United States v. William Buffington, Ceariaco Cabrellis, and Booker T. Cook, Defendants
815 F.2d 1292 (1987)
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Rule of Law:
To sustain a conviction for attempt, the government must prove both culpable intent and conduct constituting a substantial step toward the commission of the crime, which must be more than mere preparation and strongly corroborate the firmness of the defendant's criminal intent.
Facts:
- An informant told police that William Buffington, Ceariaco Cabrellis, and Jimmy Cabrellis planned to rob a bank in a specific shopping center, and that Ceariaco Cabrellis would be dressed as a woman.
- On December 17, 1982, a police officer observed a vehicle registered to Ceariaco Cabrellis driving slowly around the Farmers Bank in that shopping center.
- Five days later, on December 22, Buffington, Booker T. Cook, and Cabrellis (who was dressed as a woman) drove a Pontiac into the same shopping center.
- They drove slowly past the Bay View Federal Savings, with the occupants looking toward it, then drove behind the bank, made a U-turn, and drove past it again.
- Buffington parked about 150 feet away from the bank, entered a Payless store, and watched the bank from a window for three minutes without shopping.
- Cook, wearing multiple layers of clothing and a scarf, and Cabrellis exited the car and stood by it, facing the bank.
- After a power outage occurred, a bank teller locked the front door, at which point she saw Cook wrapping his scarf over his face.
- Buffington returned to the car, and all three re-entered it and began to drive away before being stopped by police.
Procedural Posture:
- William Buffington, Ceariaco Cabrellis, and Booker T. Cook were indicted by a U.S. grand jury on four counts, including attempted bank robbery.
- In the U.S. District Court, the appellants filed a motion to suppress evidence seized from their vehicle.
- The district court initially granted the suppression motion because the government refused to produce statements from a confidential informant.
- The government filed an interlocutory appeal of the suppression order but later voluntarily dismissed it.
- The district court then granted the government's motion to reconsider the suppression issue, allowing the government to argue its case without relying on the informant's information.
- Upon reconsideration, the district court denied the motion to suppress.
- Following a jury trial, the appellants were convicted on all four counts.
- The appellants appealed their convictions to the United States Court of Appeals for the Ninth Circuit.
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Issue:
Does conduct consisting of driving past a bank, observing it from a distance, and possessing firearms and disguises, without any movement toward the bank or other unequivocal act, constitute a 'substantial step' sufficient to support a conviction for attempted bank robbery?
Opinions:
Majority - Poole, Circuit Judge
No. The defendants' conduct did not cross the boundary between mere preparation and a substantial step required for an attempt conviction. To prove an attempt, the government must show both intent and a 'substantial step' toward committing the crime. Without the informant's tip, which the prosecution agreed not to use, the evidence of intent to rob a specific federal bank was insufficient, as their ambiguous actions could have been directed at another store or been innocent. More importantly, even if intent was presumed, their actions did not amount to a substantial step; they never moved toward the bank, never displayed weapons, and their conduct remained 'entirely tentative and unfocused.' Their actions constituted an 'appreciable fragment' of the crime. Therefore, the convictions for attempt, conspiracy, and use of a firearm in a federal felony are reversed due to insufficient evidence. However, the initial investigatory stop was a valid 'Terry' stop justified by reasonable suspicion based on the officers' observations of their unusual conduct and knowledge of Cabrellis's violent past. The discovery of firearms during this lawful stop means the convictions for being felons in possession of a firearm are affirmed.
Analysis:
This case provides a critical clarification of the 'substantial step' requirement for the crime of attempt, distinguishing it from 'mere preparation.' The court's decision emphasizes that ambiguous conduct, without more direct evidence of intent (such as an informant's testimony or a defendant's admission), is insufficient to ground a conviction for attempt. It sets a precedent that surveillance and possession of criminal tools, without an unequivocal move towards the target, will likely be deemed preparatory. The ruling also affirms that significant force can be used in a 'Terry' stop based on reasonable officer safety concerns without converting it into an arrest requiring probable cause, thus preserving evidence found during such stops.
