards the commission of the offense depends on a careful analysis of the facts of each case juxtaposed against the circuit's historic treatment of attempt conduct. As the Ninth Circuit panel in U.S. v. Harper  explained:
It is admittedly difficult to draw the line between mere preparation to commit an offense, which does not constitute an attempt, and the taking of a substantial step toward commission of the crime, which does. Various theories have been propounded for determining when the activities of one who intends to commit a crime ripen into an attempt, and they yield varying results in a case like this. We must draw our guidance from our own precedent....
Careful analysis of that precedent leads me to conclude that Garcia, Diaz, and Simon had not taken the substantial step necessary for attempted interference with commerce by robbery before they were apprehended by law enforcement. As the Ninth Circuit panel explained in Hernandez-Cruz v. Holder , in this circuit:
Our cases illustrate that it is not enough to say that the suspect took certain necessary steps, even when intent is unquestionably criminal. In United States v. Still, 850 F.2d 607 (9th Cir. 1988), for example, we held that the defendant had made no substantial step toward the commission of bank robbery when he was arrested after a witness saw him putting on a long blond wig while sitting in a van, with its motor running, approximately 200 feet from the bank. The defendant's intent was crystal clear, as he stated to police upon his arrest: "You did a good job. You caught me five minutes before I was going to rob a bank. That's what I was putting the wig on for." Still nevertheless held that these facts did not establish a substantial step, explaining that they did not establish a sufficiently clear external manifestation of the suspect's specific intent to rob a particular bank in a particular manner in the immediate future.
That the Ninth Circuit draws the line for attempt virtually adjacent to the crime itself is also borne out by United States v. Buffington, United States v. Snell, and United States v. Harper. In Buffington, an informant told law enforcement that three men planned to rob a bank in a certain shopping center and that one of the men would be dressed as a woman. As foretold, Buffington and his two male co-defendants-one dressed as a woman-cased the bank, parked 150 feet from it, exited the car, and stood facing the bank. "By sheer coincidence, a major power outage then occurred, " and while a bank teller was locking the bank door, she noticed one of the men wrapping a scarf over his face and even mentioned to a security guard that the man would be unable to rob the bank because the door was locked. As the ...