Despite his partner’s acquittal of several of the same charges, a would-be bank robber who was caught before he could execute his plan still stands convicted of conspiracy and gun crimes, a federal appeals court has ruled.
On Friday, the U.S. Court of Appeals for the Third Circuit found that there was sufficient evidence to support defendant James Garner’s conviction on charges of conspiracy to commit bank robbery, attempted bank robbery, possession of a firearm in furtherance of a crime of violence, and aiding and abetting.
Garner’s attorney, Kenneth C. Edelin, did not respond to a request for comment.
While Garner, also known as Abd al-Rahman, was convicted on every count, his partner, Reuben Marshall, was exonerated. Marshall, however, did not face an attempted robbery charge.
Garner argued on appeal that the evidence at trial was insufficient to establish either conspiracy or an attempt to commit armed bank robbery, and that the firearm charge would be negated as a result, according to Judge Thomas Ambro’s opinion.
Garner’s primary argument was that the witness who testified against him was not credible; he also offered an alternate interpretation of the evidence against him at trial. However, the Third Circuit was not convinced.
Ambro said the evidence must be viewed in the light most favorable to the prosecution, and recounted the events leading up to Garner’s arrest:
“On February 6, 2015, Garner approached a man called Saber Saber after prayers concluded at their mosque with a ‘business opportunity’” to be his getaway driver for a robbery of Apex Bank. Garner went back inside the mosque to give Saber time to consider the offer. The latter immediately went to his car and called FBI Special Agent Joshua Reed, for whom he acted as an informant. The call went to voicemail, so Saber placed his phone in the cupholder, hoping to capture his conversation with Garner on Agent Reed’s voicemail.”
Ambro said that Garner returned to finish the conversation in Saber’s car. Later that day, Saber met with Reed to discuss his participation in the investigation. On a recorded call, Saber then talked to Garner about the plans for the robbery.
“Saber and Garner had several more recorded phone calls between February 10 and 12 outlining the robbery. On the morning of February 12—the day before the planned robbery—Saber arrived to pick Garner up in his car,” Ambro said. “Once Garner was inside the car, the FBI approached and arrested Garner and staged an arrest of Saber. The FBI found on Garner’s person 17 small packets of crack cocaine, and in Saber’s car a backpack not present before Garner entered. The backpack contained ski masks, a loaded gun, gloves, two-way radios, and ammunition.”
For the prosecution to prevail on a conspiracy charge, Ambro said, it must demonstrate a “unity of purpose” between conspirators. Garner argued that there was no unity of purpose because he was just “conning” Saber about the robbery. He also claimed the decision of which bank to rob was not finalized prior to his arrest, and therefore, no conspiracy could exist.
“But his discussions with Marshall, as well as with Saber, about that robbery all centered on Apex Bank,” Ambro said. “Garner instructed Saber to surveil Apex, and, when Saber reported back, the three men discussed in detail their plan to rob it. This was enough to support the conspiracy charge.”
To convict on attempted robbery, the government had to show that had intent to rob the bank and took substantial steps toward accomplishing that goal.
“Here Garner engaged in numerous, and substantial, steps toward robbing Apex Bank, including sending Saber to surveil the location and gathering tools for the robbery. (Garner disputes the credibility of the testimony suggesting that he provided the bag of tools seized during his arrest, but the jury was not required to agree.) Sufficient evidence thus backed the attempt charge,” Ambro said.
With the other convictions upheld, Ambro said the gun charge stood as well.
“The government is pleased with the court’s decision affirming the conviction,” the U.S. Attorney’s Office for the Eastern District of Pennsylvania said.