prove the use of a firearm during the course of trial could be a defense to the aggravated bank robbery charge and third and this is pretty really the most crucial it said the government would not argue to the jury that  instrument used in the bank robbery was anything other than a firearm mr benito's took the government at its word he relied on those assurances that stipulation was made  the guilty plea proceedings was it not he arrived in court with the intention of pleading guilty that day it was at fifty elation was before that right that that's correct your honor that's correct but it was never was drawn stipulations are just as binding in criminal cases as they are in civil cases and mr binney says predicated his entire theory of defense on the government's assurances that it would never come into court and argue to the jury that it was anything other than a firearm didn't didn't the defendant have reason to know though that the court was still up in the air on that issue i'm glad maybe that's a good way to put it that the court was still up in the air there was no definitive ruling at the by the district court regarding surplusage were guarding constructive amendment i have the rulings this is not a case like cancel the air where was the end of the during the during the more dire in the initial charge to the jury before the case started it was read to the jury then if you look at the verdict form the firearm language is taken out of the verdict  if they found him guilty without all the narrowing language to wit a firearm so it is like ancillary work where the language was omitted at the end of the ers the extra language heighten the mens rea but that's not the case here is it it's not the case here it's not a met it doesn't go to the mens rea it is more in that regard like the no rog case where it was there is this broad statutory language that's used and then there is a narrowing construction at the very end in iraq it was to wit meth amphetamine so they specified the controlled substance that they had possessed it was methamphetamine here they said to wit dangerous device was a firearm i had to ban arguably in narrow that was also heightening of the mens rea because the defendant had to know that it was math that's not true the all that was required to be proved in europe was that there was a controlled substance that they possessed at the pseudo and felony or that pseudoephedrine was going to be used to make a controlled substance that's all they statutorily had to prove so there was no if there was no count one required a firearm and just said dangerous weapon exactly that's my point and in the instructions went out with the jury right that's correct in writing and you objected to that because it allowed the one with a dangerous weapon but not a firearm that's exactly right and in fact if i could focus on the jury instruction here the part of the jury instruction that was most damaging is that the jury was instructed that quote the use of a dangerous weapon or device does not require proof that the dangerous weapon or device is actually capable of putting what the life of a person in jeopardy so negates his theory of defense is i want to go back to cancel here if i could for a minute because this court in various cases post counsel uri they said that it stands for the proposition that we're somebodies entire defense is predicated on the surplusage that even if it is surplusage that can still be a constructive amendment i'm not sure whether that makes doctrinally whether that makes sense to me that would be a prejudicial variance case because he's prejudiced by the variance but that's what he has kind of come to mean it's sort of an exception to the surplus inch doctrine so when someone predicates their entire defense as in cancel yury where was knowing you you  knew that the district kill the district kill it at the plea proceedings told you that you could plead to count one without pleading to the fact that it was a firearm and that should have told you that he thought it was surplusage and therefore it doesn't seem to me you can claim that you were surprised by what he did i disagree with you and let me explain why what the district court said is that however he will have to be able to establish all of the elements up to and including that the weapon used in the bank robbery was a dangerous weapon the district court went on to say i would suggest that counsel you consult with mr bennett is so that he understands that entering a plea to back to the bank robbery count and leaving just the possession of a firearm during the commission of the bank robbery is establishing a lot of the elements to that second offense not that it was a firearm but she didn't say one way or the other and look the government probably could have stood up in open court and waived the plea agreement around and essentially directed verdict on the second count there was no admission so there was an admission on the one way hey you know be careful because if you plead guilty to this it's establishing a lot of the elements of the second offense but there was no admonition on the other going the other way that if you take it to trial  they will be able to prove that it was a toilet and that's enough that's sufficient to convict him let me i think you have a strong case just frankly on the law without regard rog right directly on polly but it seems to me we have a lot of other cases that seem to be in tension with those namely those cases that say as to what exactly the prevailing rule is the rule that we would suggest and this is consistent with the rod is that changing the means of satisfying in element can be a constructive amendment if the jury is allowed to convict based on an uncharged set of facts that expands the basis for a conviction with respect to that element so in in iraq to wit methamphetamine that you have the broad statutory language and then you narrow it in kind of arrogant up upon yourself a higher burden of proof so to wit methamphetamine in weissman they said to wit whatever the crime family was do you can decouple concert crime family they could have just said a rico enterprise but they specified the exact one but to me it's indistinguishable from those cases this extra language and in addition to that that in addition to all that we have the stipulations from the government on the other side so to me this is a stronger case in all of those cases and i think that the there's really no way that the government can argue that it's not a concern about what happened here if if you were to prevail they'd very indict him and take out the farm right well that you know i'll leave that for the government and all but let's talk about the possibilities ok you've been acquitted on carrying the farm during the course of a possibility it's also a possibility he could just plead plead guilty to it it's also a possibility and we wouldn't really fight too hard if you accepted the government's idea i'm just worried about what your partner risk on going back but i'm just looking to see if there isn't  fourth that is the weapon the grand jury charged and that is the weapon the united states proved that gun that they need is held in his hand that he pointed at the bank employees that he threatened them with that caused them to believe that he would kill them if they didn't do what no constructive amendment of the indictment there for occurred because there was no danger that the news was convicted of a crime different than that was charging moreover based on the district court's ruling that weissman i mean what happened here is precisely the same thing that happened in iraq where you've got the general language and the nowra language and then the district go instruction takes the narrower language out and it's no that we have some cases that say that it's really the elements that count and not the surplus surplusage and that makes a lot of sense to me but it seems to me cases won't let us do that and even if they is some tension in our case is it seems to me that was satisfied by sand and the district code allowed the jury to satisfy their state commerce element but steel so it seems to me that elements it was interstate commerce that was the element so it seems to me star on stands for the proposition that it it doesn't have to do with the element that it doesn't have to change the element it just if you let the jury find a different means of satisfy an element that's a constructive amendment  context of armed bank robbery where the focus is on how the victims perceived and so while insta rhone these defended could have been convicted on facts that had never even been brought before the grand jury but the grand jury is only required to find probable cause to say that again a grand jury is only required to find possible cause to believe that the gun was a firearm and the same facts of the stablished in this case probably cause to believe becomes a firearm also establish probable cause to believe that was a replica firearm the video that was shown the testimony of the bank employees that they believed that this was a real firearm turning to no rog i don't believe that iraq stands for the proposition that any time of the grand jury charges that is the united states is required to prove that it is and i think that that is compelled by georgians more which the court said no rog is limited to the crime  circumstances of that case and it doesn't plainly extend to other circumstances such as in george when they charged a tourist pistol that was in the plane aragon right and  distinction i would point your honor to the fact that in iraq and weissman both cases the jury instructions mimic the language of the statue of the indictment and it was only in response to a jury sponsored jury question that it could be any controlled substance is what created the problem in iraq because that left open the possibility that the jury would have convicted of any controlled substance but here we know that the only  only dangerous weapons that he could have been convicted of was a real firearm or replica farm and i think the news concedes as much and so there's a difference between saying well he could have been convicted on believing that the pseudoephedrine would be used to create to manufacture any controlled substance cocaine who knows what who knows what would have been present to the grand jury and in this case saying he was only convicted of either a real firearm or replica firearm in the context of a bank robbery that makes no said you can plead guilty to armed bank robbery as long as you admit up to the dangerous weapon you don't have to admit the firearm and the ice is lost the argument that it made and sue the united states unlike a stipulation in which the united states might be bound to continue to hold to the stipulations you see isn't required to continue to advance arguments once that it isn't lost in the district court once the district court told them this language surplusage there was no reason to believe that they would have to continue to prove a firearm the district code actually use the word surplusage in the plea proceeding in the suit in the prepare seedings news argued that the language  the farms while she did not specifically use the word so i think that that was an implied ruling and in fact when this issue came up at trial the district court said and i think you'll recall that i found this language to be surpassed as a certainly does a district court felt that she had made that ruling and again after the district court made that ruling at the change of plea the united states a minute during proposed jury instructions and in those proposed jury instructions united states proposed the standard jury instruction for armed bank robbery with no mention of the firearm language at the what part in the trial that happened was it before or after he tested it was months before trial it was it was well submitted any of his own proposed instructions and news responded i think the united states proposed two hundred instructions are fine then at opening statement the prosecutor said these are the elements of armed bank robbery it requires threatening in assaulting and putting in fear with a dangerous weapon no mention of a firearm for the bank robbery cow no objection by mr binnie has no objection to mr  the united states concluded opening statement it wasn't until after the first day of trial that the news brought up this potential issue with the jury instruction so i would say that the seventy years was surprised that this wasn't the united states position he wasn't unfairly so went to the district court rule on the jury instruction issue at the close of trial she made a tentative ruling on the first day of trial said i think you'll recall this languages surplusage but then sort of said i'll reconsider and then at the close and she said i went back i looked at what i said before in fact i had said that this was surplusage and also there's this case diverse and therefore this is not an element that the united states had to prove so i'm going to give the standard like the court didn't definitive really rule on the issue then until after the close of evidence it didn't rule definitively on the jury instruction but it did rule definitively at the change of plea hearing that the language  so the jury instruction issues stem directly from that ruling that she had made at the request of mr benito as he was the one who wanted to plead guilty to count one without admitting that it was a firearm and the the district court made that ruling in a status congress that he could plead guilty and it wasn't until a month later that he came back and said no i've changed my mind i now want to go to trial the idea that he made that decision based on what the united states said even though that was several months before and there was this intervening ruling by the district court that this language was surpassed that the low end of the circuit about this constructive amendment some version of interstate commerce but at trial the approved different means of interstate commerce is a cell phone and they said look this is the same set of facts this is not a functionally different crime and therefore no constructive amendment an indictment let me let me ask you a hypothetical question one of the indictment had alleged that the dangerous weapon was a knife and the defendant's whole defense was that my fingerprints are on the knife it's the fingerprints of some other guy who has a history of bank robbery and then the government said at the end of the trial oh doesn't have to be a knife it could be any dangerous weapon what happened there would be one of sufficiency of the evidence problem because the only evidence is there's a knife and then the united states  offense which required the proving of a firearm so all the evidence the united states was introducing was that it was a firearm the only determination was was this a real farm or a replica fire which although that did have significance in the context of nine twenty four c and no significance in the context of a bank robbery which is a simply legally irrelevant fact it would be like if they allege that the dangerous weapon was read at trial they prove the dangerous weapon was pink that defense should be allowed to put on a defense and says well i should be convicted should have been acquitted because i should be able to argue that the weapon was pink and not red so for this reason this is not the kind of case that merits per se reversal variance why isn't it pretty clear that there was prejudice because it's pretty apparent to me that the jury found this was not a fire is apparent we don't know why the district the jury made the finding that it found and do you can always have inconsistent verdicts it could have been the case that the jury that someone on the jury google nine twenty four c and found out that it had a mandatory enhanced for the defendant wasn't unfairly surprised by it or shouldn't have and should have been surprised that you know is this is really the answer the question is you can be convicted of bank robbery if it's a toy weapon as long as it's perceived under the law dangerous weapon even if it's a toy if it's perceived by the victim as having been real that that's the argument of why there's no prejudice here because it wasn't inconsistent you can be convicted a tory weapon it can be a toy weapon ever i can agree it was a toy weapon they found it in the car i think we had a case one time to actually find a current was a toy welcome you still have i think robbery but because the victim perceived it so really the verdict here was quite consistent i think they thought it was a tory weapon or at least the government didn't prove it i think for the jury did they didn't prove beyond a reasonable doubt that it was a real gun that just want to tell us what it looks like they did and said it was tart but they convicted him of the first one is a tory weapon interpret i don't think the jury gets and what the sentence is and all that kind of i think they just thought the government improved for sure it was a real gun but again there was no prejudiced because he did admit every element of armed bank robbery and he admitted he had a tory weapon yeah that looked like a gun in the video i looked at th i've got a picture of the video it shows him it looks like gun may not have been a gun i have no idea but it sure looks like a big black gun and actually i compared that with a photograph of the daughter and there's markings on the gun that's different than the wand in the photograph or the fall of the daughter with her gun yeah yeah but  to just return back to what the government's in the change of plea you're in they said that it could be a defense to the aggravated form of robbery if it was not a firearm ok so this concept that even if first and that's number one number two they said and this is if this isn't a stipulation i don't know what is we would never come into court and argue before the jury that this was anything other than a firearm if that's not a stipulation i don't know what is i want to push back on this this concept that it was a definitive ruling it most certainly was not the word surplusage never came out of the judge's mouth the word constructive amendment never came out of the judge's mouth she just said i will accept your guilty plea and it wasn't even entirely clear to what extent the government would be able to use the indictment to essentially direct a verdict on the nine twenty four c count so and if the court has any doubt about that ruling which was completely ambiguous if the court has any doubt go and i would com the court's attention to look at what his opening statement was the government talked about what their opening statement was but his opening statement was if you if the jury finds that this was a replica and not a firearm then he's only guilty of the lesser included offense and the government didn't object they objected to something else in the in the opening statements but there was no objection there so when the going got tough at trial and mr benito got some traction with his expert witness that it wasn't going to be a it wasn't going to be proven that it was a firearm then and only then did the government tried to retract and back away from it stipulation and say oh actually it could be a toy technically under the law offense even saying it was simple bank robbery so this bank robbery with a dangerous device which we all agree it could be a toy as long as it incites inputs into fear that it could be a dangerous weapon in the eye of the person who's being threatened with we all agree about that and i couldn't contest that here in court but when the government as they say in their own words when we accept a higher burden of proof and we plead things with greater specificity than we need to then sometimes it works out and other times it doesn't work out well in this case they want to have it both ways yeah it works out when we block him from taking the plea but then i trial when they don't like it and he hires an expert and actually didn't block him from taking the point just court ruled against him and said you can play without admitting it being but they induced him to not take a plea by telling him it could be a defense at trial and that would never come into court because he he took the position that they could never prove that it was actually a firearm so setting aside whether or not the judge's ruling was definitive or not in my view it's completely ambiguous but he still could rely on those assurances and he plainly did look at his opening statement that's what his whole theory of defense was is if i prove that this is not a firearm that i'm only guilty he of simple bank robbery the district court and the government for that matter pulled the rug out from his entire defense vishy had the fairness of the proceedings and said well technically it could be a toy that's what they argued to the jury it could it could be a toy and he could still be convicted of the bank robbery charge so there's no way in the world this is not either a a constructive amendment or be a very prejudicial variance because the god of his entire theory of defense now i want to say something about the remedy question but if they had said in the indictment a dangerous device there is no obligation for them to plead that it's a firearm but in this case they pled that it was a firearm and his entire theory of defense was predicated on