United States v. Neal Martin Bain (9th Cir. June 2019)

The Federal Docket

August 25, 2019

Guilty Pleas/Elements of Armed Robbery – It was plain error for the district court to accept the defendant’s plea to armed robbery based on his placing a closed pocket knife on the bank teller’s counter while pulling a plastic bag out of his pocket, as this did not constitute “use of a deadly weapon.”

The defendant appealed his conviction after pleading guilty to armed bank robbery, arguing that the district court plainly erred by accepting his plea without a sufficient factual basis. The defendant argued that his actions during the robbery, which included placing a closed pocket knife on the bank teller’s counter while pulling a plastic bag out of his pocket did not constitute the “use of a deadly weapon” as required to prove armed bank robbery under 18 U.S.C. § 2113(d).

The Court agreed that the district court committed “plain error.” The Court gave significant weight to the fact that the defendant never opened the knife during the robbery, exposed its blade, or ever threatened to use it. There was no evidence that the defendant intended to cause fear or intimidation or to disprove his that he inadvertently took the knife out of his pocket while looking for the plastic bag.

These facts did not rise to the level of “putting in jeopardy the life of any person by the use of a dangerous weapon,” especially given Ninth Circuit precedent where inadvertently displaying a firearm during a bank robbery is not sufficient for a conviction of armed bank robbery. Rather, the Court held, there must be “active employment” of a dangerous weapon, or at least an “obvious and forceful” display of the firearm in cases where the firearm is merely placed on a table.

Not only was this error, but this error was “plain.” In fact, the magistrate judge had refused to enter the plea for armed bank robbery at the first change-of-plea hearing and expressed hesitance at the second before entering the plea. The defendant only admitted in his colloquy that he placed a “closed pocket knife on the counter.” The court’s error substantially affected the defendant’s rights too, given that he was unaware that the facts he admitted were insufficient to meet the elements of the offense he was pleading to.

Appeal from the District of Arizona

Opinion by Tashima, joined by Smith and Piersol (by designation from D.S.D.)

Click to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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