he also was indicted on a handful of other bank robberies and an attempted bank robbery he was convicted of three bank robberies the attempted bank robbery but there was insufficient evidence to show that mr daniels in fact was the perpetrator of those bank robberies and there is insufficient evidence to show that mr daniels although the person who was in the back of the one word says this is crazy and he i the question i think is whether he made any substantial step toward robbing the bank i agree on what i want to know is why isn't entering the bank to make withdrawals he said when he doesn't have an account there don't have any money there why isn't that a substantial step because there are any number of reasons that as you've just pointed out that he could have turned around and left he could have thought better of it at at at any point of mind i agree i think some of the other phrases in buffington also support my argument because it has to be of some such substantiality that unless frustrated the crime would have occurred and i don't bank robbery when he walks in before you meet the manager well he because there are any number of things again that can happen between after he walks in those doors he can get a phone call on his phone he to leave we don't know and if in fact that's what happened that he got a call on his phone and he decided not to not to go into the bag after all also we have to show that he intended that there was intent not me the government has to show that he intended to rob the bank when he walked in i think this would be a completely different case if for some reason he dropped a demand out on the floor as he walked out i mean that he could have given the demand to the person who came up to him instead of  a guard grabbing his arms and another one handcuffing him as opposed to interrupted by circumstances dependent on as well such as changing his mind and deciding this is a stupid thing to do crazy thing to do was he said i'm i'm not sure i understood what your question was reason taylor can't would have been consummated unless interrupted by circumstances independent of his will to me the most reading of that is is what caused the robbery not to occur his own will or somebody stopping him and i can't see why there isn't at least a jury question that it was purely his own decision not to complete the crime as opposed to somebody stopping him the jury could also interpret it to mean the manager stopped him and it could be either way and if it could be either way that means there's sufficient evidence to have this jury instructed properly  thought i believe so i did not argue that the jury was improperly instructed i haven't articulated this clearly looks like i'm not making myself clear what i want to know is why couldn't jury thin start and i certainly wasn't going into the bank of substantial step because there are too many steps that take place after that he stood in line he waited as he you know he waited his turn he was talking to someone on the phone  and and in that period of time and it may have been a brief period of time he certainly could have changed his mind which at some point he did change his mind whether he changed his mind based upon his phone conversation what he was thinking in his head or even perhaps if the bank manager walked up to him and he thought you know i'm you know i'm not going to do you know that just gave him enough time to pause and think about now we've got motive and then he says i'm going to rob this back i'll put on my lucky robber uniform and go into the bank and give him a note like i always do and get a little money that he puts on his uniform and he goes into the bank and at that point it looks to me like under still the attempted robbery is completed and it really doesn't matter that he changed his mind that's what i'm trying to find out because i'm really sympathetic t claim that he was robbing that bank i mean it looks like he just but if you change his mind there there was no attempt if he changed his mind there was no attempt at that bank robbery but not only does it say if you change his teller and then said oh never mind what you just said he changed his mind so still no attempt if he had changed his mind what without any kind of intervention like if he had gotten up to the front of the line and said you know and turned around and walked back out i would say that there's still no attempt ok but it's but that means it's not about whether he changed his mind it depends on what he's done up to that point is what i'm getting from what you're is not exclusively dependent on changing his mind because if if i'm if you're the bank teller and i come up to you and i hand you not saying give give me all your twenty's and put them in a bag and then i don't i whether so changing your mind is enough and the way i had read the law changing your mind before you've taken a substantial step means you haven't committed an attempt changing your mind after you've taken a substantial step means you've committed an attempt that's why i've read it and i think they're trying to find out if there's authority to read it otherwise that if you change your mind during the course of the crime that then you're no money was there he just left it and ran away and i'm it never occurred to me frankly that he had attempted to rob the barbecue restaurant but it sounds like it should have occurred to me because i think what you're saying is it's not an attempt if you change your mind during the course of the crime i think you see i think if there are two elements to attempt of course you have to show the specific intent to commit the crime and you have to show a a substantial step so i think in this case where we're missing two things we're missing proof beyond a reasonable doubt that there was intent and we're missing proof beyond a reasonable doubt that he committed a substantial step now unlike the government of course i don't think it's saying that  the government actually uses the word essential and some essential steps in some places out there argument but i don't think any ok so yes we know there's two elements for attempt are there any cases that talk about whether the culpable his mind right we all know it changes mine and so are there any cases that say well if you walk in a bank then you change your mind and clearly he wasn't you i do think it's partly to know that i don't think that there was proof that he intended to prop the bank certainly that he intended to rob the bank on this day of the film and about the withdrawal you don't really read anything into waiting in line at the bank and then he gets approached by the bank manager i mean i could see him copping an attitude i mean i can i understand it you can read it two ways but i think it's judge kleinfeld said before that's what jury questions are about right there is a  know this is the interesting legal issue in the case as a practical matter did the attempt conviction really contribute at all to the sentence here yes he really got below guidelines on trade or he he did i mean if it had this minuscule effect on the offense level sentence i'm running out of time i did want to cover the issues regarding the three counts for which he is was convicted of actually being the person who wrapped the bank i think there are some serious identification issues in this that present themselves  instructions and i do have a copy of instruction it appears to be the standard one goes to the elements and the third one being the defendant did something that was a substantial step toward committing the crime your preparation is not a substantial step towards committing the crime to constitute a substantial step a defendant's act or actions much demonstrate that a crime will take place unless interrupted by independent circumstances my recollection is that some model instruction did you hear i was there were two of us trying the case i this individual was positively identified the teller in the manager mr white all recognized him as you first came in from a picture of a robbery a few days before the different branch of this credit union and stood up to meet him he was in line his testimony was that he asked him to take off his sunglasses and his cap pursuant to the credit union policy because they don't like disguises it no it didn't and and he did communicate with the manager he the manager asked him can i help you and he was in line and the defendant said yeah i'm here to make a withdraw and the manager's response was ok i need to see the your debit card to your account number meanwhile the testimony is while this conversation was going on the defendant was moving towards the count station he then decided obviously changed his mind and said this is crazy and walked out and i did have a phone next to his his ear there's no testimony that there was any conversation going on but there was a phone out there it was argued to the jury that on the manager also testified that pursuant to a subpoena we had provided him with he checked the bank records and the defendant had absolutely no account at any time in any of the branches of this credit union my argument to the jury was when he said he was making withdraw he was being honest and truthful the problem is when you don't have an account the paperwork that you submit i think i refer to it as a withdrawal slip which i don't think anybody uses anymore but some of us remember that they were around instead of having withdrawals which he was going to give a demand note but he was confronted before he got to that station  to the issue and of intent he was very specific he said he wanted to make a withdraw now the cases about sufficiency of the evidence still and buffington are more of what we describe as  they were around checking it out and everything else and i think it was still specifically said as you are facts do not establish either actual movement toward the bank or actions that were analytically similar to such a movement so in still it could have been enough if you actually walked towards a bank here not only did you walk towards your credit unit he was in there and again you know what his intent was why he decided to change his mind that's a jury question the jury was instructed properly and found him guilty i connect to this address i want to just two things and each of the other count conviction you have to also have some corroboration right so with count one he was identified by bruno who was the greeter in court right absolutely ok count to which is twelve twenty two there wasn't an identification by any person and there was testimony by the teller that the wad of money in the photo  from the cell phone that the defendant had when he was arrested looked about the same as many that was given to him yes there now there had been a photo lineup jennifer occasion by one of the other employees pamela mitchell introduced into the court yesterday and she said something like he resembled the person that was in the other robbery or something like that and that was another different one yeah that was one of the other one  or that's the guy was just my recollection or is it just she den if i that person it wasn't one of the other ones said this one more closely resemble it is one of those broad words like cops a vehicle and you don't know if it's  did that testimony was when he entered the bank she noticed to the resembled that there branch you've been robbed earlier also and there were they get the pictures of you know there's a little bit on the lookout type thing for these people and she's testifying i believe what you know i just mentioned was that he when he came in he looked like the person that had been in the picture but direct examination of pamela mitchell includes it she was shown a series of photographs with a blue sticker on it with the letter a and she went through those yes and what did you what do you recognize those pictures to be they were the pictures shown by the investigator at the time did you identify any of the pictures as being the picture of the person who was involved in  which one was that we was number two number two was the defendant up that was the defendant so she picked him out of the photos yes she did ok so count three that's the corroborating evidence and was there any identification ok do you know if the guy did count four well in all of these situations there were surveillance pictures which were shown to the jury and the jury had a chance to look at the pictures and make their own assessment about whether there was a connection between the defendant and the person who perpetrated the robbery the corroboration elements that the supreme court has talked about you know went back and forth a little bit about whether you need corroboration of the crime itself was committed or whether you just needed to link the defendant in this particular case i think the court said oh danny you didn't need necessarily corroboration of the crime was committed especially when it was this type of crime where we know there was a banker there's no question about a  but was there anything to link him to it and in this particular case the jury saw pictures so what what flipped them to account for it was they saw they saw the pictures of the individual i'm sorry  saw the images from the surveillance camera yes and of course the defendant obviously as he did in all of them acknowledge them and count five you had in court id not only was it similar in everything but it would it included the evidence where she was used to help convince a defendant at the time of his confession because the confession the interview took about two hours pictures a not every bank has good quality surveillance cameras so i guess the only question i have is the wide many is that  pretties things on and jet printer so that we could actually look at them and see what it shows i once had a case where the government actually used a bad xerox to deceive the panel now and they've been wary of them for the deputies and and in matter of fact this particular case was the first one tried in the new courthouse so we have done there the use electronics and there was some awkwardness at the beginning because this according knowledge there were gremlin copies the ones that were submitted and i think the fence council included them in her excerpt where the black and white those but i will tell the court that the picture you wonder from being fooled when i see a picture that is obviously much worse than could be shown to me hopefully not in this case your honor we not attempted to do that at all but the the ones the digital versions were much better and i toyed with the idea of somehow presenting you with digital images but honestly i couldn't figure out how to do it if you don't know i think in this environment how i could present that laptop or something like that and the jury saw them just on the set yes they saw them on multiple monitors yes you can make clearly in point what i imagine was obvious but maybe but on apparently it isn't that once you've taken a substantial step changing your mind doesn't have vitiate the attempt know but the the while the case law would seem to suggest that if you've taken that substantial step that's what i'm asking is there i face that line i think i think in had the intent took a substantial step changed his mind and the appellate decision said he either did or he did not have sufficient evidence for it though i don't know of any case specific like that my thought is that if he did that and it was an independent decision it was not influenced by outside factors in this case i thought it the word was interrupted in case interrupted influenced well interrupted is a correct term not have a proper uniform and and then the government essentially tried to argue m o in this case a you know that you know presented to the man out well their own agent said the demand outs are very comm n and so there was nothing that was of there wasn't an m o with this was not an m o case so i think that that's important to know also i would note that that again the which he actually told the agent during the interview that he said i am not going to tell on somebody else or you want to switch out his brother course that could mean false confessions all the way through right we're not talking here sufficient