welcome to the ninth circuit judge so she and i are honored to have our colleague judge lawrence pierce all from the district of south dakota sitting with us by designation today we have a very full calendar this morning  no submitted cases and five argued cases the first of which is united states versus bane so counsel if your coach the podium good morning may please the court my name is tonya peterson and i represent the appellant neil martin bayne time permitting i'd like to reserve two minutes for about a leap and i'll try to help you think your honor this case is about the fourth element of armed bank robbery this is the same element that the magistrate judge and counsel for both parties entirely dispensed with at the change of plea proceeding the second change of plea proceeding this is the same element that appellant pointedly and pinnings of rule eleven the need for a sufficient factual basis and the need for the defendant to be thoroughly and completely and clearly advised of each of the elements of the offense to which he is pleading guilty they are  interrelated and both come into play in this case because in this case the magistrate judge did at one point in time during the initial change of plea proceeding accurately advise appellant regarding the fourth element that is that the government would be required to prove that in committing a bank robbery he in fact assaulted the judge the magistrate judge used the term and put in jeopardy the life of any any person can want what role does what your client's counsel said play it you're your client originally refuse the government's request that he had put someone in fear and so on because the second iteration it was what we ended up with and all oh he seemed a little reluctant the lawyer seemed to agree did he have the ability to if you will acquiesce for mr bayne no your honor not without asking mr being himself i don't believe the lawyer did have the ability to acquiesce on his you have any case law that would substantiate that no i do not as i stand here right now what difference does it make even if you ask his client i've taken thousands of guilty pleas it's w unequivocal expression of declining refusing or however you want to put it so admitted that element has that was on the record since well before the second change of plea proceeding so particularly in that context i don't think that something that the lawyer says at the change of plea proceeding can't erase that i also don't know that the wreckers entirely clear that the lawyer specifically acquiesced in the finding that that element had been proven at the second change plea proceeding perhaps by so wh in terms of the result of this proceeding your honor right and if you go back to you've tried i mean he's somebody to another sentencing absolutely your honor he's either if the really this granted that we're requesting in this court vacates his conviction bank robbery and be sentenced on that or stand on his plea of not guilty and go to trial our position is on the facts of this case mr paine couldn't fact go to trial conceivably be found guilty of armed bank robbery versus what the victim if you will in this case the bank teller felt if we go on the basis of what your client intended doesn't that permit a defendant to essentially game the system your client was convicted of multiple bank robberies in earlier times it don't count for the sentencing but bottom line he's a really experienced bank robber and he the teller said he or she was frightened your your honor on the factual basis for the for the plea certainly his stated intention is comes into play all the other circumstances this is the difficulty when we're coming up on appeal in a limited record and there's been no trial so there's been no full airing of the circumstances necessarily there was an indication in the record by a pilot's counsel at the time of sentencing or near the time of sentencing that there were other tellers present who weren't even aware the knife was there i think all of that well certainly we're just not i think you're complaining two different things don't you think the element of whether i guess for bank robbery is one element is that those use of force f or intimidation right correct and what that but to add the armed allegation is an entirely different element and that's  in part on which problem of the fourth element we're going under if we're going under the assault element it's our position well met with this case tried and our position is that is not under i'm not tried but you know the plea taken under our position was that it wasn't taken under either that there was no provided by defense counsel to that and she asked mr bean whether he put the knife on the counter with the plastic bag and he said yes those are the facts that we know that he admitted to from the  issue here is whether you can extract from those facts a conclusive finding that they then demonstrate that through the use of a dangerous weapon he either intentionally placed the teller in fear under the assault pronk or judge i think that's a closer question but i think also it comes back to what the defendant admitted if i can as i stand here think of a circumstance offhand where the defendant would say yes i i pulled this gun out with this bag not meaning to do anything with the gun but certainly the objective reasonable no so the but the victim tellers fear or being placed in a state of danger i think there are gradations and it would be a stronger case if it had been a gun rather than a close pocket knife on the savior and there yes thank you very much on good morning and your stone for the government may please the court question on whether or not there was sufficient factual record here to find that the defendant was guilty of armed bank robbery it's clear that the answer is yes and i think we need to be  prong for this armed bank robbery there are three elements that need to be proven beyond a reasonable doubt and that is use of a dangerous weapon that placed the victim in an objective state of the danger so those are the three elements that need need to be shown through the factual basis here and in looking at this court's cases and analyzing a number of armed bank robbery convictions in affirming most of them it's clear that the answer is yes because under the use category or the you selling it which is the first of the three elements there's case law both in the supreme court in this court that says just displaying of the weapon is enough for use and that's matter what kind of weapon it is and ask opposing counsel about a gun but in this case he had a closed pocket knife he said he put it up there with the bag because he always carries it he's almost first he carries it with him for defense and he just happened to be there he would not sign a wooden agreed to any part of a plea that where he understood he had put the teller in fear so isn't there a difference between a closed pocket knife and say would that be a display so that the case law under odom and this court suggested that when a gun was in the robbers waistband and he never displayed it never discussed it then it was not use but this court made clear in that case what is the common denominator for all of the cases that have been affirmed of the common denominator is that the robber knowingly made one or more victims aware he had a weapon and so the question did he do it knowingly or did he do it after that under the under the facts  said yes i knowingly put the block and i found the gun you know as as of the factual basis reid says that the knife was in his pocket he took the bag out and he took the knife and he placed the knife on top of the bag and by the way you know i couldn't play in the long pocket knife yes furtively dangerous weapon for two independent reasons you're on a first in smith and this decision that this case decided under different statute talks about inherently dangerous weapons and that includes guns knives and the like now if the answer is well pocket knife is different than an inherently dangerous weapon it's still considered dangerous under martnez a minute's in martina's for minutes is a case decided by the ninth circuit which said if a plastic gun which the robber held down by his side and in and attempted to not show the patrons in the employees of the bank that's why he held down a side that was enough to affirm an armed bank robbery conviction and it's because of one of three reasons here in your best case which had a road flare where he said it was a stick of dynamite those are both items that could not have harmed anyone whereas a pocket knife could actually harm someone but even if it wasn't actually the different cases that you know because they go to  because you know it could fool an ordinary person to believe it is real but still the case as you said are not the same as you know a small pocket i think and what your case that there's an open small pocket knife put on the counter is a dangerous weapon but it's not the case that's on all fours with a small case right on point that says that a small pocket under the exact same facts in this case know exactly in fact just you know a small pot and involves just play with small pocket knife i don't have a case that says a small pocket sufficiency in terms under the statute that's because little plastic gun versus real gun you can't tell the difference when they're holding it that's different true your honor but it a knife is still a knife which has been found to be inherently dangerous it's manufactured to harm people and it also when it is used in the commission of a bank robbery keep in mind he's lane over the counter that was one of the facts that was emitted he's directing the bank tellers don't take the money out of the top drawer take it out of the bottom drawer he's telling other bank tellers to to get the money this isn't like i if i had a pocket knife right here while i'm speaking to you which may not be dangerous but this is in the middle of a bank robbery that's what the case law says it says is that when you have a weapon like this it's subject to victims to greater apprehension it makes it so that law enforcement will have a more deliberate plan because there is a reasonable use that there could be harm to human life and there's also the potential that there is a reasonable response by police will include deadly force and so that's why the number of cases that find weapons that that can't do any harm the plastic gun the road road flare things like that have been found to be enough to be sufficient for an armed bank robbery council i want to change a little bit we've got a lot of things in this case to talk about not much time the everybody seems to agree that a lower case law is not clear on this that if the government fails to  plead the agreement in the plea agreement not to appeal that that's waived but what is not where our case law i don't think is whether the district judge has the right to a sponsor a even though the government has not raised the appeal issue that the court has the right to raise it on its own would you address that please what's your best authority for the idea that the court the district court on its own could raise the appeal waiver if the government had not done so well this again was a plea that was straight straight up to the court and not under a plea agreement so there was no agreement that was governing the rights of the parties here so i think that because there was no appellate waiver then were and that's what i'm talking about you're saying there was no if i can may address briefly the issue of the plea agreement i believe that what may have engendered some of the confusion in the record is in the record there is a document entitled plea agreement that was never actually entered in court that was a document that the government's counsel at the time us not in this particular case your honor no i'd like to return just briefly to the issue of the small pocket knife and whether whether that's a dangerous weapon under the case law in the same sense that some of the other cases that the government has cited course we don't know from the small po not we do not your honor we do not i'll just refer to a pocket knife in general regardless of size the government council is correct i don't know of any case on in this circuit or or even elsewhere that specifically addresses th t point other than we cited in our reply brief i believe this court's admittedly somewhat dated decision in you know you know ass in which the court indicated that depending on the circumstances in which it is used a pocket knife can be a dangerous weapon but did not say that categorically or per se it is again it was tethered to the circumstances of use and that particular case has not been overruled nor  been specifically abrogated or modified in light of some of the more recent cases that the government has cited in its answering brief and if there are no further questions thank you i think thank you both for your argument case has just argue