                                  RECOMMENDED FOR FULL-TEXT PUBLICATION
                                       Pursuant to Sixth Circuit Rule 206
                                              File Name: 05a0331a.06

                          UNITED STATES COURT OF APPEALS
                                          FOR THE SIXTH CIRCUIT
                                            _________________


                                                                X
                                           Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                                 -
                                                                 -
                                                                 -
                                                                     No. 04-1626
             v.
                                                                 ,
                                                                  >
 DONYAL WESLEY,                                                  -
                                        Defendant-Appellant. -
                                                                 -
                                                                 -
                                                                N
                                Appeal from the United States District Court
                               for the Eastern District of Michigan at Detroit.
                              No. 03-80833—Robert H. Cleland, District Judge.
                                             Argued: April 26, 2005
                                     Decided and Filed: August 8, 2005
                       Before: GUY, BATCHELDER, and GIBSON, Circuit Judges.*
                                              _________________
                                                   COUNSEL
ARGUED: Jonathan Epstein, FEDERAL PUBLIC DEFENDERS OFFICE, Detroit, Michigan, for
Appellant. Daniel R. Hurley, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for
Appellee. ON BRIEF: Jonathan Epstein, Natasha D. Thompson, FEDERAL PUBLIC DEFENDERS
OFFICE, Detroit, Michigan, for Appellant. Saima S. Mohsin, ASSISTANT UNITED STATES
ATTORNEY, Detroit, Michigan, for Appellee.
        GUY, J., delivered the opinion of the court, in which GIBSON, J., joined. BATCHELDER, J. (
p. 9), delivered a separate dissenting opinion.
                                           _____________________
                                            AMENDED OPINION
                                           _____________________
       RALPH B. GUY, JR., Circuit Judge. Defendant Donyal Wesley appeals his conviction and sentence
on one count of attempted bank robbery in violation of 18 U.S.C. § 2113(a). Defendant argues that the
evidence was factually and legally insufficient to support the conviction and that errors in the admission of
evidence warrant a new trial. Relying on Blakely v. Washington, 124 S. Ct. 2531 (2004), defendant also

    *
    The Honorable John R. Gibson, Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting
by designation.

                                                         1
No. 04-1626             United States v. Wesley                                                        Page 2


contends that the imposition of a career-offender enhancement under U.S.S.G. § 4B1.1 violated the Sixth
Amendment.
       In an initial opinion reversing defendant’s conviction and remanding for new trial, we did not decide
whether there was sufficient evidence to establish that the defendant committed an overt act that constituted
a “substantial step” toward commission of the crime. Defendant argues in his petition for panel rehearing,
and the government concedes, that we must decide the sufficiency of the evidence issue even though we
have found another ground for reversal that would not preclude retrial. United States v. Quinn, 901 F.2d
522, 529 n.5 (6th Cir. 1990).
       Because the issue has been fully briefed, we DENY the petition for rehearing and AMEND our prior
opinion to explicitly find that, when the evidence and reasonable inferences are taken in the light most
favorable to the government, a rational juror could find all of the essential elements were established beyond
a reasonable doubt. Accordingly, after review of the evidence and the applicable law, we REVERSE
defendant’s conviction and REMAND for new trial.
                                                      I.
         The investigation into the attempted robbery of the Stockbridge State Bank, located in Stockbridge,
Michigan, rested on the cooperation of Deborah Reid. Reid, who lived in Stockbridge, had met the
defendant, Donyal Wesley, whom she knew as “T,” several times at her sister Gina Caravino’s house in
Wayne, Michigan. One night in late August 2003, at 2:00 or 2:30 a.m., Wesley went to Reid’s house and
asked her very pointed questions about the bank. He asked if she banked there and about the vault, the
tellers, the security, and the hours of operation. Reid told him she did her banking there; that there were no
security guards; and that there were four tellers, one of whom was an elderly woman. Wesley became
excited and, hitting his head, said: “[O]h my God, this is great.” Wesley told her he would tell a good
friend so they could rob the bank and asked Reid to drive the “getaway” car because she knew the roads in
the area. Wesley said he wanted Reid to take him to see the bank. Although she did not agree to act as the
driver, she told him she would “get back to him.”
        On September 2, 2003, Reid contacted Sgt. Patrick Lindberg of the Wayne Police Department to
whom she had provided information on drug activities in the past. That night, at about 10:20 p.m., Reid
called Wesley using three-way calling. Lindberg and other officers listened to their conversation. Although
the recording device malfunctioned, Wesley was heard to say he wanted to meet with Reid to discuss the
robbery and to go see the bank. Reid agreed to drive Wesley to Stockbridge to see the bank, but told him
it would be too suspicious for him to go in. They planned to go the next morning, but Reid later delayed
the trip at Lindberg’s direction. Lindberg enlisted the help of FBI Special Agent Terry Booth, who had
experience with bank robbery investigations, and Michigan State Police Detective Mike Logan, who had
expertise with surveillance equipment.
         On Thursday, September 4, 2003, Logan installed a wireless camera and microphone in Reid’s car
with the receiver and recorder hidden in the trunk. Followed by police, Reid drove to pick up Wesley at his
residence in Romulus. Reid went into the house for a short time, then Reid drove Wesley and his daughter
to the bank in Stockbridge more than an hour away. Reid testified that Wesley told her during the trip that
they would need three people to go into the bank, one to watch the floor, one to “hit the tellers,” and a third
to “hit the vault.” He explained that they would wear nylons or masks, carry guns covered by bags, and
switch to a second stolen car to elude police after the robbery. Wesley told Reid, “your job, once we jump
in that second car, get us the fuck out.” When Reid asked if he meant to do it soon, Wesley answered
“tomorrow” and asked if that was “soon enough.” Reid answered that it was “[t]oo soon.” Wesley told
Reid that a “guy” told him to “make sure they don’t push the button.” When Reid asked again if he was sure
about “tomorrow,” Wesley replied that he was not sure but that he had been told the best days were
Thursday, Friday or Saturday.
No. 04-1626            United States v. Wesley                                                       Page 3


        When they arrived at the bank, which was under police surveillance, Reid drove around the bank
and stopped directly in front of the north entrance doors for about a minute. Reid testified that they could
see that the vault was open. Photographs offered at trial confirmed that the vault was visible from outside
the doors. Officer Thomas Warren of the Wayne Police Department was close enough to intercept the signal
from the recording device in Reid’s car. Warren overheard Reid saying that there were only two loan
officers, one of whom was a “short, fat little bitch.” Defendant said they could “park here in front of the
doors and leave out that side street over there.” After only a minute or two, Reid pulled the car away from
the entrance, drove around the side of the bank, and stopped at the intersection with the side street. Reid
then backed up and drove forward a few times, before driving away. Warren heard defendant say “the best
way out of here is we can turn here and get out of here quick.”
        On the return from Stockbridge, Wesley had Reid stop at a friend’s house in Ypsilanti, Michigan,
to pick up some money before taking him home. Reid proceeded to the police department, where the
videotape was removed. It was discovered that the tape had run only 60 minutes, probably because the
camera was set to “standard” instead of “long” play. Driving noise and other interference made portions
of the recording inaudible and the tape ran out before the trip was completed. Admission of the tape is the
basis for two of the defendant’s claims of error.
        That night, around 8 p.m., Reid called Wesley at Agent Booth’s request to try to find out when the
robbery would occur. That conversation, made from a pay phone, was recorded and transcribed. Reid asked
Wesley if he was “serious about doing that tomorrow.” Wesley replied that he did not know because he
“ain’t even talked to nobody yet” and said he doubted it would be tomorrow. Reid asked if he was “for
real,” which made defendant challenge why she was asking this over the telephone. Wesley ended the
conversation saying he was “at a standstill.” Agent Booth felt the defendant had become suspicious,
believed that a bank robbery was imminent, and was concerned that the defendant might change locations
or accomplices. As a result, Agent Booth decided to get an arrest warrant.
       On Friday, September 5, 2003, at about 2:45 p.m., defendant was arrested in front of his home in
Romulus. No accomplices were present and no weapon or disguises were found. As the police approached,
Wesley took something from his pocket, which he later admitted was Ecstasy, and ate it. Wesley did not
make a written statement, but told Agent Booth that he had been to Stockbridge twice; once to buy
marijuana in July 2003, and once when he went with Reid to see the bank. He told Booth that the real
reason he went with Reid was to get a ride to Ypsilanti. Wesley admitted that he had talked about robbing
the bank, but said he was too afraid to actually do it.
         There was also evidence that Wesley had attempted to recruit someone else to participate in the
robbery. William Carr—who was dating Reid’s sister and had a prior conviction for armed robbery—was
subpoenaed to testify to a conversation he had with Wesley in late August or early September 2003. Carr
testified that he was buying drugs from Wesley one night, when Wesley said “he knows of a woman out at
Stockbridge or Chelsea, or somebody, who knows a bank that could be robbed and wanted to know if I was
interested, you know.” Carr told defendant that he was not interested, but they discussed it for five or ten
minutes.
        Shortly before trial, defendant filed a motion in limine seeking to exclude the videotape made during
the ride to Stockbridge because it was inaudible and unintelligible. After in camera review of the videotape
recording and transcript, the district court found the audible portions were admissible. Defendant also
sought to strike a passage from the tape making reference to his own prior incarceration. The district court
found those statements were res gestae of the attempted robbery, rather than “other acts” evidence under
Fed. R. Evid. 404(b).
        Trial commenced on January 20, 2004, and the jury returned a verdict of guilty on January 24, 2004.
Defendant moved for judgment of acquittal pursuant to Fed. R. Crim. P. 29, which was denied at the close
of the government’s case and when renewed at the close of all the evidence. On April 27, 2004, defendant
No. 04-1626             United States v. Wesley                                                        Page 4


was sentenced to a term of 225 months’ imprisonment, to be followed by a three-year term of supervised
release. This appeal followed.
                                                      II.
A.     Sufficiency of the Evidence
        When considering a challenge to the sufficiency of the evidence to sustain a conviction on direct
appeal, “the relevant question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). We must also
resolve all reasonable inferences in favor of the government. United States v. Searan, 259 F.3d 434, 441 (6th
Cir. 2001). We may not, however, reweigh the evidence, reevaluate the credibility of witnesses, or
substitute our judgment for that of the jury. United States v. Hilliard, 11 F.3d 618, 620 (6th Cir. 1993).
       1.      Actual Intimidation
        Defendant argues that attempted bank robbery requires proof of “actual intimidation.” See 18 U.S.C.
§ 2113(a) (“Whoever, by force and violence, or by intimidation, takes, or attempts to take, . . .”). Conceding
that this argument is raised for the first time on appeal, defendant contends that the argument was not
waived because his Rule 29 motion for judgment of acquittal was “general in nature.” Specificity in a Rule
29 motion is not required. United States v. Dandy, 998 F.2d 1344, 1356 (6th Cir. 1993). When a defendant
makes a motion on specific grounds, however, all grounds not specified in the motion are waived. Id. at
1357.
        A similar waiver argument was addressed in United States v. Chance, 306 F.3d 356, 371 (6th Cir.
2002). There, the court found that although the colloquy focused on a specific area of the evidence, the
motions were general in nature and the district court treated them as such by assessing the evidence as to
each element of each crime. Here, the defendant’s rule 29 motion challenged the sufficiency of the evidence
to establish both elements of attempt. This, in the abstract, might seem to be a “general” challenge to the
sufficiency of the evidence. In fact, defendant is arguing that there is an additional element to attempted
bank robbery. For this reason, we find defendant’s motion was not a general challenge to all the elements
and this claim was waived by the failure to raise it in the Rule 29 motion. See United States v. Price, 134
F.3d 340, 350 (6th Cir. 1998).
        Even if the issue had not been waived, however, we would find it to be without merit. On appeal,
defendant relies on a Fifth Circuit decision, openly creating a split of authority, that held the most natural
reading of the statute requires proof that the defendant actually committed an act of intimidation, or of force
and violence, in order to be convicted of attempted bank robbery. United States v. Bellew, 369 F.3d 450
(5th Cir. 2004). That is, the court found the “attempt” relates only to the taking and not the intimidation.
       This court has not specifically addressed this argument, but it has been squarely rejected by three
other circuits. See United States v. Stallworth, 543 F.2d 1038, 1040 (2d Cir. 1976); United States v.
Jackson, 560 F.2d 112, 116 (2d Cir. 1977); United States v. McFadden, 739 F.2d 149, 152 (4th Cir. 1984);
United States v. Moore, 921 F.2d 207, 209 (9th Cir. 1990). Rejecting this argument as “wooden logic,” the
Second Circuit explained that:
       Attempt is a subtle concept that requires a rational and logically sound definition, one that
       enables society to punish malefactors who have unequivocally set out upon a criminal course
       without requiring law enforcement officers to delay until innocent bystanders are imperiled.
Jackson, 560 F.2d at 116 (quoting Stallworth, 543 F.2d at 1040). We agree that to read the statute as
defendant urges would be inconsistent with our definition of attempt crimes, and would, without reason,
require proof that a defendant actually confronted someone in the bank before he could be convicted of
No. 04-1626               United States v. Wesley                                                              Page 5


attempted robbery. We find the only reasonable interpretation is that the statute criminalizes attempted
taking “by force or violence, or by intimidation.” Actual intimidation is not required to prove attempted
bank robbery under the first paragraph of 18 U.S.C. § 2113(a).1
        2.      Substantial Step
        To convict a defendant of attempt, the government must prove (1) the defendant’s intent to commit
the criminal activity; and (2) that the defendant committed an overt act that constitutes a “substantial step”
toward commission of the crime. United States v. Bilderbeck, 163 F.3d 971, 975 (6th Cir. 1999). Defendant
argues, as he did in his Rule 29 motion, that the 2evidence was insufficient to establish that he took a
substantial step toward commission of the robbery.
        “Because of the problems of proving intent in attempt cases and the danger of convicting for mere
thoughts, desires, or motives, we require that the substantial step consist of objective acts that mark the
defendant’s conduct as criminal in nature.” Id. (citing United States v. Pennyman, 889 F.2d 104, 106 (6th
Cir. 1989)). This objective conduct must unequivocally corroborate the required subjective intent to engage
in the criminal conduct. Id. Emphasizing that the “substantial step” requirement is an objective one, this
court explained in Bilderbeck that
        under the “substantial step” analysis, an appellate court evaluates whether any reasonable
        person could find that the acts committed would corroborate the firmness of a defendant’s
        criminal intent, assuming that the defendant did, in fact, intend to commit the crime. The
        requirement does not mandate that the activity constituting a substantial step must be
        sufficient to prove that the defendant had the subjective, specific intent to commit a crime.
        The intent may need to be proven separately.
163 F.3d at 975.
       Arguing that his actions represented “mere preparation,” as opposed to a substantial step toward the
commission of the crime, defendant emphasizes that he was arrested at his home an hour away from the
bank, by himself, and without a weapon or disguise. While this indicates that the robbery may not have
been as imminent as it seemed to Agent Booth, it does not negate evidence from which the jury could have
found Wesley intended to rob the bank or that he planned to do it “soon.” Likewise, although defendant
told Reid that he doubted the robbery would be the next day and said he was “at a standstill,” he did not
disavow his plan or indicate he was having second thoughts. In addition, the jury was free to conclude, as
Agent Booth believed, that these statements were a reflection that Wesley had become suspicious of Reid.
As we made clear in Bilderbeck, the focus of the inquiry is not so much whether the actions constitute
“preparation,” but whether the conduct corroborates clear criminal intent.
       Defendant’s heavy reliance on United States v. Buffington, 815 F.2d 1292 (9th Cir. 1987), is
misplaced. Although the court in Buffington reversed the defendants’ convictions for attempted bank


    1
      The Fifth Circuit found consolation in its view that the defendant in that case, who went into the bank to rob it
but left before making any demand for money, could have been charged with bank larceny under the second paragraph
of § 2113(a) (whoever “enters or attempts to enter any bank” “with intent to commit . . . any felony affecting such
bank,” “or any larceny”). This would not apply to Wesley, or to any defendant who did not enter or attempt to enter
the bank.
    2
      The jury was instructed, without objection, that: “Merely preparing to commit a crime, however, is not a
substantial step, not an overt act. Defendant’s conduct must go beyond mere preparation and must strongly confirm
that he intended at some point to commit the crime of bank robbery. The Government does not have to prove that
the defendant did everything except the last act necessary to complete the crime. Any substantial step beyond mere
preparation is enough.”
No. 04-1626               United States v. Wesley                                                              Page 6


robbery on sufficiency of the evidence grounds, closer examination of the case reveals that it is easily
distinguished. Significant to the reasoning in Buffington was the fact that the government had chosen not
to present evidence concerning the information received from the confidential informant. Instead, the
government argued that intent could be inferred from the observations of the police officers who saw the
defendants drive slowly around a bank in a shopping center and return five days later with revolvers and
in disguises. The Ninth Circuit found this evidence alone, unaided by the informant’s testimony, was
insufficient to establish intent to rob the bank or a substantial step toward commission of the crime. In this
case, however, the government offered       substantial evidence from Reid and others concerning Wesley’s
intent to rob the Stockbridge bank.3
        As we observed in our initial opinion, whether there was sufficient evidence to establish that Wesley
committed an overt act that constituted a substantial step toward commission of the crime is a closer
question. While we find reversible error in the admission of the statements referring to Wesley’s prior
conviction, retrial is not precluded if the evidence admitted at trial, whether erroneously or not, was
sufficient to support the defendant’s conviction. Lockhart v. Nelson, 488 U.S. 33, 34 (1988). In resolving
that question, however, we are mindful that we may not reweigh the evidence or substitute our judgment
for that of the jury.
        Wesley’s overt acts began with his late-night visit to Reid’s home to question her about whether the
bank was a good target for robbery. Wesley recruited Reid to act as the “getaway” driver because she was
familiar with the area. There was also evidence that Wesley attempted to recruit Carr, a convicted robber,
to participate in the bank robbery, although Carr declined to join in. Wesley conveyed specific plans to Reid
and told her he knew someone he could trust to help. Finally, Wesley had Reid take him to see the bank,
including the open vault, and picked the route for the getaway after the robbery.
        The critical inquiry in the “substantial step” analysis, separate from the question of subjective intent,
is whether the defendant’s conduct, viewed objectively, corroborates his subjective intent to commit the
crime. For example, we explained by way of a hypothetical in Bilderbeck that a penniless man who
engages in active negotiations with a drug dealer, knowing that he had no money with which to consummate
the sale, has committed acts that objectively corroborate the firmness of his intent and constitutes a
“substantial step” toward the commission of the crime. 163 F.3d at 975. Taking the evidence in the light
most favorable to the government, as we must, we find that a rational juror could conclude beyond a
reasonable doubt that Wesley’s conduct, when viewed objectively, unequivocally corroborates his subjective
intent to commit bank robbery. As a result, we find there was sufficient evidence presented at trial to
support Wesley’s conviction for attempted bank robbery.
B.       Evidentiary Issues
        The district court’s evidentiary rulings are reviewed under an abuse of discretion standard. United
States v. Mack, 258 F.3d 548, 552 & n.1 (6th Cir. 2001). Defendant appeals both from the admission of the
videotape recording made during the car ride to Stockbridge to “case” the bank and from the failure to
redact from that recording the defendant’s reference to his own prior incarceration.
         1.     Videotape Recording
       Admission of tape recordings rests within the sound discretion of the district court. United States
v. Robinson, 707 F.2d 872, 876 (6th Cir. 1983) (Robinson I). The tape must be authentic, accurate and

     3
      When the defendants in Buffington returned to the shopping center, officers saw them drive slowly past two
banks before parking the car. Then one defendant went into a nearby store and behaved suspiciously, while the other
two got out of the car and directed their attention to the bank. By sheer coincidence, a power outage caused a teller
to lock the front door of the bank just as she saw one of the defendants covering his face with a scarf. The defendants
got back into the car and left.
No. 04-1626             United States v. Wesley                                                          Page 7


trustworthy, and “must be audible and sufficiently comprehensible for the jury to consider the contents.”
Id. (citations omitted). The fact that the tape has some unintelligible portions does not automatically render
the entire recording inadmissible. United States v. Robinson, 763 F.2d 778, 781 (6th Cir. 1985) (Robinson
II). To be inadmissible, “the incomprehensible portions must be so ‘substantial as to render the recordings
as a whole untrustworthy.’” United States v. Wilkinson, 53 F.3d 757, 761 (6th Cir. 1995) (quoting Robinson
II, 763 F.2d at 781); see also United States v. Terry, 729 F.2d 1063, 1068 (6th Cir. 1984); United States v.
West, 948 F.2d 1042 (6th Cir. 1991).
        Defendant contends that it was an abuse of discretion to allow the videotape recording into evidence
because the incomprehensible portions were so substantial as to render the recording as a whole
untrustworthy. In response to the defendant’s motion in limine, the district court listened to the videotape
recording in camera and compared it to the transcript that had been prepared of it. With respect to the
audibility of the tape and the accuracy of the transcript, the district court found that
       the audio was interrupted by jostling of the car, electronic interference, to some extent, wind
       noise. The voices are much easier to hear; indeed they’re crystal clear when the car comes
       to a stop or it comes near making a stop. The portions of the transcript that correspond to
       the tape are, so far as I can tell, spot on. They’re entirely accurate. They accurately
       transcribe the intelligible words. And they accurately indicate with parenthetical notations
       of unintelligibility where the voices cannot be deciphered or heard clearly enough to be
       transcribed. The portions that are transcribed appear to deal in some measure with planning
       to rob a bank. There’s no question about the relevance of the tape. There’s indeed no
       contest about that. But the tape is not so at odds with the printed transcription that it is to
       be deemed inadmissible. It is not equivocal. . . .
               The surveillance video should be admissible. The portions that are unintelligible are
       just that. They’re neither pro [n]or con. They’re neither here nor there. They’re simply
       unintelligible. Voices can be detected but what’s being said cannot be.
The tape was admitted into evidence and the jury was allowed to use the transcript as an aid. Review of the
transcript makes clear that the audible portions were comprehensible and supports the district court’s
assessment that the inaudible portions were not so substantial as to render the whole recording
untrustworthy.
       2.      “Other Acts” Evidence
       Wesley also objected before trial to the admission of the following passage from the videotape:
       Yeah, I’ve been knowin’ this brother all my life. We went to prison together. We did
       somethin’ together. We got caught, we went to trial. Ain’t nobody tell on nobody. You
       know what I’m sayin’? I ain’t goin’, hell, no. I ain’t no fool.
Defendant maintains that this “other acts” evidence was improperly admitted under Fed. R. Evid. 404(b).
The government argued that it was admissible as “background” evidence.
         This court has held that “background” evidence, often referred to as res gestae, is not “other acts”
evidence subject to Fed. R. Evid. 404(b). See United States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000).
Such evidence consists of “other acts that are inextricably intertwined with the charged offense or those acts,
the telling of which is necessary to complete the story of the charged offense.” Id. “Proper background
evidence has a causal, temporal or spatial connection with the charged offense. Typically, such evidence
is a prelude to the charged offense, is directly probative of the charged offense, arises from the same events
as the charged offense, forms an integral part of a witness’s testimony, or completes the story of the charged
offense.” Id.
No. 04-1626             United States v. Wesley                                                       Page 8


        As the district court found, this evidence was not “other acts” evidence because it was intertwined
with the attempted bank robbery offense. The statements were connected to the attempted bank robbery as
they were made on the way to “case” the bank, were part of the planning of the robbery, and were relevant
to establish Wesley’s intent as he explained the suitability of someone he was considering asking to join
them in the robbery. Defendant also argues that the evidence should have been excluded under the
balancing required by Fed. R. Evid. 403.
        Under Rule 403, relevant evidence may be excluded if its probative value “is substantially
outweighed” by the danger of unfair prejudice. Our review of the district court’s balancing is for abuse of
discretion. Unfair prejudice “‘does not mean the damage to a defendant’s case that results from the
legitimate probative force of the evidence; rather, it refers to evidence which tends to suggest decision on
an improper basis.’” United States v. Schrock, 855 F.2d 327, 335 (6th Cir. 1988) (citation omitted).
        While the statements were relevant to show defendant’s intent, it was hardly the only or the strongest
evidence in that regard. As the district court recognized in deciding to give a cautionary instruction,
reference to defendant’s prior incarceration presents a classic danger of unfair prejudice—that the jury may
decide guilt based on the fact that the defendant has a prior conviction. This is particularly a concern where
the evidence presents a close question on the sufficiency of the evidence. Although the cautionary
instruction reduces the danger of unfair prejudice, we find that the probative value of the evidence in this
case was substantially outweighed by the danger of unfair prejudice and, therefore, defendant is entitled to
a new trial.
        Accordingly, we DENY the defendant’s petition for panel rehearing; AMEND our prior opinion to
explicitly decide the sufficiency-of-the-evidence issue; and REVERSE defendant’s conviction and
REMAND to the district court for new trial. As a result, we need not address defendant’s challenges to his
sentence under Blakely v. Washington, 124 S. Ct. 2531 (2005), and United States v. Booker, 125 S. Ct. 738
(2005).
No. 04-1626             United States v. Wesley                                                          Page 9


                                             _________________
                                                 DISSENT
                                             _________________
        BATCHELDER, Circuit Judge, dissenting. While I agree with the conclusions of the majority in
Parts II-A-1 and II-B, I respectfully dissent from Part II-A-2 because I believe that even viewing the
evidence in the light most favorable to the government, the facts do not establish that Wesley committed
overt acts that constituted a substantial step towards the commission of a bank robbery.
        The majority correctly points out that in order to convict a defendant of an attempt crime the
government must prove both that the defendant had the intent to engage in the proscribed criminal activity,
and that he committed an overt act that constitutes a substantial step towards the commission of the crime.
Bilderbeck, 163 F.3d at 975. For that overt act to constitute a substantial step, the “defendant’s objective
conduct, taken as a whole, must unequivocally corroborate the required subjective intent” to engage in
criminal activity. Id. As we have explained, “[a] substantial step must be something more than mere
preparation.” United States v. Bailey, 228 F.3d 637, 640 (6th Cir. 2000). “Evidence is sufficient to sustain
a conviction for criminal attempt, if it shows that the defendant’s conduct goes beyond ‘preliminary
activities,’ and ‘a fragment of the crime [was] essentially . . . in progress.’” United States v. Price, 134 F.3d
340, 350 (6th Cir. 1998) (quoting United States v. Dolt, 27 F.3d 235, 239 (6th Cir. 1994)).
        The majority concludes that Wesley took a substantial step towards the commission of bank robbery
by engaging in several overt acts, including questioning Reid concerning the Stockbridge State Bank and
recruiting Reid to act as a getaway driver; attempting to recruit Carr, a convicted armed robber, to
participate in the robbery; and casing the bank on September 3, 2004. In my opinion, this is not a case in
which the defendant “went beyond mere preparation,” Bailey, 228 F.3d at 640, or “a fragment of the crime
[was] essentially . . . in progress.” Dolt, 27 F.3d at 239.
        In my view, we must look as well at what Wesley failed to do to carry out his plan and recognize
just how far he was from actually carrying out the plan. Wesley was arrested at his home, over one hour
away from the Stockbridge State Bank, but only about one hour before the bank was set to close that Friday.
In his discussions with Reid, Wesley talked about robbing the bank during business hours, wearing dark
clothes, using masks, and carrying firearms during the robbery. At the time of Wesley’s arrest, the police
found no disguises or masks, no weapons, and no other robbery paraphernalia. Wesley also suggested that
he would have to steal two switch cars before the robbery could take place, but the government presented
no evidence that he had tried to accomplish this task in preparation for the robbery. And while Wesley told
Reid that he would need to recruit others to help carry out the robbery, he had not done so. I do not dispute
that Wesley may have had the subjective intent to commit bank robbery, however, I do not believe that,
when viewed objectively, the facts in this record establish that a he had taken a substantial step towards the
commission of the robbery or that any reasonable juror could conclude otherwise.
        Because in my mind the evidence adduced at trial, whether erroneously or not, was insufficient to
sustain a conviction for attempted bank robbery, I respectfully dissent. I would therefore hold that retrial
is precluded. See Lockhart, 488 U.S. at 34; see also Quinn, 901 F.3d at 529 n. 5.
