Filed: Mar. 13, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4882 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. BERNALDINO MUNOZ-MENDEZ, a/k/a Fernando, Defendant – Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:05-cr-00408-RJC) Submitted: February 2, 2009 Decided: March 13, 2009 Before KING, GREGORY, and DUNCAN, Circuit Judges. Affirmed and remanded by unpublished
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4882 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. BERNALDINO MUNOZ-MENDEZ, a/k/a Fernando, Defendant – Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:05-cr-00408-RJC) Submitted: February 2, 2009 Decided: March 13, 2009 Before KING, GREGORY, and DUNCAN, Circuit Judges. Affirmed and remanded by unpublished p..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4882
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BERNALDINO MUNOZ-MENDEZ, a/k/a Fernando,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:05-cr-00408-RJC)
Submitted: February 2, 2009 Decided: March 13, 2009
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Affirmed and remanded by unpublished per curiam opinion.
Reita P. Pendry, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte,
North Carolina, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bernaldino Munoz-Mendez appeals his conviction after a
jury trial of attempted bank robbery, in violation of 18 U.S.C.
§ 2113(a) (2006); possessing a firearm in and affecting
interstate commerce, in violation of 18 U.S.C. § 922(g)(5)
(2006); possessing a firearm during and in relation to a crime
of violence, in violation of 18 U.S.C. § 924(c) (2006);
attempting to damage or destroy a building used in and affecting
interstate commerce, in violation of 18 U.S.C. § 844(i) (2006);
and making a destructive device, in violation of 26 U.S.C.
§§ 5822, 5861(f) and 5871 (2006).
On appeal, Munoz-Mendez argues that the evidence was
insufficient to convict him of the two attempt offenses, and
therefore, the district court erred in denying his Fed. R. Crim.
P. 29 motion for judgment of acquittal on those two counts.
Specifically, Munoz-Mendez claims the evidence showed nothing
more than mere preparation and did not constitute a substantial
step toward the completion of the offenses. Also, because the
evidence was insufficient to convict him of attempted bank
robbery, Munoz-Mendez argues that the predicate offense for the
§ 924(c) offense is missing, and therefore, the district court
erred in denying his Rule 29 motion on that count. Munoz-
Mendez’s claims are without merit.
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This court reviews a district court’s decision to deny
a Rule 29 motion de novo. United States v. Midgett, 488 F.3d
288, 297 (4th Cir. 2007). Where, as here, the motion is based
on a claim of insufficient evidence, “the verdict of a jury must
be sustained if there is substantial evidence, taking the view
most favorable to the Government, to support it.” Glasser v.
United States,
315 U.S. 60, 80 (1942);
Midgett, 488 F.3d at 297.
“[S]ubstantial evidence is evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.”
United States v. Delfino,
510 F.3d 468, 471 (4th Cir. 2007)
(quoting United States v. Burgos,
94 F.3d 849, 862 (4th Cir.
1996) (en banc)). This court “can reverse a conviction on
insufficiency grounds only when the prosecution’s failure is
clear.” United States v. Moye,
454 F.3d 390, 394 (4th Cir.
2006)(en banc).
“An attempt to commit a crime, which is recognized as
a crime distinct from the crime intended by the attempt,
punishes conduct that puts in motion events that would, from the
defendant’s point of view, result in the commission of a crime
but for some intervening circumstance.” United States v. Pratt,
351 F.3d 131, 135 (4th Cir. 2003). In order to prove an
attempt, the Government must establish that:
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(1) the defendant had the requisite intent to commit a
crime; (2) the defendant undertook a direct act in a
course of conduct planned to culminate in his
commission of the crime; (3) the act was substantial,
in that it was strongly corroborative of the
defendant’s criminal purpose; and (4) the act fell
short of the commission of the intended crime due to
intervening circumstances.
Id.
Mere preparation is insufficient to establish an
attempt. United States v. Sutton,
961 F.2d 476, 478 (4th Cir.
1992). However, the defendant need not commit the last act
necessary before the actual commission of the substantive crime
to be guilty of an attempt.
Id. Whether a defendant has
engaged in a substantial act beyond mere preparation is a
factual question.
Pratt, 351 F.3d at 136. Facts that strongly
corroborate a defendant’s criminal purpose and may constitute a
substantial step toward commission of the substantive crime
include: (1) lying in wait, searching for, or following the
contemplated victim; (2) reconnoitering the place contemplated
for the commission of the crime; (3) possession of materials to
be employed in the commission of a crime; and (4) possession or
fabrication of materials to be used in the commission of the
crime, at or near the place contemplated for its commission.
Pratt, 351 F.3d at 135.
The evidence presented at trial, viewed in the light
most favorable to the Government, overwhelmingly establishes
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that Munoz-Mendez was guilty of both attempt offenses. Munoz-
Mendez observed the targeted Bank of America for approximately
one year while working construction jobs near the bank. Munoz-
Mendez took note of the number of guards, cameras, and
employees. Also, in the days leading up to the planned robbery,
Munoz-Mendez reconnoitered the Bank of America multiple times.
Munoz-Mendez planned all the major details of the robbery,
including how the money would be split among the participants,
the equipment needed, and the use of a Molotov cocktail as a
diversion. Munoz-Mendez assigned responsibilities for the
robbery to a confidential source and to an undercover agent.
Munoz-Mendez drew a schematic of the bank and planned what
actions each member would take during the robbery and escape.
Munoz-Mendez attempted to recruit other participants in the
robbery. Also, Munoz-Mendez repeatedly affirmed his intent to
commit the robbery. Finally, Munoz-Mendez detailed the items
needed to make the Molotov cocktails, and then assembled those
materials into two bombs the day before the planned robbery. We
have reviewed the record and determine that this evidence,
viewed in the light most favorable to the Government,
establishes Munoz-Mendez was guilty of both attempt offenses.
Therefore, the district court did not err in denying Munoz-
Mendez’s motion for acquittal.
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Accordingly, because the evidence was sufficient to
convict him of attempted bank robbery, the predicate offense for
the § 924(c) conviction existed, and the district court did not
err in denying Munoz-Mendez’s motion on the § 924(c) count. We
note, however, that the written judgment contains a clerical
error in that, on the first page, the judgment indicates that
Munoz-Mendez pleaded guilty to counts 1-5, rather than that he
was found guilty after a plea of not guilty. Therefore, we
affirm the judgment of the district court but remand for
correction of the written judgment. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and oral argument
would not aid the decisional process.
AFFIRMED AND REMANDED
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