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United States v. Bain

United States Court of Appeals, Ninth Circuit

June 11, 2019

United States of America, Plaintiff-Appellee,
v.
Neal Martin Bain, Defendant-Appellant.

          Argued and Submitted November 16, 2018 San Francisco, California

          Appeal 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

          Tonya Jill Peterson (argued), Law Office of Tonya J. Peterson, Phoenix, Arizona, for Defendant-Appellant.

          Andrew 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 Plaintiff-Appellee.

          Before A. Wallace Tashima and Milan D. Smith, Jr., Circuit Judges, and Lawrence L. Piersol, [*] District Judge.

         SUMMARY [**]

         Criminal Law

         The panel reversed a conviction for armed bank robbery, vacated a sentence, and remanded for further proceedings.

         The 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 error.

          OPINION

          TASHIMA, Circuit Judge.

         Defendant 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.

         BACKGROUND

         In 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).

         At 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 robbery."

         At 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.

         At the 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 ...


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