12 ation of 70 cents per share recited in de- fendants' counterclaims, hence plaintiffs’ reliance upon the Fieland transaction was just one of their contentions. But if de- fendants desired to challenge plaintiffs’ contention that Fieland accepted the 70,000 shares in discharge of the $35,000 debt, they should have done so at trial, ‘The distriet court did not err by including the full $35,- 000 in the computation of damages. ‘The district court correctly awarded to ‘Trans damages in the total amount of $48,- 200 plus interest as stated in that court's, judgment. Appellants and eross-appellants have shown no error in any of the conclusions of law of the district court, its judgment is UNITED STATI ‘of America, Appellee, Robert JACKSON, William Scott and Martin Allen, Defendants-Appellants. Nos. 888, 851, 852, Dockets 76-1564 to 76-1566. United States Court of Appeals, ‘Second Circuit Argued March 3, 1977. Decided July 19, 1977. Certiorari Denied Nov. 7, 1977. See 98 S.Ct. 434, ‘The United States District Court for the Eastern Distriet of New York, 435 F.Supp. 434, Jacob Mishler, Chief Judge convicted defendant of conspiracy to com- mit armed robbery, of attempted bank rob- bery, and of possession of two unregistered sawed-off shotguns, and defendants appeal- ed. ‘The Court of Appeals, Frederick van Pelt Bryan, Senior Distriet Judge, held that: (1) attempted bank robbery statute did not require that actual use of foree, 560 FEDERAL REPORTER, 2d SERIES violence, or intimidation precede an at- tempted taking; (2) attempted bank rob- Deries of same bank constituted distinet criminal transactions or episodes rather than simultaneous violations; (3) evidence was sufficient to sustain convictions of at- tempted bank robbery; (4) FBI agents had probable cause to arrest defendant based ‘upon information supplied by informant, and (5) evidence was sufficient to sustain conviction of possession of two unregistered sawed-off shotguns. Affirmed. 1. Robbery 12 Attempted bank robbery statute does rot require that actual use of force, vio- lence, or intimidation precede attempted taking. 18 USCA. § 2113(a), 2. Criminal Law 44 In order to sustain conviction of at- tempt, defendant must have been acting with kind of culpability otherwise required for commission of erime which he is charged with attempting and defendant must have engaged in conduct which constitutes sub- stantial step toward commission of the crime, or, in other words, conduct which is strongly corroborative of the firmness of the defendant's criminal intent. 3. Robbery 12 Finding that bank robbery was in progress is not essential to conviction of attempted bank robbery, 18 US.C.A, § 21154). 4. Criminal Law <=29 Attempted bank robbery of same bank on June 14 and June 21 of same year const tuted distinet criminal transactions or sodes rather than simultaneous violations, where robbery was postponed on June 1d because conditions did not seem favorable and where defendants then made new plans to rob bank on June 21. 18 USCA. § 2113(a). 5. Robbery =24.1(6) Evidence was sufficient to sustain con- vietions of attempted bank robbery. 18 USCA. § 2118(a).UNITED STATES v. JACKSON 113 (Ce as 860 24 112 (1977) 6, Arrest ©63.4(8) In order to establish probable cause for arrest, there is no need to show past relia- bility of an informant who is in fact a participant in the erime, 7. Arrest ¢=63.4(7) FBI agents had probable eause to ar- rest defendants for attempted bank robbery and to conduct search incident to such ar- rest, in view of information supplied by informant who had been participant in crime and in view of detailed corroboration of innocent elements of informants tip by FBI agent's observations on date of arrest. 8, Weapons ©=17(5) Evidence was sufficient to sustain con- vietion of possession of two unregistered sawed-off shotguns, in view of evidence which established that, at the very least, defendant was an aider and abettor of the unregistered possession of the firearms. 18 USGA. § 2 26 USCA. (LRC.1954) § 5861(4). Phylis Skloot Bamberger, New York City (William J. Gallagher, The Legal Aid Socie~ ty, Federal Defender Services Unit, New York City, of counsel), for appellant Jack- son. Henry J. Boitel, New York pellant Scott, ‘Trevor L. F. Headley, Brooklyn, N.Y. (Headley & Zeitlin, Brooklyn, N.Y., of coun- sel), for appellant’ Allen. Richard Appleby, Asst. U.S. Atty., Brooklyn, N.Y. (David G. Trager, U. $. Atty,, E.D.N. Y., Alvin A. Schall, Asst. U. 8. Atty., Brooklyn, N-Y., of counsel), for appellee. Before LUMBARD and OAKES, Cireuit Judges, and BRYAN, Senior District Sudge.* ty, for ap- "Frederick vP. Bryan, of the Southern District of New York, sitting by designation. 1. Jackson was sentenced to imprisonment for wo years on count one, and was given a sus- pended sentence with concurrent three-year {erms of probation, to commence atthe end of the prison sentence, on each of the other ‘counts. Scott was eentenced to imprisonment FREDERICK van PELT BRYAN, Senior Distriet Judge: Robert Jackson, William Scott, and Mar- ‘tin Allen appeal from judgments of eonvie- tion entered on November 23, 1976 in the United States District Court for the Bast ‘ern District of New York after a trial be- fore Chief Judge Jacob Mishler without a jury. Count one of the indictment alleged that between June 11 and June 21, 1976 the appellants conspired to commit an armed robbery of the Manufacturers Hanover ‘Trust branch located at 210 Flushing Ave- nue, Brooklyn, New York, in violation of 18 USC. § 371." Counts two and three each charged appellants with an attempted rob- bery of the branch on June 14 and on June 21, 1976, respectively, in violation of 18 USC. §§ 211%a) and 2 Count four charged them with possession of two unreg- istered sawed-off shotguns on June 21, 1976, in violation of 26 USC. § 5861(d) and USC. §2 After a suppression hearing on July 28, 1976 and a one-day trial on August 30, 1976, Chief Judge Mishler filed a memorandum ‘of decision finding each defendant guilty on all four counts. Appellants’ principal contention is that the court below erred in finding them guilty on counts two and three. While they concede that the evidence supported the conspiracy convietions on count one, they assert that, as a matter of law, their con- duet never erossed the elusive line separates “mere preparation” from “at- tempt.” This troublesome question was recently examined by this court in United States v, Stallworth, 543 F.2d 1088 (24 Cir. 1976), which set forth the applicable legal principles. For the reasons which follow, for five years on count one, and to seven years {imprisonment on each of the remaining three counts, all sentences to run concurrently. AL Jen received a five-year term of imprisonment ‘on count one, and terms of ten years on each of the remaining three counts all sentences to run ‘concurrently.14 wwe affirm the convietions of all three appel- lants on all four counts. 1 ‘The Government's evidence at trial con- sisted largely of the testimony of Vanessa Hodges, an unindieted co-conspirator, and of various FBI agents who surveilled the Manufacturers Hanover branch on June 21, 1976. Since the facts are of eritieal impor- tance in any attempt ease, United States v. Stallworth, supra, at 1039, we shall review the Government's proof in considerable de- tail? On June 11, 1976, Vanessa Hodges was introduced to appellant Martin Allen by Pia Longhorne, another unindieted co-conspira- tor. Hodges wanted to meet someone who would help her earry out a plan to rob the Manufacturers Hanover branch located at 210 Flushing Avenue in Brooklyn, and she invited Allen to join her. Hodges proposed that the bank be robbed the next Monday, June 14th, at about 7:80 A. M. She hoped that they ould enter with the bank mana- ger at that time, grab the weekend depos- its, and leave, Allen agreed to rob the bbank with Hodges, and told her he had ‘access to a ear, two sawed-off shotguns, and 88 caliber revolver. ‘The following Monday, June 14, Allen arrived at Longhorne’s house about 7:30 A. M. in a car driven by appellant Robert Jackson. A suitease in the back seat of the car contained a sawed-off shotgun, shells, materials intended as masks, and handcuffs to bind the bank manager. While Allen picked up Hodges at Longhorne’s, Jackson filled the ear with gas. The trio then left for the bank. When they arrived, it was almost 8:00 A. M. It was thus too late to effect the first step of the plan, viz, entering the bank as the manager opened the door. ‘They rode around for a while longer, and then went to 4 restaurant to get something to eat and 2. None of the appellants took the stand or offered any other evidence 3. Hodges’ testimony indicates that, in order to avert suspicion, Jackson would first hft the 560 FEDERAL REPORTER, 2d SERIES discuss their next move. After eating, the trio drove back to the bank. Allen and Hodges left the ear and walked over to the bank, They peered in and saw the bulky weekend deposits, but decided it was too y to rob the bank without an extra man. Consequently, Jackson, Hodges, and Allen rove to Coney Istand in search of another accomplice. In front of a housing project, fon 88rd Street they found appellant Wil- liam Seott, who promptly joined the team. Allen added to the arsenal another sawed- off shotgun obtained from one of the build- ings in the project, and the group drove back to the bank. When they arrived again, Allen entered the bank to check the loeation of any sur veillance cameras, while Jackson placed a piece of cardboard with a false license num- ber over the authentic license plate of the car? Allen reported back that a single surveillance camera was over the entrance door. After further discussion, Seott left the car and entered the bank. He came back and informed the group that the tell- fers were separating the weekend deposits and that a number of patrons were now in the bank. Hodges then suggested that they drop the plans for the robbery that day, and reschedule it for the following Monday, June 21. Accordingly, they left the vieinity ff the bank and returned to Coney Island where, before splitting up, they purchased a pair of stockings for Hodges to wear over her head as a disguise and pairs of gloves for Hodges, Scott, and Allen to don before entering the bank Hodges was arrested on Friday, June 18, 1976 on an unrelated bank robbery charge, and immediately began cooperating with the Government. After relating the events fon June 14, she told FBI agents that a robbery of the Manufacturers branch at 210, Flushing Avenue was now scheduled for the following Monday, June 21. The three black male robbers, according to Hodges, trunk or hood of the ear as though he were working under it before covering or uncovering the genuine license plates.