and Submitted November 16, 2018 San Francisco, California
from the United States District Court for the District of
Arizona G. Murray Snow, Chief District Judge, Presiding D.C.
No. CR 14-1167 GMS
Jill Peterson (argued), Law Office of Tonya J. Peterson,
Phoenix, Arizona, for Defendant-Appellant.
C. Stone (argued), Assistant United States Attorney; Krissa
M. Lanham, Deputy Appellate Chief; Elizabeth A. Strange,
First Assistant United States Attorney; United States
Attorney's Office, Phoenix, Arizona; for
A. Wallace Tashima and Milan D. Smith, Jr., Circuit Judges,
and Lawrence L. Piersol, [*] District Judge.
panel reversed a conviction for armed bank robbery, vacated a
sentence, and remanded for further proceedings.
panel held that the defendant's inadvertent placement of
a closed pocket knife on the bank counter did not constitute
the "use" of a dangerous weapon under 18 U.S.C.
§ 2113(d); and the district court therefore committed
plain error under Fed. R. Crim. P. 11(b)(3) by accepting,
without a sufficient factual basis, the defendant's
guilty plea to armed bank robbery. The panel held that the
plain error affected the defendant's substantial rights
because it is reasonably probable that the defendant would
not have pleaded guilty to that count, but for the Rule 11
TASHIMA, Circuit Judge.
Neal Bain pleaded guilty to committing armed bank robbery. On
appeal, Bain contends that the district court violated
Federal Rule of Criminal Procedure 11(b)(3) by entering
judgment on Bain's guilty plea without a sufficient
factual basis for the plea. During the robbery, which Bain
admitted committing, Bain inadvertently placed a closed
pocket knife on the bank's counter while pulling a
plastic bag out of his pocket. We hold that this action did
not "put in jeopardy the life of any person by the use
of a dangerous weapon," which is a requirement for armed
bank robbery under 18 U.S.C. § 2113(d). Because the
district court committed plain error in accepting Bain's
guilty plea without a sufficient factual basis, and the error
affected Bain's substantial rights, we reverse Bain's
conviction for armed bank robbery, vacate his sentence, and
remand for further proceedings.
2014, Bain committed a series of bank robberies in order to
support his heroin addiction. Without the benefit of a plea
agreement, he pleaded guilty to two counts of bank robbery in
violation of 18 U.S.C. § 2113(a) (Counts 1 and 3), and
one count of armed bank robbery in violation of 18 U.S.C.
§ 2113(a) and (d) (Count 2).
issue in this appeal is the sufficiency of the evidence for
his guilty plea as to Count 2. Bain admits to committing the
robbery, but he disputes that it was an armed robbery. On
July 2, 2014, Bain entered the Tempe MidFirst Bank, walked up
to a teller, demanded all of the money from the bottom
drawer, and kept demanding $100 bills. He then pulled a
closed folding knife and a plastic bag out of his pocket and
placed the knife on the counter. Bain never opened the knife,
i.e., exposed the blade, or threatened to use it.
Bain then put the money in the plastic bag and left the bank
with $11, 115. Bain claims that he pulled out his pocket
knife inadvertently while retrieving the plastic bag from the
same pocket. He claims that he had no intention of causing
fear or intimidating the teller with the knife, and that the
knife "wasn't there for commission of the
first change of plea hearing on June 21, 2016, Bain pleaded
guilty to Counts 1 and 3, but the hearing stalled when the
discussion turned to Count 2. After some discussion of the
elements of armed bank robbery and the factual basis for
Bain's guilty plea to this count, the magistrate judge
said: "I'm not sure that there is a sufficient
factual basis to recommend the guilty plea to Count 2 be
accepted, because according to the parties' agreement,
the proof would have to be that he assaulted and put in
jeopardy the life of [the teller] by the use of a dangerous
weapon or device, that is, a knife. I'm not sure placing
a closed knife on the counter is an assault or would
constitute putting in jeopardy the life of [the
teller]." Ultimately, the magistrate judge did not
accept a guilty plea to Count 2 at this hearing.
second change of plea hearing on August 4, 2016, the hearing
again stalled on the topic of the required factual basis for
a guilty plea to armed bank robbery. After reviewing the
factual bases proposed by Bain and the government, the
magistrate judge said that the proposed factual basis did not
"meet the elements required by the statute or the jury
instruction. So I'm not sure why we're here."
Bain's counsel later asked, "so are you saying that
the defendant's proposed factual basis in this request
for change of plea hearing on Count 2 is not
sufficient?" and the magistrate judge replied, "I
don't think so." However, after re-reading the Ninth
Circuit model jury instruction for armed bank robbery, the
magistrate judge accepted the proposed factual basis, and
both the government and Bain's ...