by Anthony Accurso

The U.S. Court of Appeals for the Ninth Circuit held that inadvertently placing a pocket knife on the counter during a robbery did not constitute “use” of a dangerous weapon during a robbery and overturned the defendant’s plea for lacking the proper factual basis to support his guilty plea for armed bank robbery. 

Neal Martin Bain was a heroin addict who committed three bank robberies in 2014 to support his drug habit. During the robbery of Tempe MidFirst Bank in Arizona, he took out a closed folding knife and placed it on the teller counter while attempting to produce a bag into which he then instructed the teller to put the money. He “never opened the knife, i.e., exposed the blade, or threatened to use it.” He claimed that he inadvertently removed the knife from his pocket while getting out the bag and that he “had no intention of causing fear or intimidating the teller with the knife….” 

Bain pleaded guilty to two counts of bank robbery (for robbing two other banks without a knife), but difficulties arose when he attempted to plead guilty to the armed bank robbery of Tempe MidFirst Bank. The Magistrate referred to the language of the Ninth Circuit’s model jury instruction that states in relevant part: “the defendant intentionally made a display of force that reasonably caused [name of victim] to fear bodily harm by using a [specify a dangerous weapon or device].” Based on this language, the court accepted Bain’s plea. 

On appeal, Bain argued the court violated Fed. R. Crim. P. 11(b)(3) by accepting his plea despite not matching the language of the statute, which requires that he “[put] in jeopardy the life of any person by the use of a dangerous weapon or device.” The Government argued that under Baily v. United States, 516 U.S. 137 (1995), “the silent but obvious and forceful presence of a gun on a table can be a use” and that Bain’s laying the unopen pocket knife on the counter was no different.

The Court disagreed, likening the case more to United States v. Odom, 329 F.3d 1032 (9th Cir. 2003). In Odom, the court decided that the defendant did not commit armed bank robbery where the display of his gun was obviously unintentional, and he was possibly even unaware he had done so. The record supported this interpretation because there was no evidence the teller was even aware that Bain had a knife. 

The Court further determined that Bain likely would have gone to trial had the district court not accepted his faulty plea because Bain “consistently and adamantly claimed that the knife was not meant for the robbery and that he did not intend to take it out of his pocket.” Thus, the district court’s error was plain and affected Bain’s substantial rights. Accordingly, the Court reversed Bain’s conviction for armed bank robbery because the factual basis of his plea was insufficient. See: United States v. Bain, 925 F.3d 1172 (9th Cir. 2019). 

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