Facts
- Late at night, police in Buena Park, California found Trina Devay Harper and Aziz Sharrieff sitting with a third person in a rented car parked in a Home Savings Bank lot near the bank and its ATM.
- Officers searched the car and nearby area and located robbery-related items, including a stun gun, duct tape, and latex surgical gloves.
- Police also found two loaded handguns hidden under a bush a few feet from the car after a witness reported seeing an occupant bend near that spot.
- Additional gloves and .357 ammunition were found on the third person; the ammunition was linked to one of the recovered firearms.
- Earlier that evening, Harper used another person’s ATM card to initiate a withdrawal at the bank’s ATM.
- Harper did not take the cash from the dispenser; instead, she left it so the machine would register a “bill trap” (cash stuck), triggering an ATM shutdown and an automatic service call.
- Harper knew the bill-trap/shutdown procedure from prior bank work.
- The government’s theory was that Harper and her companions planned to wait for the service technician and rob the technician once the ATM vault was opened.
- A jury convicted Harper and Sharrieff of conspiracy to commit bank robbery (18 U.S.C. § 371), attempted bank robbery (18 U.S.C. § 2113(a)), and carrying a firearm during and in relation to a crime of violence (18 U.S.C. § 924(c)).
Issues
- Whether the evidence was sufficient to prove attempted bank robbery under 18 U.S.C. § 2113(a), specifically whether defendants took a “substantial step” beyond preparation.
- Whether the evidence was sufficient to sustain the conspiracy convictions under 18 U.S.C. § 371.
- Whether the evidence was sufficient to sustain the § 924(c) firearm convictions where the attempt convictions were reversed.
- Whether the district court’s “Arizona blind strike” jury-selection method deprived defendants of the statutory number of peremptory challenges.
- Whether the district court’s Sentencing Guidelines calculations (including adjustments tied to Harper’s role and bank-related know-how) were supported and, given the partial reversal, what resentencing was required.
Decision
- Reversed the attempted bank robbery convictions because the government proved intent and preparation but did not prove a substantial step toward taking money “by force and violence, or by intimidation.”
- Affirmed the conspiracy convictions because the evidence supported an agreement to rob and overt acts in furtherance of that plan (including setting the ATM bill trap and assembling tools and firearms consistent with the planned robbery).
- Affirmed the § 924(c) convictions because the firearms were carried during and in relation to a qualifying predicate crime of violence that remained valid (the conspiracy), and the evidence linked the guns to the planned robbery.
- Rejected the challenge to the “Arizona blind strike” procedure, concluding defendants were not deprived of the peremptory challenges provided by law.
- Remanded for resentencing in light of the reversal of the attempt counts and to address sentencing issues identified on appeal.
Legal Principles
- Attempt under 18 U.S.C. § 2113(a) requires proof of intent plus a substantial step that strongly corroborates that intent; extensive planning and preparatory conduct, without a direct move toward the forceful taking, is not enough.
- The line between preparation and attempt turns on what the defendants actually did, not only what they planned; waiting near the target with weapons and tools may show intent but can still fall short of an attempt absent action directed at executing the robbery.
- Conspiracy under 18 U.S.C. § 371 requires an agreement and an overt act; acts that are too preliminary to constitute attempt can still satisfy conspiracy’s overt-act requirement.
- A § 924(c) conviction can be sustained if the firearm was carried during and in relation to a valid predicate crime of violence; reversal of a related substantive count does not automatically defeat § 924(c) if another predicate remains and the firearm evidence supports the jury’s finding.
- Jury-selection methods do not violate peremptory-challenge rights where the court provides the statutory number of peremptory challenges and the parties have notice and a fair chance to exercise them.
- Sentencing adjustments must be supported by specific findings tied to the Guidelines’ requirements, and a partial reversal of convictions generally requires resentencing on the remaining counts.
Conclusion
United States v. Harper held that even strong proof of a planned bank robbery—creating an ATM “bill trap,” waiting in a car near the bank, and possessing guns and robbery tools—did not amount to attempted bank robbery without a substantial step toward using force or intimidation, but the same evidence supported conspiracy and § 924(c) convictions; the Ninth Circuit therefore reversed the attempt counts, affirmed the remaining convictions, upheld the jury-selection method, and remanded for resentencing.