Defendant-Appellant Roberto Medina devised a plan to rob his former employer, but feared he would be recognized by co-workers if he was present during the crime. Medina therefore recruited Jose Lopez to carry out the plan, and Lopez in turn recruited two other confederates. Before the date of the planned robbery, Lopez agreed to act as an informant and betrayed Medina’s plot to the police. Count One of the indictment charged Medina and Lopez’s recruits with attempted robbery and conspiracy to commit robbery, in violation of 18 U.S.C. § 1951; and aiding and abetting robbery, in violation of 18 U.S.C. § 2. Count Two charged them with using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c); and aiding and abetting that offense, in violation of 18 U.S.C. § 2. After a jury trial in the Southern District of New York (Mukasey, /.), Medina was convicted and sentenced, inter alia, to a 46 month prison term on Count One and а consecutive 60 month prison term on Count Two.
On appeal, Medina argues that his conviction on Count One must be reversed because (a) the evidence is insufficient to establish either that Medina conspired with Lopez before he became a government informant or that Medina conspired with anyone other than Lopez; and (b) the court erroneously instructed the jury that Medina could aid and abet the other confederates using Lopez as аn intermediary even though Lopez was acting as an informant. Medina argues that his conviction on Count Two must be reversed because (a) the evidence was insufficient to establish that he aided and abetted the use or carrying of a firearm in relation to the robbery; and (b) the court’s charge erroneously permitted the jury to convict Medina merely on a finding that he knew a gun would be used during the crime. We affirm his conviction on Count One. We reverse as to Count Two, hоwever, because we agree with Medina that the evidence was insufficient to convict him of aiding and abetting the firearms violation. The critical circumstances supporting reversal are as follows. Medina performed no act that specifically aided and abetted the use or carrying of a gun during the attempted robbery. Medina was involved only in the planning stage of the robbery, and his plans did not entail a gun that was actually used or carried during the аttempted robbery. Although his coconspir-ators did carry guns during the attempted robbery, Medina did not aid and abet them in that respect, nor was he present during the attempted robbery when the guns were carried or used.
BACKGROUND
Roberto Medina was employed by the Foundation Construction Company for a brief period ending in October 1992. During his employment, he learned that in late December the company would have between $17,000 and $30,000 on its premises (apparently, the company’s payroll and Christmas bonus money). Medina decided to rob the company, and revealed his plan to Jose Lopez early in December. Medina and Lopez discussed the robbery at least three times over the next several days. Eventually, on or about December 11, Medina asked if Lopez was willing to perform the actual robbery — explaining that he could not do it himself, since a former employee would probably be recognized. Loрez agreed to carry out the robbery, and enlisted the assistance of two other men, Louie Villanueva and Daniel Delgado.
*43 On December 15, however, Lopez was arrested for carjacking and a related firearms violation. Lopez confessed the carjacking to detectives, and then went on to disclose Medina’s plan to rob the construction company. The detectives persuaded him to act as a confidential informant аnd to permit them to monitor and record his conversations with his coconspirators.
Following the instructions of detectives, Lopez telephoned Villanueva the next day and reviewed the robbery plans; Villanueva confirmed that he and Delgado were ready to commit the robbery. Lopez then met Medina at a Brooklyn candy store, where they discussed the robbery. Medina told Lopez to call him later that night. After leaving the candy store, Lopez mеt Villanueva and Delgado at a bodega several blocks away, briefed them on his conversation with Medina, and discussed details of the robbery.
That evening, Lopez telephoned Medina as planned. Medina told him that the robbery should take place between 4:00 and 4:30 p.m. on the following Tuesday, December 22. While Medina was advising him on other aspects of the robbery, Lopez mentioned that Villanueva was going to help commit the crime. Medina, genеralizing that, “yeah, two heads are better than one,” approved of the additional participant. Medina discussed Villanueva’s role in the robbery and share of the loot, referring to robberies at one point as “stiekups.”
On December 21, 1992, Lopez drove with Villanueva and Delgado to the construction company’s office, making final arrangements for the next day’s robbery. In separate telephone conversations that night with Villa-nueva and Medina, Lopez once again confirmed the details of the robbery plan.
On the day the robbery was to occur, December 22, 1992, Lopez spoke with Medina twice by telephone. In the morning, Medina expressed concern that Lopez might try to cheat him out of his share of the robbery proceeds, and requested that Lopez bring the loot to him directly after the crime was completed. He then told Lopez exactly where the money would be kept on the company’s premises. Medina paged Lopez’s beeper later that afternoon, and asked whether Lopez had a gun. Lopez answered that Villanueva had a gun. Medina then offered to provide a second gun, and arranged to deliver it to Lopez at the Brooklyn candy store. When they met a short time later, Medina handed Lopez an unusual .31 caliber revolver, and instructed Lopez on how to use it. After this meeting, Lopez gave the gun to a detective who had been conducting surveillance near the candy store.
At about 3:30 that afternoon, Villanueva and Delgado arrived at the construction company. They were arrested as they approached the front door. Both Villanueva and Delgado carried semi-automatic pistols; neither carried the weapon that Medina had given Lopez. Medina was arrested a short time later.
DISCUSSION
A. Conspiracy to Commit a Robbery
Medina argues that the evidence at trial was insufficient to convict him of conspiring to rob the construction company. We disagree and begin by noting the heavy burden a defendant must carry when challenging the sufficiency of the evidence.
See e.g., United States v. Alkins,
Medina’s primary attack on his conspiracy conviction is that he сould not have conspired with Lopez as a matter of law, because Lopez was already acting as a government informant when he agreed to commit the robbery for Medina. Lopez testified that he agreed to participate in Medina’s robbery plan on either December 11 or December 13. The government contends that
*44 Lopez did not become an informant until December 15. Medina argues, however, that Lopez was acting as аn informant by December 11, and that the evidence conclusively demonstrates this. He directs our attention to the fact that Lopez was initially arrested for the carjacking on November 17,1992, and released the same day after exchanging beeper numbers with one of the detectives who had arrested him. Lopez and the detective contacted one another using the beeper numbers prior to December 15. Although the police obviously knew whеre Lopez could be found and had obtained an arrest warrant on November 25, they made no attempt to arrest him until December 15. The government, for its part, cites trial testimony explaining that Lopez was released after his initial arrest because the carjacking victim failed to identify him in a line-up; that Lopez’s telephone conversations with detectives between November 17 and December 15 concerned other participants in the сarjacking; and that Lopez’s arrest on December 15 was based on information provided by an accomplice.
Medina claims that the evidence can support but one possible inference: that Lopez was acting as an informant by December 11. There is evidence, however, to support the view that Lopez’s conversations with detectives prior to December 15 concerned the carjacking, and that he was not acting as an informant until after that date. Drawing all inferences and resolving all credibility issues in favor of the government, we cannot say that such a jury determination would be irrational, and therefore will not disturb it.
The evidence is also sufficient to support a finding that Medina conspired with Villanueva. When Lopez told Medina that he had brought Villanueva into the scheme, Medina expressly approved the participation of the new coconspirator, on the principle that “two heads are better than one.” Medina also learned from Lopez that Villanueva would be carrying a gun to the robbery and, with this knowledge, offered to supply Lopez with a second gun. It does not matter that Medina was unaware of Villanueva’s full identity, or that they had never met.
See Rogers v. United States,
Nor was there any error in the district court’s jury instruction that Medina could conspire with Villanueva or Delgado through Lopez as an intermediary, even if Lopez was acting as an informant. “Although a person acting as an agent of the government cannot be a coconspirator, the presence of a government agent does not destroy a conspiracy in which at least two other private individuals have agreed to engage in an unlawful venture.”
United States v. Miranda-Ortiz,
B. Aiding and Abetting the Use or Carrying of a Firearm
Medina contends that the evidence was insufficient tо convict him of aiding and abetting a violation of 18 U.S.C. § 924(e)(1), which reads in relevant part:
Whoever, during and in relation to any crime of violence ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence ..., be sentenced to imprisonment for five years....
Attempted robbery is included in the statutory definition of “violent felony.” 18 U.S.C. § 924(e)(2)(B)(i).
Any person who “aids, abets, counsels, commands, induces or procures [the] commission” of a crime is punishable as a principal under 18 U.S.C. § 2(a). In order to sustain a conviction for aiding and abetting, we must find that “the defendant joined the specific venture and shared in it, and that his efforts contributed to its success.”
United States v. Labat,
The evidence adduced by the government to support the conviction is as follows: (a) Medina once referred to robberies as “stickups”; (b) Medina offered a gun to Lopez and was told thаt Villanueva was already planning to carry a gun; and (c) Medina later supplied Lopez with a .31 caliber revolver. Although the government is correct that this evidence demonstrates that Medina continued to participate in the overall enterprise after he learned that Villanueva intended to carry a gun, we do not agree that such evidence is enough to support his conviction for aiding and abetting under § 924(c), and therefore reverse his conviction on Count Two.
Under the law of this Circuit, Medina cannot be convicted as an aider and abettor unless he “consciously assisted the commission of the specific crime in some active way.”
United States v. Dickerson,
Review of Medina’s conduct discloses no basis for conviction under § 924(c). The gun Medina gave to Lopez was not carried or used by anyone during the attempted robbery and, therefore, Medina’s efforts to aid and abet the carrying of that gun cannot support a § 924(c) conviction. Villanueva and Delgado each carried a semi-automatic weapon to thе attempted robbery, but there is no evidence that Medina acted in any way to facilitate or encourage the use or carrying of those weapons. The government directs our attention to a telephone conversation between Medina and Lopez on the afternoon of the robbery attempt. When Medina asked if Lopez had a gun, Lopez replied that Villa-nueva already intended to carry a gun during the robbery. Medina then offеred to provide an additional gun, and eventually delivered a revolver to Lopez. But Lopez did not carry a gun in the attempted robbery. Although Medina learned that Villanueva intended to carry a gun, the evidence does not indicate that Medina in any way prompted or induced him to do so. By the time Medina learned that a firearm would be carried by Villanueva *46 (just two or three hours before the scheduled robbery), Villanueva had already independently dеtermined to carry a firearm. Since the use of that firearm was a foregone conclusion, and since there is no evidence that Villanueva was told of Medina’s offer to supply a gun, Medina could not have counseled or encouraged Villanueva to carry or use it. The government does not undertake to prove that Medina aided or abetted Delgado’s carrying of a firearm during the attempted robbery.
There is no evidence that Medinа warned his coconspirators that the intended victims would be armed, or that he counseled the brandishing of a firearm. Had Medina been present at the attempted robbery, we would consider whether his conduct at the scene facilitated or promoted the carrying of a gun, or whether he benefited from the gun’s use so that he could be said to constructively possess the weapon,
see, e.g., United States v. Torres-Maldonado,
The government argues that cases in several circuits support its view that a defendant aids and abets a violation of § 924(c) by planning a crime of violence with the knowledge that a firearm will be used, regardless of whether the defendant committed any act to facilitate or encourage the use of a firearm in relation to the underlying crime.
See, e.g., Torres-Maldonado,
In
Morrow,
every judge of the Sixth Circuit sitting en banc started from the proposition (as expressed by the majority) that aider and abettor liability under § 924(c) requires a showing “that the defendant both associated and participated
in the use of the firearm
in connection with the underlying crime” (emphasis added).
We note that this Circuit has sustained convictions for aiding and abetting an armed bank robbery under 18 U.S.C. § 2113(d) without requiring proof of an act specifically
*47
related to a firearm.
1
See United States v. James,
Although our court never has been squarely presented with this precise question, dictum in United States v. Wardy,777 F.2d 101 , 106 (2d Cir.1985), cert. denied,475 U.S. 1053 ,106 S.Ct. 1280 ,89 L.Ed.2d 587 (1986), suggests acceptance of the prevailing view that in a prosecution for aiding and abetting armed bank robbery, the government must establish not only that the defendant knew that a bank was to be robbed and became associated and participated in that crime, but also that the defendant ‘“knew that [the principal] was armed and intended to use the weapon, and intended to aid him in that respect’ ”
Although § 2113(d) is analogous to § 924(c) insofar as it imposes a mandatory sentence enhancement when the underlying crime is committed with a weapоn, the language of § 924(c) is different. Section 924(c) reaches “[w]hoever, during and in relation to a crime of violence ..., uses or carries a firearm.” Section 2113(d) punishes “[wjhoever, in committing, or in attempting to commit, [a bank robbery], ... puts in jeopardy the life of any person by the use of a dangerous weapon or device.” Under § 2113(d), each person who commits or attempts to commit a bank robbery with knowledge that a dangerous weapon or devicе may be used places other people in jeopardy by the use of that weapon or device, if only because (on the principle of division of labor) the tasks done by an unarmed criminal frees another to use or threaten violence. Further, each person who aids and abets the enterprise, or any participant in it, aids and abets the putting in jeopardy of other people. Section 924(c), on the other hand, reachеs only a person who either carries or uses (either actually or constructively) a firearm during and in relation to a crime of violence, rather than the armed and unarmed alike. It could be said that a defendant who is present but unarmed during the commission of a crime may (again, by the division of labor) make it easier for another to carry a firearm and therefore aid and abet that act. However, a defendant who is not present (such as Medina) cannot be said to aid and abet the use or carrying of a firearm simply by aiding and abetting the overall enterprise in which the firearm is employed.
CONCLUSION
For the foregoing reasons, the attempted robbery and conspiracy conviction under 18 U.S.C. § 1951 is affirmed, and the firearms *48 conviction under 18 U.S.C. § 924(c) is reversed.
Notes
. 18 U.S.C. § 2113(d) provides that "[wjhoever, in committing, or in attempting to commit, any [bank robbery], assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.”