                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 10-1558
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                                  ANTONIO AVILA,
                                      Appellant
                                   _____________

                     Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                         (D.C. Criminal No. 1-06-cr-00199-010)
                    District Judge: Honorable Christopher C. Conner
                                     _____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   July 14, 2011

                Before: RENDELL, SMITH and ROTH, Circuit Judges.

                             (Opinion Filed: July 28, 2011)
                                   _____________

                              OPINION OF THE COURT
                                  _____________

RENDELL, Circuit Judge.

       Antonio Avila was convicted for various drug charges, criminal forfeitures, and

offenses relating to attempted escape from custody. Avila only challenges his

convictions which relate to his attempt to escape custody, claiming that the evidence was

insufficient. He also claims that the government offered insufficient evidence to
overcome the defense of entrapment. Our standard of review for sufficiency of the

evidence challenges is plenary, but we will only reverse a jury verdict when the record

contains no evidence from which a reasonable jury could find guilt beyond a reasonable

doubt. See United States v. Mussare, 405 F.3d 161, 166 (3d Cir. 2005). Avila cannot

meet this standard. Accordingly, we will affirm.

       Avila, along with Fernando Beltran, was convicted of attempted escape from

custody and related offenses. The offense conduct originated when Beltran was moved to

a cell with Amauris Sanchez. Shortly thereafter, Beltran approached Sanchez about

taking part in an escape. Following a number of conversations, Sanchez approached

authorities with the intent to cooperate. Sanchez, and Karen Brown, a prison counselor,

took on the role of confidential informant for the authorities. At this point, Beltran also

approached Avila about joining the operation, and Avila agreed. After a number of

discussions between Avila, Beltran, Sanchez, and Brown, an escape plan was crafted

based on a medical transport. The plan resulted in bribes to fictitious guards for a

smuggled cell phone and their cooperation in the escape. Following the seizure of the

second bribe – $40,000 to be used as the bribe to effectuate the actual escape – Avila and

Beltran were charged.

       Avila’s first challenge is that the government failed to offer enough evidence to

sustain his conviction for attempted escape from custody. To prove attempted escape, the

government must show intent, as well as corroborating evidence which amounts to a

substantial step toward commission of the crime. See United States v. Cicco, 10 F.3d



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980, 984 (3d Cir. 1993). The substantial step may be shown through the conduct of a co-

conspirator. See Pinkerton v. United States, 328 U.S. 640, 647-48 (1946).

       Avila claims that the government only offered the testimony of Sanchez, Beltran’s

cellmate, and in light of the inconsistencies and attacks on Sanchez’s credibility, this

evidence was insufficient. While the government did offer only Sanchez’s testimony,

Avila fails to note in his brief that the government also offered numerous recorded phone

calls placed by Avila. The calls, in a number of ways, corroborate the fact that Avila was

part of the group intent on escaping from prison. One call was to his niece to have a

truck registered in a different name to avoid seizure, presumably to be available, either

for sale or use during the escape. Also, there were a number of calls in which Avila

offered reassurances that everything was going as planned and urged that his co-

conspirators could be trusted. Finally, one of his co-conspirators took the substantial step

to pay the sums of $3,000.00 and $40,000.00 to fictitious guards for the use of a cell

phone and for general bribes to facilitate the escape. A reasonable jury could find Avila

guilty beyond a reasonable doubt of this charge.

       As for Avila’s second claim, that the government failed to show that Avila used

interstate facilities to aid in bribery, it must also fail. To prove the crime, the government

must show (1) the use of an interstate facility; (2) with the intent to promote an unlawful

activity; and (3) a subsequent overt act in furtherance of the unlawful activity. See

United States v. Zolicoffer, 869 F.2d 771, 774 (3d Cir. 1989). It is sufficient for the

government to show that a person believed he was conferring a benefit, and the

government need not prove there were actual prison guards willing to accept the bribes.

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Commonwealth v. Schauffler, 580 A.2d 314, 317-18 (Pa. Superior Ct. 1990). Avila’s

bald claim that the government failed to offer sufficient evidence lacks any further

explanation or support. As the government produced evidence that Avila, and co-

conspirator Beltran, arranged for the transfer of money via U.S. mail for the purpose of

furthering their plan, and in fact, the money was sent, it is clear that the guilty verdict was

appropriate when viewed under the applicable standard of review.

       Finally, Avila claims that insufficient evidence was offered to overcome the

defense of entrapment. To prove the defense of entrapment, the defendant must show (1)

that the government induced the defendant to commit the crime, and (2) that the

defendant lacked the predisposition. United States v. El-Gawli, 837 F.2d 142, 145 (3d

Cir. 1988). Avila’s argument assumes that he sustained his burden as to these elements,

but he failed to show a lack of predisposition. Avila claims that he was not predisposed

to escape and bribery, and, therefore, he was entrapped. He points to his lack of criminal

history and Sanchez’s statement at trial that he “took some convincing.” The government

urges that these statements were out of context. At trial, the government produced

testimony by Sanchez stating that Beltran approached him numerous times about the plan

which Avila and Beltran were already discussing. These discussions occurred prior to

Sanchez’s becoming a confidential informant and the government’s involving the prison

counselor. Additionally, there are at least two corroborating statements made by Avila

before government involvement, in recorded phone calls to women about seeing them

“one of these days” and “I’ll call you when I am out.” Also, Avila stated in another

recorded call that he would call the woman on the line “before, um, we are gonna go.”

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Again, as we view the evidence in a light most favorable to the government, there was

sufficient evidence in the record for a reasonable jury to conclude that Avila was

predisposed to escape, dooming his entrapment defense.

       Accordingly, we will affirm.




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