                                  PRECEDENTIAL

 UNITED STATES COURT OF APPEALS
      FOR THE THIRD CIRCUIT
         ________________

               No. 17-1181
            ________________

     UNITED STATES OF AMERICA

                     v.

             JAMES GARNER,
         a/k/a ABD AL RAHMAN

                          JAMES GARNER,

                                Appellant
            ________________
 Appeal from the United States District Court
   for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 2-15-cr-00088-001)
  District Judge: Honorable Robert F. Kelly
              ________________

Submitted Under Third Circuit L.A.R. 34.1(a)
             January 7, 2019

       Before: AMBRO, SHWARTZ,
       and FUENTES, Circuit Judges
             (Opinion filed: February 8, 2019)

Kenneth C. Edelin, Jr.
1441 Sansom Street
Philadelphia, PA 19102

      Counsel for Appellant

William M. McSwain
  United States Attorney
Robert A. Zauzmer
  Assistant United States Attorney, Chief of Appeals
Joseph A. LaBar
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106

      Counsel for Appellee
                   ________________
                OPINION OF THE COURT
                   ________________

AMBRO, Circuit Judge

       A grand jury in the Eastern District of Pennsylvania
indicted James Garner on charges of conspiracy to commit
armed bank robbery in violation of 18 U.S.C. § 371, attempted
bank robbery in violation of 18 U.S.C. § 2113(a), and
possession of a firearm in furtherance of a crime of violence
and aiding and abetting that crime in violation of 18 U.S.C.
§§ 2 & 924(c)(1). A jury trial resulted in conviction on all
charges, and the District Court sentenced Garner to a total of
101 months’ imprisonment.         (His co-defendant Ruben




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Marshall, who had not been charged with attempted bank
robbery, was acquitted of all charges.) Garner now appeals his
conviction, arguing the evidence at trial was insufficient to
establish either conspiracy or an attempt to commit armed bank
robbery, and therefore the firearm charge fails as well. His
principal claim is that the chief witness against him was not
credible, and he offers an alternate interpretation of the
evidence at trial. But we do not draw inferences in the
defendant’s favor when reviewing for sufficiency of the
evidence, and thus affirm.
         We review sufficiency of the evidence “in the light most
favorable to the prosecution” to determine whether “any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” United States v.
Caraballo-Rodriguez, 726 F.3d 418, 424–25 (3d Cir. 2013) (en
banc) (quoting Jackson v. Virginia, 443 U.S. 307, 318–19
(1979)). In so doing, we must uphold the jury’s verdict unless
it “fall[s] below the threshold of bare rationality.” Caraballo-
Rodriguez, 726 F.3d at 431 (quoting Coleman v. Johnson, 566
U.S. 650, 656 (2012)). “Reversing the jury’s conclusion
simply because another inference is possible—or even equally
plausible—is inconsistent with the proper inquiry for review of
sufficiency of the evidence challenges.” Id. at 432.

       Viewed in this light, the evidence at trial showed the
following. 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. Garner




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left the mosque and entered Saber’s car to finish their
conversation.

       Later that day Saber met with Agent Reed and agreed to
participate in the latter’s investigation of Garner. They made
a recorded call to him to further discuss the robbery. On
another recorded call made February 9, Garner instructed
Saber to surveil Apex Bank, and once that was completed, they
would meet with a third individual, Ruben Marshall, to draw
up a plan. Saber did as Garner instructed and later met with
Garner and Marshall to plan 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. 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.

       To prevail on a conspiracy charge, the Government
must prove beyond a reasonable doubt that there was “(1) a
unity of purpose between the alleged conspirators[,] (2) an
intent to achieve a common goal[,] and (3) an agreement to
work together toward that goal.” United States v. Pressler, 256
F.3d 144, 147 (3d Cir. 2001). Each of the elements may be
proven “entirely by circumstantial evidence” so long as “the
inferences drawn . . . have a logical and convincing connection
to the facts established.” United States v. Applewhaite, 195
F.3d 679, 684 (3d Cir. 1999) (quoting United States v. Casper,
956 F.2d 416, 422 (3d Cir. 1992)).




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        Garner argues that there was no “unity of purpose”
between himself and Saber, as he was merely “conning” Saber
into believing he (Garner) intended to rob Apex Bank.
Appellant’s Br. at 28. But this is irrelevant. The charged
conspiracy was not between Garner and Saber, but between
Garner and Marshall. See Indictment as to James Garner, Doc.
#11 at 1, United States v. Garner, No. 2:15-cr-00088-001 (E.D.
Pa. Mar. 10, 2015). Indeed, merely conspiring with Saber, a
government informant, would not make Garner criminally
liable. This is the rule in other Circuits, see, e.g., United States
v. Corson, 579 F.3d 804, 811 (7th Cir. 2009); United States v.
Barboa, 777 F.2d 1420, 1422, 1422 n.1 (10th Cir. 1985)
(collecting cases), and we adopt it as well. Nor was the jury
required to credit his alternate interpretation of the facts.
        Garner further contends there could not have been a
conspiracy because details about the planned robbery—
including both the date on which it would occur and potentially
also which bank would be robbed—were not final prior to
Garner’s arrest. Appellant’s Br. at 26. But his discussions with
Marshall, as well as with Saber, about that robbery all centered
on Apex Bank. Garner instructed Saber to surveil Apex, and,
when Saber reported back, the three men discussed in detail
their plan to rob it. J.A. at 163–177; Supp. App. at 8–17, 29–
30. This was enough to support the conspiracy charge.
        To prevail on a charge of attempted bank robbery, the
Government had to prove that (1) Garner had the requisite
intent to commit armed bank robbery; and (2) he “performed
an act amounting to a ‘substantial step’ toward the commission
of that crime.” United States v. Hsu, 155 F.3d 189, 202 (3d
Cir. 1998); see also Model Penal Code § 5.01(1)(c). He
contends the evidence did not show any such substantial step,
essentially because there were other necessary steps toward
preparing the robbery he had not yet taken, such as acquiring a
car. But a defendant may commit an attempt even where he




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stops short of “the last act necessary” for the actual commission
of the crime. United States v. Hayward, 359 F.3d 631, 644 (3d
Cir. 2004) (Fuentes, J., concurring in part and dissenting in
part); see also United States v. Yousef, 327 F.3d 56, 134 (2d
Cir. 2003). 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.
       Finally, Garner’s sole argument as to the charge under
18 U.S.C. § 924(c) is that he cannot have possessed a firearm
in furtherance of a crime of violence if he did not actually
commit the underlying crime. But because his challenges to
the conspiracy and attempt charges fail, his challenge to the
§ 924(c) charge fails as well.
       Thus we affirm.




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