Unpublished Disposition, 935 F.2d 276 (9th Cir. 1989)

MEMORANDUM^* 

Following a trial in which the jury found defendants Jerez and Panameno guilty of both conspiracy and attempt to export firearms without a license, the district court granted the defendants' motion for judgment of acquittal pursuant to Fed. R. Crim. P. 29. The government appeals, seeking reinstatement of the jury verdict. We affirm the judgment of acquittal on the attempt count, reverse the judgment of acquittal on the conspiracy count, and remand for sentencing.

FACTS

The defendants are commercial airline pilots for Transportes Aeros Centro Americanos International Airlines of El Salvador ("TACA"). On December 24, 1988, Jerez entered the South Bay Armory, a gun shop operated by a federally-licensed firearms dealer in Carson, California, and asked to buy three handguns. The sales clerk, Francisco Silva, had Jerez complete a "Dealer's Record of Sale", an application required under California law for handgun sales, and informed Jerez of the fifteen-day waiting period under the law. Jerez told Silva that he was a pilot for TACA and that he intended to take the guns to El Salvador.

A day or two later, other TACA pilots, including defendant Panameno, asked Jerez to purchase guns for them too, so that they could protect themselves against the dangers of El Salvador's civil war. On December 27, 1988, accompanied by his girlfriend Maria Esther Varela, a TACA flight attendant, Jerez returned to the South Bay Armory to purchase four more handguns. Silva's and Jerez's versions of what transpired during this visit differ. According to Silva's testimony at trial, Silva asked Jerez what he was planning to do with the guns, and Jerez again stated that the guns were going to El Salvador. Silva then asked Jerez whether he knew that an export license was required to export the guns, and Jerez told Silva not to worry because, "We got it all taken care of." According to Jerez's trial testimony, Silva did not then or ever mention the export license requirement.

On January 7, 1989, Jerez returned to the South Bay Armory and inquired about the guns he had ordered, but Silva told him the paperwork was not yet ready. According to Silva's testimony, he again asked Jerez about the required export license, and Jerez again told him not to worry, saying, "We got everything taken care of." Jerez denied this conversation.

On the morning of January 13, 1989, Jerez returned to the store, this time with Panameno, and told Silva he needed the guns before their flight to El Salvador that night. During this visit Jerez also purchased a semi-automatic shotgun. Silva told Jerez to return in the afternoon to pick up the shotgun and the seven handguns. Silva then notified Special Agent Sam Oddo of the United States Custom Service ("Customs") that Jerez would be picking up the weapons that afternoon and was planning to take them to El Salvador that night. Agent Oddo set up surveillance at the South Bay Armory. Silva later received $2500 for this tip and for testifying at the defendants' trial.

Jerez and Panameno returned to the store that afternoon and took possession of the shotgun and seven handguns after completing the required federal forms evidencing the transaction. According to Silva, he received three telephone calls from Customs agents while Jerez and Panameno were in the store, and in each call the agents reminded him to tell Jerez and Panameno about the required export license. Silva testified that he did in fact tell Jerez about the license requirement each time he received a call from the agents and that Panameno was standing next to Jerez on the latter two occasions. According to Silva, Jerez just laughed the first time Silva told him about the requirement. The second time, Jerez looked at Panameno, laughed again, and said, "Don't worry. We got everything taken care of." The third time, Jerez again said, "Don't worry. We got everything okayed." Jerez and Panameno both denied that Silva ever informed them of the export license requirement.

The defendants then returned to their hotel to rest before their scheduled midnight cargo flight to El Salvador. At about 11:00 p.m., they took a shuttle bus to Los Angeles International Airport, and went to review their flight plans at the TACA airport office. Jerez was carrying a suitcase containing five of the handguns and a cardboard box containing the shotgun. He wrote his name, "crue" (an evident misspelling of "crew"), "737" (the type of plane), and "2511" (the flight number) on a TACA damaged baggage tag (not a baggage check-in tag) and put it on the suitcase. He wrote his name, "737" and "2511" on the box and tagged the box with another TACA damaged baggage tag on which he wrote "crue" and "2511". Panameno's suitcase, which contained the other two handguns, had a personal identification tag but no baggage check-in or damaged baggage tag.

While Jerez and Panameno were in the TACA office, an announcement came over a two-way radio that the other TACA flight that evening, a passenger flight, was being delayed due to intensified Customs checks. Both Jerez and Panameno admitted hearing of the stepped-up checks while they were in the TACA office. According to a written statement Jerez made to Customs agents later that night, Jerez received the same report from a TACA baggage handler with whom he spoke in the TACA office. In the statement, Jerez also said that he asked the baggage handler if it would be possible to take his baggage to the plane, because he had a gun inside. When the baggage handler said that Customs was searching bags, Jerez told the baggage handler not to take the bags after all. At trial, Jerez denied ever talking to anyone about his baggage.

Also in the TACA office that night was Sergio Brambilla, the Assistant Station Manager. Jerez did not speak to him, but Panameno did. In both a written statement and in his testimony at trial, Panameno stated that he told Brambilla about the guns, and Brambilla responded that they could not take the guns on board because he could not "clear" them. Panameno then decided against taking them and instructed Jerez to have his girlfriend Varela pick up the baggage and take it back to the hotel. Jerez's testimony confirmed these events. Brambilla testified that neither defendant asked him for a permit to take the guns on board the aircraft and that he was not authorized to issue such a permit anyway. He also testified that neither Jerez nor Panameno asked him to check in their baggage. Finally, Brambilla testified that one of the defendants--he could not remember which--sought his permission to leave a carry-on bag in the TACA office because it had a gun in it, but that he refused to permit this.

When it was time to board the midnight flight, Jerez and Panameno put the two bags and the box containing the guns in the corridor outside the TACA office, where they were later picked up by Varela and another TACA flight attendant and taken outside the airport. Jerez and Panameno then headed to the jetway, which was at least one city block away from the TACA office. On the jetway Jerez and Panameno were stopped and questioned by Customs Special Agents Robert Czyrklis and William Siebert, who asked and received permission to search their hand baggage. The search revealed receipts for the gun purchases. When questioned about the guns, Jerez stated that he did not have them with him. When asked a second time, he denied having picked up the guns and claimed that they were still at the South Bay Armory. The Customs agents then pointed out that the receipts indicated that he had picked up the weapons that day, and asked him a third time where the guns were. According to Siebert's testimony, this time Jerez said the guns were behind the TACA airlines counter because he did not have the necessary export license. In contrast, Jerez testified that he actually said the guns were in the TACA office because there was nobody to "clear" the weapons. It was during this questioning on the jetway that other Customs agents detained Varela and her companion at the departure curb outside the airport terminal and found the guns in the baggage.

Jerez and Panameno were taken into custody and escorted to the Customs office near the airport, where Agent Oddo subjected them to further questioning. According to Oddo, Jerez said during this round of questioning that he had asked somebody at the TACA office about getting a permit to take a gun on board and had called Varela to have her pick up the guns once he learned that he could not obtain a permit. Jerez and Panameno eventually made written statements, which were admitted into evidence. However, at trial both of them denied any knowledge of the export license requirement, and they claimed that the Customs agents essentially had dictated the written statements to them.

The jury returned guilty verdicts against Jerez and Panameno on two of the three counts in the indictment.¹  One count was for attempt to export firearms designated on the United States Munitions List without the required export license, in violation of 22 U.S.C. § 2778 and 22 C.F.R. Secs. 121.1 and 127.1(a). The other count was for conspiracy to commit the same offense, in violation of 22 U.S.C. § 371.

The district court subsequently held a post-trial hearing on the defendants' motion for judgment of acquittal, made pursuant to Fed. R. Crim. P. 29. The defendants initially had entered oral motions for judgment of acquittal under Rule 29(a), both at the close of the government's evidence and at the close of all the evidence, but the court deferred ruling on the latter motion pursuant to Rule 29(b). In the post-trial hearing, Judge Gadbois granted the defendants' motion for judgment of acquittal on both counts. The government filed a timely notice of appeal, and we have jurisdiction pursuant to 28 U.S.C. § 1291.

DISCUSSION

As a threshold issue, defendants challenge the government's right to appeal. 18 U.S.C. § 3731 authorizes the government to appeal a judgment of a district court, "except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution." The present appeal does not contravene the double jeopardy clause. In United States v. Rojas, 554 F.2d 938 (9th Cir. 1977), the district court had granted the defendant's Rule 29 motion for judgment of acquittal after the jury returned a guilty verdict. We permitted the government's appeal, explaining:

In this situation, a successful government appeal will not result in the defendant's required subjection to a second trial, but rather will merely cause reinstatement of the jury's guilty verdict. Since no further fact-finding proceedings will be necessary upon reversal and remand, the defendant's double jeopardy interests are not implicated by the appeal.

554 F.2d at 941 (footnotes omitted); see also United States v. Wilson, 420 U.S. 332, 352-53 (1975); United States v. Sharif, 817 F.2d 1375, 1376 (9th Cir. 1987).² 

If the district court had granted the defendants' Rule 29(a) motions and entered judgments of acquittal before the case went to the jury, the judgments would be unreviewable, because a reversal would entail retrial of the defendants and thereby run afoul of the double jeopardy clause. However, because the district court deferred its ruling until the jury had returned its guilty verdicts, the double jeopardy clause does not bar out consideration of the government's appeal.

Rule 29 authorizes the district court to grant a defendant's motion for judgment of acquittal "if the evidence is insufficient to sustain a conviction...." In reviewing the district court's grant of a Rule 29 motion, we apply the same standard as that applied by the district court. Sharif, 817 F.2d at 1377. We must determine whether, considering the evidence in the light most favorable to the government, any rational jury could have found the defendants guilty beyond a reasonable doubt. Id. (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Thus, in reviewing the district court's determination, we independently assess the sufficiency of the evidence. See Rojas, 554 F.2d at 943; United States v. Adames, 878 F.2d 1374, 1375 (11th Cir. 1989).

A district court deciding a Rule 29 motion is not placed in the jurors' seats. As we have cautioned:

In ruling on a Rule 29(c) motion, a district court must bear in mind that "it is the exclusive function of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts."

Rojas, 554 F.2d at 943 (quoting United States v. Nelson, 419 F.2d 1237, 1241 (9th Cir. 1969)). In its oral ruling granting the defendants' Rule 29 motion, the district court unfortunately usurped the jury's role, itself judging the credibility of witnesses and resolving evidentiary conflicts:

The defendants were, in my judgment, credible witnesses. With the possible exception of some waffling, actually, in the jetway, they never lied about what they were doing. They just said the whole thing right up front.

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I don't much trust the testimony of a guy [Silva] who gets $2500 of our tax money for making a couple of telephone tips and is thereupon required to do his best to convict the defendants....

I'm bothered about the guy in the TACA office at midnight [Brambilla].... He doesn't remember, he says, what the defendants said about the permits that evening, and they testify that they said that they were anxious to do the thing in a regular and orderly fashion....

I'm not prepared to say that I disbelieve the defendants' testimony on that issue; therefore, I must have reasonable doubt and conclude that the jury made a mistake.

The district court used these improper determinations to acquit the defendants. We must disregard the district court's evaluations and independently decide whether the evidence, considered in the light most favorable to the government, was in fact legally insufficient to support the jury's guilty verdicts on the offenses of attempt and conspiracy. We consider each offense in turn.

Under the Arms Export Control Act, 22 U.S.C. § 2778(a), the President is authorized to issue regulations controlling the import and export of certain "defense articles", which he has designated on the United States Munitions List, 22 C.F.R. Sec. 121.1. Section 2778(c) makes it a crime for any person to "willfully violate [ ]" section 2778 or the regulations issued under it. One of those regulations, 22 C.F.R. Sec. 127.1, makes it unlawful for a person "to export or attempt to export" a defense article on the Munitions List without first obtaining the required license from the Office of Munitions Control in the Department of State. In this case, the parties stipulated that the seven handguns and the shotgun are all on the Munitions List, that an export license was required to export them, and that the defendants did not obtain the required license.

We have interpreted the term "willfully" in section 2778(c) to mean that the government must prove that a defendant acted with specific intent, i.e., knew that it was illegal to export the defense articles without a license. See United States v. Lizarraga-Lizarraga, 541 F.2d 826 (9th Cir. 1976). The elements of attempt are (1) culpable intent and (2) the taking of a "substantial step" toward actually committing the criminal act. United States v. Buffington, 815 F.2d 1292, 1301 (9th Cir. 1987). In this case, to be guilty of attempt, the defendants must have intended to export the arms, knowing that it was illegal to do so without a license, and must have taken a substantial step toward actually exporting the arms.

We conclude that the evidence of intent was legally sufficient to support the jury's guilty verdict as to both defendants. Both admitted that they intended to take the arms with them to El Salvador. Silva testified that he told Jerez of the export license requirement five different times. He also testified that Panameno was standing next to Jerez on two of the occasions when he informed Jerez that an export license was required, and that on one of these occasions, Jerez turned to Panameno and laughed. Finally, Agent Siebert testified that Jerez told him on the jetway that he decided to leave the arms at the TACA office because he lacked the required export license.

The second element of attempt, the "substantial step," is "conduct that is strongly corroborative of the firmness of a defendant's criminal intent." Buffington, 815 F.2d at 1301. "Mere preparation does not constitute a substantial step." Id. Elaborating on what does constitute a substantial step, we have stated:

[T]here must be some appreciable fragment of the crime committed, it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter, and the act must not be equivocal in nature.

Id. at 1302 (quoting United States v. Mandujano, 499 F.2d 370, 376 (5th Cir. 1974), cert. denied, 419 U.S. 1114 (1975)). Although the inquiry is essentially fact-bound, the reviewing court has a role: to see whether there is proof of conduct that goes beyond planning or preparation and qualifies as a partial consummation of the criminal offense. See United States v. Scott, 767 F.2d 1308, 1312 (9th Cir. 1985).

It is undisputed that the defendants took the guns with them to the airport, but left them behind when they left the TACA office and headed to the jetway to board the plane, at that point clearly having abandoned any plan to take them on the flight. Considering the evidence in the light most favorable to the government, the most that a rational jury could conclude was that the pilots had intended to take the guns but decided to leave them behind when they heard about the increased intensity with which Customs was conducting its checks that night.³  Our prior case law strongly suggests that this conduct is not enough to meet the substantial step test.

In Buffington we overturned a conviction for attempted bank robbery, finding both that the defendants lacked culpable intent and that they had not taken a substantial step. The defendants had armed themselves, driven into the parking lot of the shopping mall where the bank was located, and were reconnoitering the bank. However, none of them actually made a move toward the bank. We found that these actions could not constitute a substantial step. Similarly, Jerez and Panameno took the guns with them to the airport and apparently considered taking them onto the plane. However, they left the guns behind when they moved to the jet, having made arrangements to have them picked up and removed from the airport.

In United States v. Still, 850 F.2d 607 (9th Cir. 1988), cert. denied, 489 U.S. 1060 (1989), we reversed a conviction for attempted bank robbery based on insufficient evidence to support a finding that the defendant had taken a substantial step. A bystander called the police after seeing the defendant don a wig while sitting in a van 200 feet from a bank. The defendant drove off when the police arrived. When the police caught up with him, he volunteered that he had intended to rob the bank. He described the entire scheme in detail, and the police found various pieces of incriminating evidence in the van, including a hoax bomb, a demand note, and a police scanner tuned to the local police department channel. We found that while the element of intent was satisfied, there was no substantial step because the defendant neither made a move toward the bank nor performed any "actions that are analytically similar to such movement." Id. at 610. Jerez and Panameno engaged in similar preparatory activity, but then were "scared off" by the threat of Customs checks. They never made a move toward the jet with the guns.

In United States v. Candoli, 870 F.2d 496 (9th Cir. 1989), the defendant appealed a conviction for aiding and abetting attempted arson. Her co-defendants, accused of attempted arson, had been driving near the scene of the crime nearly two weeks before the arson, and were stopped by patrolling police officers. The officers learned that the car had been reported stolen, and they found gasoline and matches in the car's trunk, but they did not bring in the co-defendants until after the arson. Relying on Buffington and Still, we found the co-defendants' actions to be legally insufficient to constitute a substantial step, and reversed the appellant's conviction for aiding and abetting.

This trilogy of cases makes clear that there must be more than the presence of a defendant near the place where a crime could be consummated--even a defendant in possession of the wherewithal to commit the crime and the intent to commit it if the conditions are right--to satisfy the substantial step requirement. An event such as the arrival of the police may be the only inhibitor, but so long as the activity has not moved beyond preparation and planning, there is no "substantial step" and no "attempt." Jerez and Panameno, having gone to the airport with the guns, certainly had engaged in preparatory conduct. But once they headed to the jetway, leaving the guns behind in their unchecked baggage, they had made a clear choice not to proceed past preparation. That the threat of increased Customs checks may have influenced their choice does not convert preparation into a substantial step in the execution.⁴ 

The government contends that United States v. Snell, 627 F.2d 186 (9th Cir. 1980), cert. denied, 450 U.S. 957 (1981), requires us to reinstate the jury's guilty verdicts on the attempt charges. In Snell, the defendant and two others had hatched a scheme to rob a bank by first kidnapping the bank manager and his wife, and then forcing the manager to let them into the bank. They observed the manager's daily routine and collected guns, gloves, rope, and other materials. When they went to the manager's house to kidnap him and his wife, they spotted a highway patrol car and aborted the plan. They returned to the manager's house the next day and knocked on the door, but they again aborted the plan when the manager's wife answered the door accompanied by a Great Dane. The court found that they had taken a substantial step, because the plan was stopped "only by the fortuity of a police car on one occasion and the presence of a Great Dane at the intended victim's house on another." Id. at 188. The government argues that Jerez and Panameno similarly decided against proceeding with their criminal activity merely because of the fortuity of the increased checks that Customs was performing that night.

That may be, but the government overlooks the fact that in Snell, the defendant clearly had proceeded past the preparatory stage by going to the bank manager's house twice. In fact, in Buffington we distinguished Snell on this very ground, pointing out that Snell's entry into the bank manager's home was analytically similar to entry into the bank. Buffington, 815 F.2d at 1303. Only after Snell and his comrades had committed themselves to the kidnapping did the fortuitous appearances of the police and the Great Dane cause them to abandon their plan. In contrast, Jerez and Panameno changed their minds at the TACA office, before commencing the block-long walk to the jetway and the plane itself. Still, not Snell, is the better analogy to our case. In Still the defendant drove to a position within striking distance of the bank--but did not approach the bank--and then changed his mind when he sighted the police.

The government also relies on a case from the Fifth Circuit, United States v. Ortiz-Loya, 777 F.2d 973 (5th Cir. 1985). Ortiz-Loya and a companion had loaded guns and ammunition into the trunk of his car and driven to the U.S.-Mexican border. Customs officials, having been informed that Ortiz-Loya would be coming, set up a roadblock. A customs agent spotted the approaching car, and when the agent made eye contact with him, Ortiz-Loya put the car into reverse and began backing up. On appeal from his conviction for attempt to export arms without a license, he claimed that he had not irrevocably committed himself to crossing the border and thus could not be guilty of attempt. The court, noting that irrevocable commitment in the sense of having passed the point of "no return" is not required, found the evidence sufficient to affirm the conviction. Id. at 980. Ortiz-Loya had taken the requisite substantial step. He went beyond preparation. But for the roadblock ahead, he would have crossed the border with the guns in his trunk. Jerez and Panameno, on the other hand, like the Buffington, Candoli, and Still defendants, did not proceed past the preparatory stages. We hold that the evidence is insufficient to support a finding that Jerez and Panameno took the requisite substantial step. We affirm the district court's judgments of acquittal on the attempt charges.

We now turn to the conspiracy convictions. To convict for the crime of conspiracy, the jury had to find three elements: (1) an agreement to accomplish an illegal objective, (2) one or more overt acts taken in furtherance of that illegal objective, and (3) the requisite intent to commit the underlying substantive offense. United States v. Ray, 920 F.2d 562, 566 (9th Cir. 1990), cert. denied, 111 S. Ct. 1084 (1991).

An agreement to accomplish an illegal objective need not be explicit; the trier of fact can infer its existence from the facts and circumstances of the case. United States v. Castro, 887 F.2d 988, 994 (9th Cir. 1989). We conclude that there was sufficient evidence from which the jury could infer that Jerez and Panameno agreed to purchase guns to take with them to El Salvador without securing export licenses. Panameno contends that his request to Jerez that Jerez buy a gun or two for him was casual, a mere suggestion. However, the jury could have inferred much more from the evidence: the pilots went to the South Bay Armory together to pick up the guns; Panameno paid Jerez for the guns; he listened to the colloquy at the store concerning the export license requirements; and he put two of the guns in his suitcase, which he took to the airport and initially intended to take aboard the flight to El Salvador.

The second element, the overt act, "need only be a concrete step toward carrying out the agreement, not one that actually accomplishes the goal of the conspiracy." United States v. Sarault, 840 F.2d 1479, 1487 (9th Cir. 1988). Indeed, the overt act need not even be criminal; it "may be a perfectly innocent act standing by itself." Chavez v. United States, 275 F.2d 813, 817 (9th Cir. 1960); see also United States v. Andreen, 628 F.2d 1236, 1248 (9th Cir. 1980). Conduct that does not satisfy the substantial step element of attempt may nevertheless constitute an overt act. See United States v. Howard, 918 F.2d 1529, 1533 (11th Cir. 1990); see also United States v. Arbelaez, 812 F.2d 530, 534 (9th Cir. 1987) (attempt requires "overt act which is a substantial step towards commission of the crime").

In the present case, it is undisputed that the defendants purchased the guns, packed them in their baggage, and transported them to the airport. Although these actions fall short of the "substantial step" necessary to the attempt charge, they do represent concrete steps taken in furtherance of the goal of exporting the guns. A rational jury certainly could find that these actions constituted overt acts.⁵ 

Our discussion of the defendants' intent in Section A above also applies to the third element of conspiracy: a reasonable jury could find from the evidence in this case that the defendants had the necessary specific intent, i.e., that they intended to export the arms without export licenses, knowing that it would be illegal to do so without the licenses. In sum, the evidence is legally sufficient to support the jury's guilty verdicts on the conspiracy charges against Jerez and Panameno. We must reverse the district court's judgments of acquittal on those charges.

The government has requested that we remand the case to a different judge for sentencing. Remand to a different judge is reserved for "unusual circumstances". United States v. Arnett, 628 F.2d 1162, 1165 (9th Cir. 1979). Three factors govern the determination of such unusual circumstances:

(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.

Id. (quoting United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977) (en banc)). Nothing in the record suggests that Judge Gadbois would have difficulty putting his prior views out of his mind when, on remand, he reinstates the guilty verdicts and sentences the defendants on the conspiracy convictions. Remand to the same judge will create no appearance of unfairness. Judge Gadbois showed no personal bias toward the government, and there is no reason to question his ability to impose fair and appropriate sentences under the Sentencing Guidelines. It would be unnecessarily wasteful and inefficient to remand to another judge. We therefore decline to do so.

CONCLUSION

We AFFIRM in part, REVERSE in part, and REMAND for the district court to reinstate the guilty verdicts on the conspiracy charges and to impose sentences.