United States v. Harper

33 F.3d 1143 (9th Cir. 1994)

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Nature of the Case

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Facts

Police officers in Buena Park, California found Ds and one other codefendant, Carlos Munoz, sitting in a rented car in the parking lot of the Home Savings Bank shortly after 10:00 p.m. The officers searched Ds, the vehicle and the surrounding area. They found two loaded handguns - a .44 caliber Charter Arms Bulldog and a .357 magnum Smith and Wesson - under a bush located five or six feet from the car, where a witness had earlier seen one of the car's occupants bending over. In the car, the police discovered a roll of duct tape in a plastic bag, a stun gun, and a pair of latex surgical gloves. They found another pair of latex surgical gloves in the pocket of Munoz's sweatpants. They also found six rounds of .357 magnum ammunition in the pocket of his shorts, which he wore under his sweatpants. Some of this ammunition came from either the same box or the same lot as the ammunition in the loaded .357 magnum handgun. Ds had a total of approximately $182 in cash among them, and Sharrieff (D) was carrying an automated teller machine (ATM) card which bore the name of Kimberly Ellis. Harper (D) had used that ATM card shortly before 9:00 p.m. that evening in an ATM at the Buena Park branch of the Bank of America, which was located adjacent to the Home Savings parking lot in which the defendants were parked. The ATM's camera photographed Harper. Harper had requested a twenty-dollar withdrawal from the ATM, but had not removed the cash from the cash drawer. This omission had created what is known as a 'bill trap.' When a bill trap occurs, the ATM shuts itself down and the ATM supply company that monitors the ATM contacts its ATM service technicians to come and repair the ATM. Harper (D) knew this as he had previously worked for both Bank of America and one of its ATM service companies. Ds were indicted for conspiracy to rob a federally insured bank, attempted bank robbery, and carrying a firearm during and in relation to a crime of violence. P claimed that Ds had intentionally caused the bill trap to summon the ATM service technicians who would have to open the ATM vault to clear the trap. Ds planned to rob the technicians of the money in the ATM. The three defendants were convicted of all charges. Harper (D) and Sharrieff (D) appealed claiming insufficient evidence to convict of an attempt or even a conspiracy.