                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                 No. 12-10570
                Plaintiff-Appellee,
                                            D.C. No.
                 v.                      3:11-cr-08190-
                                             JAT-1
CORBERT GOLDTOOTH,
            Defendant-Appellant.



UNITED STATES OF AMERICA,                 No. 12-10571
                Plaintiff-Appellee,
                                            D.C. No.
                 v.                      3:11-cr-08190-
                                             JAT-3
MYRON TSOSIE,
             Defendant-Appellant.           OPINION


      Appeal from the United States District Court
               for the District of Arizona
   James A. Teilborg, Senior District Judge, Presiding

                Argued and Submitted
      March 10, 2014—San Francisco, California

                  Filed June 12, 2014
2               UNITED STATES V. GOLDTOOTH

         Before: John T. Noonan, Sidney R. Thomas,
           and Marsha S. Berzon, Circuit Judges.

                    Opinion by Judge Noonan


                           SUMMARY*


                          Criminal Law

    The panel reversed two defendants’ convictions on two
counts of aiding and abetting robbery on the Navajo Nation,
in violation of 18 U.S.C. §§ 2111, 1153, and 2, and remanded
for entry of judgment of acquittal.

    The panel held that the defendants’ convictions’ on
Count 1 cannot survive under the government’s aiding and
abetting theory because no rational juror could have found
that the defendants had the requisite advance knowledge that
the robbery was to occur, where the government presented no
evidence that the taking of Kallen Crawford’s tobacco was
anything but a spontaneous act by the snatcher.

    Regarding Count 2, the panel held that attempted robbery
under § 2111 requires specific intent – i.e., that the
defendants intended to take the things of value alleged in the
indictment. The panel held that a rational juror could not
have concluded beyond a reasonable doubt that the
defendants had intended to rob Sheldon Davis of a wallet they
never asked for, never looked for, and never knew existed;

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              UNITED STATES V. GOLDTOOTH                  3

and that a rational juror could not have found that the
defendants intended to rob Davis’s nonexistent money. As
the government failed to prove that the defendants possessed
the mental state required for the underlying crime of
attempted robbery, the panel concluded that the government
necessarily failed to prove that either man had aided and
abetted any such attempt.


                       COUNSEL

Tyrone Mitchell, Tyrone Mitchell, P.C., Phoenix, Arizona,
for Defendant-Appellant Corbert Goldtooth.

James S. Park, Park Law Office, PLC, Phoenix, Arizona, for
Defendant-Appellant Myron Tsosie.

Rachel C. Hernandez (argued) and Tracy Van Buskirk,
Assistant United States Attorneys, Phoenix, Arizona, for
Plaintiff-Appellee.


                        OPINION

NOONAN, Circuit Judge:

    Corbert Goldtooth and Myron Tsosie (together,
“Appellants”) appeal their convictions on two counts of
aiding and abetting robbery on the Navajo Nation. Because
no rational juror could have convicted either man of either
count, we reverse.
4              UNITED STATES V. GOLDTOOTH

                                I

                                A

    The facts are not in dispute. In the early morning hours
of July 31, 2011, Kallen Crawford and Sheldon Davis, both
in their late teens, were rolling tobacco and smoking
cigarettes outside a gas station in Fort Defiance, Arizona, a
small community within the Navajo Nation.                 At
approximately two a.m., a four-door sedan driven by a
woman arrived at the gas station. Three men, two of whom
the police later identified as Appellants, exited the vehicle
and walked over to Crawford and Davis, who were seated
next to each other on the curb. As the strangers approached,
Crawford and Davis noticed that each man was trying to
conceal a weapon—one carried a baseball bat, another held
a 12-inch knife, and the third had a pocket knife. The men
surrounded Crawford and Davis: the two men with knives
stood in front of them while the man with the bat stood
behind.

    Crawford, trying to defuse the situation, offered to roll the
men some Tops brand tobacco, which he had purchased at the
gas station for about three dollars. One of the men then asked
Crawford and Davis if they claimed membership in any gang.
They said no. After identifying themselves as members of a
local gang, Appellants asked whether the teens had anything
on them or in their pockets. Again, they said no. They were
never asked whether they had money or a wallet.

    The man with the pocket knife then quickly patted down
Davis’s front side, while the man with the baseball bat patted
down Crawford’s. Nothing was found or taken. Davis
testified later that, in reality, he had been carrying a wallet in
              UNITED STATES V. GOLDTOOTH                     5

a pocket of his “skinny jeans.” He also testified that he
typically kept personal property in his back pockets. Davis,
however, had no money in his wallet or anywhere else on
him. As for Crawford, he testified that he had had a wallet in
his back pocket and a $175 smartphone in his front pocket.
Crawford and Davis remained seated during the pat downs;
they were never asked to stand.

     As Crawford continued to roll the tobacco into cigarettes,
the man to his rear “nudged” him in the head with the
baseball bat to hurry him up. The man with the pocket knife
took Crawford’s hat and, before returning it, smacked Davis
on the back of the head and urged his compatriots to get
going. Crawford eventually handed the three cigarettes he
had rolled to the man with the bat, who, suddenly and without
permission, snatched the remaining tobacco from Crawford’s
lap.

    The three men then walked back to the car they had
arrived in and were driven away. The encounter lasted five
or ten minutes. No verbal threats were ever made; Crawford
and Davis were not physically harmed.

    Some twenty to thirty minutes later, a police officer
stopped the vehicle carrying the three men. The officer had
received a call indicating that the sedan had been involved in
a gas station robbery. Before the car came to rest, the officer
noticed something shiny being ejected from the passenger’s
side of the vehicle. A backup officer arrived soon thereafter,
and he discovered a long silver knife lying in the dirt by the
car’s rear. Appellants were arrested on the scene and
transported by a third officer to a nearby jail. During
booking, the police found a black pocket knife on Tsosie’s
person. The third man in the vehicle, Goldtooth’s teenage
6             UNITED STATES V. GOLDTOOTH

son, was taken to the hospital to treat a badly bleeding hand.
Before he left, the police removed a sheath from the young
man’s belt matching the long knife found in the dirt. The
female driver consented to a vehicle search, which turned up
a weighted, black baseball bat. No tobacco was ever found.

    On August 13, 2011, Special Agent Matthew Shelley, a
federal investigator, interviewed Goldtooth about the events
of July 31. During the interview, Goldtooth admitted to
asking Crawford and Davis for cigarettes, and that he may
have done so “in a threatening way.” Goldtooth also
admitted to “flying” his gang colors that night and to
throwing the knife out of the vehicle. He never mentioned
money or a wallet.

    On September 27, 2011, Appellants were each charged
with two counts of aiding and abetting robbery on an Indian
reservation, in violation of 18 U.S.C. §§ 2111, 1153, and 2.
Count 1 alleged that Appellants had robbed or attempted to
rob Crawford of “a package of Tops brand tobacco.” Count
2 alleged that Appellants had robbed or attempted to rob
Davis of his “money and wallet.” Appellants pleaded not
guilty to both counts.

                              B

    Beginning April 11, 2012, Appellants were tried jointly
by a jury of their peers. In its case in chief, the government
called as witnesses Davis, Crawford, the female driver, and
various law enforcement personnel involved with the case.

   At the close of evidence, Appellants orally moved for
judgment of acquittal under Rule 29 of the Federal Rules of
Criminal Procedure. In denying the motion, the district court
               UNITED STATES V. GOLDTOOTH                      7

stated that it did not want to “minimize the appeal” of
Appellants’ arguments with respect to count 2 of the
indictment—the alleged robbery or attempted robbery of
Davis’s money and wallet—so it invited “further briefing” on
the matter should they be convicted on that count.

    On April 20, 2012, after roughly five hours of
deliberation, the jury found Appellants guilty on both counts.

    Four months later, on August 31, 2012, Goldtooth filed a
written motion again requesting that the district court issue a
judgment of acquittal, or, in the alternative, grant a new trial.
Tsosie joined the motion. The district court denied the Rule
29 motion with respect to count 1 on October 1, 2012, but
withheld its ruling as to count 2. Concerned that count 2
alleged that Appellants had robbed or attempted to rob Davis
of his “money and wallet” even though “there was no money”
on him, the lower court asked for “more briefing.”

    On October 31, 2012, the district court denied Appellants’
Rule 29 motion in its entirety, noting only that it was
“satisfied” with the government’s supplemental briefing.
That same day, the district court sentenced Goldtooth to 115
months in prison—the high end of his Sentencing Guidelines
range—followed by three years of supervised release. Tsosie
was sentenced to 78 months in prison—the low end of his
Guidelines range—and three years of supervised release.

    This appeal followed.
8                UNITED STATES V. GOLDTOOTH

                                   II

   Appellants challenge the sufficiency of the evidence
against them.1 Our review is de novo. See United States v.
LaBuff, 658 F.3d 873, 876 (9th Cir. 2011). We reverse.2

                                   A

    Our inquiry proceeds in two parts. See United States v.
Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc).
First, we “consider the evidence presented at trial in the light
most favorable to the prosecution.” Id. at 1164. In so doing,
we presume that the jury resolved any evidentiary conflicts in
the government’s favor. See id. Second, we determine
whether the evidence, so viewed, is sufficient “to allow any
rational trier of fact [to find] the essential elements of the
crime beyond a reasonable doubt.” Id. (alteration in original)
(internal quotation marks omitted). Step two, we have
explained, protects against those “rare occasions” when a jury
convicts someone even though “no rational trier of fact”
could have found guilt beyond a reasonable doubt. Id. That

    1
    Before the district court, both men challenged the sufficiency of the
evidence against them as to both counts. Tsosie’s decision not to
challenge count 1 on appeal does not foreclose our reversing his
conviction on that count. See United States v. Baker, 999 F.2d 412,
416–17 (9th Cir. 1993) (reversing codefendant’s conviction even though
he “did not raise the issue on appeal”); United States v. Ullah, 976 F.2d
509, 514 (9th Cir. 1992) (“[I]t is ‘manifestly unjust’ to reverse the
conviction of one co-defendant but to uphold the conviction of another
co-defendant when the same error affected both defendants.”). Nor does
our doing so prejudice the government. See United States v. Brooks,
610 F.3d 1186, 1202 (9th Cir. 2010).
  2
    Because we reverse for insufficient evidence, we do not reach
Appellants’ other claims of error.
              UNITED STATES V. GOLDTOOTH                    9

said, we have an “obligation” to identify such rare occasions,
including where “the evidence construed in favor of the
government may be insufficient to establish every element of
the crime” or “where mere speculation, rather than reasonable
inference, supports the government’s case.” Id. at 1167; see
also United States v. Bennett, 621 F.3d 1131, 1139 (9th Cir.
2010).

    The jury here convicted Appellants on two counts of
aiding and abetting robbery on an Indian reservation, in
violation of 18 U.S.C. §§ 2111, 1153, and 2. To convict
either man on count 1, the government had to prove four
elements beyond a reasonable doubt: (1) that the defendant
took or attempted to take a package of Tops brand tobacco
from Crawford; (2) that the defendant used force, violence, or
intimidation in doing so; (3) that the alleged robbery took
place on the Navajo Nation in the District of Arizona; and
(4) that the defendant is an Indian. To convict either man on
count 2, the government had to prove the same four elements
beyond a reasonable doubt, except that the first element
instead required proof that the defendant took or attempted to
take money or a wallet from Davis.

    The government could also satisfy its burden by proving
that Appellants had aided and abetted a robbery. See United
States v. Garcia, 400 F.3d 816, 820 (9th Cir. 2005)
(“[A]iding and abetting is embedded in every federal
indictment for a substantive crime.”). To convict either man
under such a theory, the government had to prove beyond a
reasonable doubt: (1) that a robbery was committed by
someone; (2) that the defendant knowingly and intentionally
aided, counseled, commanded, induced, or procured that
person to commit each element of robbery; and (3) that the
defendant acted before the crime was completed. See Manual
10             UNITED STATES V. GOLDTOOTH

of Model Criminal Jury Instructions for the District Courts of
the Ninth Circuit § 5.1 (2010). The government was not
required to prove which person had actually carried out the
robbery and which person or persons had aided and abetted.
See United States v. Vaandering, 50 F.3d 696, 702 (9th Cir.
1995).

                               B

   As to count 1, the government emphasized an aiding and
abetting theory because it could not prove which of the men
had actually grabbed the tobacco from Crawford’s lap.

    To aid and abet a robbery, however, Appellants must have
had foreknowledge that the robbery was to occur. In
Rosemond v. United States, 134 S. Ct. 1240 (2014), the
Supreme Court examined 18 U.S.C. § 2, the federal aiding
and abetting statute under which Appellants were convicted.
There, the Court explained that “an aiding and abetting
conviction requires . . . a state of mind extending to the entire
crime.” Id. at 1248. With respect to an armed drug sale
under 18 U.S.C. § 924(c), the Court held that an aiding and
abetting conviction requires the government to prove the
defendant had “advance knowledge” that a coconspirator
would use or carry a gun as part of the crime’s commission.
Id. at 1243. “[A]dvance knowledge,” continued the Court,
“means knowledge at a time the accomplice can do
something with it—most notably, opt to walk away.” Id. at
1249–50.

   No rational juror could have found that Appellants had
such advance knowledge. The evidence, viewed in the light
most favorable to the government, showed only that
Appellants exited the car and, weapons drawn, approached
              UNITED STATES V. GOLDTOOTH                   11

Crawford and Davis; that Crawford, feeling intimidated,
offered to roll Appellants cigarettes; that Goldtooth was
interested in getting cigarettes and may have asked for them
in a threatening way; and that immediately after Crawford
handed the cigarettes to the man with the baseball bat, that
man reached down and grabbed the remaining tobacco from
Crawford’s lap.

    None of this evidence indicates foreknowledge. There
was no evidence Appellants had drawn up plans or had
discussions prior to the taking; no evidence Crawford or
Davis thought the tobacco would be snatched; and no
evidence the two non-snatchers had any idea the taking would
occur, let alone that they had aided or encouraged it.

    Nor could a rational juror have inferred foreknowledge or
intent from the circumstances. True, a jury may infer
advance knowledge “if a defendant continues to participate in
a crime after” it has been committed. Rosemond, 134 S. Ct.
at 1250 n.9. But there was no evidence here that the two non-
snatchers in any way participated in the snatch. Mere
presence at the scene does not an aider and abettor make. See
United States v. Andrews, 75 F.3d 552, 555 (9th Cir. 1996).
Even if Appellants had become aware of the taking once it
happened, that alone cannot satisfy the government’s burden.
See United States v. Bancalari, 110 F.3d 1425, 1430 (9th Cir.
1997) (explaining that “mere presence at the scene of the
crime and knowledge that the crime is being committed is not
enough” to sustain an aiding and abetting conviction).

    What’s more, neither Appellant would have had time to
participate after learning of the taking. Crawford and Davis,
the government’s own witnesses, each testified that the
culprits left the scene immediately after the snatch. Crawford
12               UNITED STATES V. GOLDTOOTH

stated, for example: “It was like a matter of seconds after I
gave the cigarettes back to them was when they left, and the
guy behind me took my package and they left.” In other
words, Appellants could not have participated because there
was no time to do so.

    At bottom, the government presented no evidence that the
taking of Crawford’s tobacco was anything but a spontaneous
act by the snatcher. The culprit, says the government, just
“grabbed” or “snatched” the tobacco from behind Crawford.
Such an act of spontaneity could not have been known in
advance or intended by another. See 16 The Oxford English
Dictionary 307 (2d ed. 1989) (defining “spontaneous”
actions). Put simply, one cannot know in advance what
cannot be known in advance.

   Appellants’ count 1 convictions cannot survive under the
government’s aiding and abetting theory.3

                                   C

    As to count 2, the government acknowledges, as it must,
that Appellants could only have been convicted of attempting
to rob Davis’s money or wallet because nothing was actually
taken from him.




     3
     To the extent the jury may have found either man guilty as the
principal robber, rather than as an aider and abettor, that verdict would
have been equally irrational. Based on the wildly inconsistent
identification evidence produced at trial, no rational juror could have
concluded beyond a reasonable doubt that either Goldtooth or Tsosie was
the snatcher.
              UNITED STATES V. GOLDTOOTH                   13

   It does not appear that our court has expressly decided
whether attempted robbery under 18 U.S.C. § 2111 requires
proof of specific intent. See United States v. Burdeau, 168
F.3d 352, 356 (9th Cir. 1999) (holding that completed
robbery under 18 U.S.C. § 2111 “is a crime of general intent”
without addressing attempted robbery). We now hold that it
does.

    In Burdeau, we looked to our more developed case law
interpreting 18 U.S.C. § 2113(a), the federal bank robbery
statute, because “the wording of § 2111 is nearly identical to
the wording of 18 U.S.C. § 2113(a).” Id. We do the same
here. “[E]ven though bank robbery itself is a general intent
crime,” we have explained, “attempted bank robbery requires
the specific intent to rob a bank within the meaning of
18 U.S.C. § 2113(a).” United States v. Gracidas-Ulibarry,
231 F.3d 1188, 1193 (9th Cir. 2000) (en banc) (citing United
States v. Darby, 857 F.2d 623, 626 (9th Cir. 1988)). Our
reasoning in Darby applies with equal force to the generic
federal robbery statute:

       [I]n order to convict for bank robbery, the
       government must prove that the defendant
       took the property. This act of taking by force,
       violence, or intimidation is sufficient to
       constitute the crime of bank robbery. It is not
       necessary to prove an intent to steal. When
       the charge is one of attempted bank robbery,
       however, the transaction in question is at an
       earlier stage. There has not been a taking of
       the property. We are thus concerned with
       whether attempted bank robbery requires an
       intent to take the property. . . . In order to
       prove an attempt to commit a crime, the
14               UNITED STATES V. GOLDTOOTH

         government must prove an intent to commit
         the acts that constitute the crime. Thus, in
         order to prove attempted bank robbery, it is
         necessary to prove that the defendant intended
         to take the property by force, violence or
         intimidation.

Darby, 857 F.2d at 626.

   So too here. Accordingly, we hold that attempted robbery
under 18 U.S.C. § 2111, like most other attempt crimes,
requires proof of specific intent. See id. (“Attempted bank
robbery requires the specific intent to rob a bank.”); see also
21 Am. Jur. 2d Criminal Law § 155 (2014) (“Attempt is a
specific-intent crime.”).

    The government, then, was required to prove beyond a
reasonable doubt that Appellants intended to take the things
of value alleged in the indictment—viz., Davis’s money or
wallet. If no rational juror could have so found, Appellants’
convictions must fall.

    The government’s case on count 2 rested solely on three
pieces of evidence. First, Davis testified that, as best he could
remember, he was carrying a wallet but no money on the
night of the alleged robbery.4 Second, Davis testified that one

  4
     That Davis had no money on him does not preclude an attempted
robbery conviction, so long as the government could prove beyond a
reasonable doubt that Appellants had intended to take money they thought
Davis had. See United States v. Fleming, 215 F.3d 930, 936 (9th Cir.
2000) (“Factual impossibility is not a defense to an inchoate offense.”);
see also Wayne R. LaFave, Criminal Law 633 (5th ed. 2010) (“All courts
are in agreement that what is usually referred to as ‘factual impossibility’
is no defense to a charge of attempt.”).
              UNITED STATES V. GOLDTOOTH                    15

of the men had asked him and Crawford whether he had
anything on him or in his pockets. And third, Crawford and
Davis testified that two of the men had briefly patted down
their front pockets but found nothing.

    A closer look at this evidence reveals that no rational
juror could have found Appellants guilty of attempted
robbery of money or a wallet beyond a reasonable doubt. It
is true that one of the men asked Davis whether he had
anything in his pockets. But it is just as true that Appellants
never asked Davis if he had money or a wallet on him. There
was also no evidence that Davis gave Appellants any reason
to believe that he was carrying money or a wallet. In fact,
Davis told Appellants (untruthfully) that he had nothing in his
pockets.

    As for the pat downs, Davis testified that he was patted
down by the man with the pocket knife, who stood facing
him. Davis, who was seated, also testified that his pat down
was “quick” and that it went from his “ribs . . . all the way
down to [his] thighs,” including his “front pockets.” Viewed
in the light most favorable to the government, the evidence
was that Davis’s wallet was in a back pocket of his “skinny
jeans,” where he typically carried his personal property, and
that Appellants failed to find anything during the pat down
because the man with the pocket knife did not frisk Davis’s
back pockets.

    Appellants’ actions during the pat downs do not evince an
intent to rob Davis of money or a wallet. Quite the opposite.
Had Appellants wanted to rob Davis, they would have asked
him to stand up so they could search him, including his back
pockets, more easily. Had Appellants wanted to rob Davis,
they would not have conducted “just a quick pat down”; they
16            UNITED STATES V. GOLDTOOTH

would have searched his person thoroughly. Had Appellants
wanted to rob Davis, they would not have patted down his
“ribs,” where men typically do not keep money or a wallet.
Appellants were in total control of the situation. Had they
wanted to find Davis’s wallet, they would have.

    In addition, Crawford, who was seated right next to
Davis, testified that he was patted down from behind by the
man with the baseball bat. Any rational juror would conclude
that the man who patted down Crawford would have had
ready access to the back pockets of either teen, had he so
wanted.

    Perhaps most significantly, Crawford testified that he had
been carrying a wallet in his back pocket and a smartphone,
worth $175, in his front pocket. The evidence in no way
explains how Appellants, had they been looking for
something to rob, could have overlooked this expensive
smartphone in the very pocket they patted down. Indeed,
Appellants seemingly went out of their way not to rob Davis
of any valuables. The only fair inference is that they were
looking for weapons. Finding none, Appellants left the teens’
pockets alone.

    In light of the foregoing, a rational juror could not have
concluded beyond a reasonable doubt that Appellants had
intended to rob Davis of a wallet they never asked for, never
looked for, never found, and never knew existed. Neither
could a rational juror have found that Appellants had intended
to rob Davis’s nonexistent money. For a juror to have
inferred otherwise “would be impermissible speculation.”
Bennett, 621 F.3d at 1139; see also United States v. Dinkane,
17 F.3d 1192, 1198 (9th Cir. 1994) (reversing defendant’s
              UNITED STATES V. GOLDTOOTH                    17

armed robbery conviction where the evidence was
insufficient to establish his intent to aid and abet).

    As the government failed to prove that Goldtooth or
Tsosie possessed the mental state required for the underlying
crime of attempted robbery, it necessarily failed to prove that
either man had aided and abetted any such attempt. See
United States v. Sutcliffe, 505 F.3d 944, 959 (9th Cir. 2007)
(“There is no question that a conviction for aiding and
abetting a crime requires proof that the underlying crime was
committed . . . .”). Without proof of the requisite mens rea,
Appellants’ convictions on count 2 cannot stand.

                            * * *

    We reverse Appellants’ convictions and remand to the
district court for entry of judgment of acquittal on both
counts. Appellants may not be retried. See McDaniel v.
Brown, 558 U.S. 120, 131 (2010) (per curiam) (“Because
reversal for insufficiency of the evidence is equivalent to a
judgment of acquittal, such a reversal bars a retrial.”).

   REVERSED and REMANDED.
