FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

NEAL MARTIN BAIN,

Defendant-Appellant.

No. 17-10107

D.C. No.

CR 14-1167 GMS

OPINION

Appeal from the United States District Court

for the District of Arizona

G. Murray Snow, Chief District Judge, Presiding

Argued and Submitted November 16, 2018

San Francisco, California

Filed June 11, 2019

Before: A. Wallace Tashima and Milan D. Smith, Jr.,

Circuit Judges, and Lawrence L. Piersol,* District Judge.

Opinion by Judge Tashima

* The Honorable Lawrence L. Piersol, United States District Judge for

the District of South Dakota, sitting by designation.
2 UNITED STATES V. BAIN

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.

COUNSEL

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.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. BAIN 3

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
4 UNITED STATES V. BAIN

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
UNITED STATES V. BAIN 5

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 counsel

agreed that there was “enough” in the factual basis.1 The

magistrate judge then turned to Bain, and Bain expressed

confusion about what had just occurred in the proceedings:

“THE COURT: So Mr. Bain, now to you. 

All this lawyer talk.

THE DEFENDANT: Boy. It’s perplexing.”

The court read the proposed factual basis to Bain, and he

agreed to it:

“THE COURT: [The factual basis says] you

then stated you wanted all of the hundreds

from the bottom drawer and placed a plastic

shopping bag and a closed pocket knife on the

counter. Is this true?

THE DEFENDANT: Yes, Your Honor.”

1 The Ninth Circuit model jury instruction states, in relevant part: 

“[the defendant intentionally [[struck or wounded [name of victim]] [made

a display of force that reasonably caused [name of victim] to fear bodily

harm] by using a [specify dangerous weapon or device].” 9th Cir. Crim.

Jury Instr. 8.162: Bank Robbery.
6 UNITED STATES V. BAIN

The magistrate judge asked Bain no other questions about the

knife and made no additional findings regardingwhether Bain

put the bank teller’s life in jeopardy by the use of a dangerous

weapon. Concluding the hearing, the magistrate judge said,

“it certainly seems to meet the – facts seem to meet the

elements of the Ninth Circuit jury instruction on this

offense.” The magistrate judge then recommended that

Bain’s guilty plea to Count 2 be accepted by the district court,

which the district court did.

When Bain was given an opportunity to speak at his

sentencing hearing in front of the district judge, Bain

immediately addressed the issue of the knife on the bank

counter. Bain explained how he believed he needed the knife

for self-protection because he was living on the streets, and

said, “thank God I never had to use a weapon against

anybody.” He then discussed the bank robbery itself and

insisted that he never brandished the knife or tried to use it

during the robbery:

When I took the bag out – normally, I

would put the money down my shirt. Like in

the Washington Federal robbery I put the

money down my shirt. In this particular bank

I had a bag and it was in my pocket. I took

the bag out. The knife was in the same

pocket. I put it down because my adrenaline

– ‘cause what I’m doing is I’m not – I’m not

concentrating on doing it.

The employees in the bank, one of the

tellers wasn’t even aware of the knife. The

one teller said I put it on there but made no

display with it. And I tell you today, Your
UNITED STATES V. BAIN 7

Honor, that that weapon wasn’t there for

commission of the robbery.

If you’ll remember, my last bank robbery

[in 1996] was with a pellet gun. And if that –

that’s an intimidating factor, I imagine,

brandishing a pellet gun, because it could be

considered a real weapon. I didn’t brandish

the knife. I simply took it out to obtain the

bag. It was right in the same spot at the same

time. It was – it was – I didn’t unfold it, it

was still folded, and that’s the truth of the

matter, Your Honor.

The district court then sentenced Bain to 137 months of

imprisonment for Counts 1 and 3, and 197 months of

imprisonment for Count 2, with all counts to run

concurrently.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. When a

defendant raises an issue on appeal that was not raised before

the district court, such as the lack of a factual basis for a

guilty plea under Rule 11, our review is limited to plain

error.2See Fed. R. Crim. P. 52(a)–(b); United States v.

Monzon, 429 F.3d 1268, 1271 (9th Cir. 2005). In assessing

the effect of a Rule 11 error, we must look to the entire record

and not to the plea proceedings alone. Id. The error requires

reversal only if it affected the defendant’s substantial rights.

2

“Plain error is ‘(1) error, (2) that is plain, and (3) affects substantial

rights.’” United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005)

(citation omitted).
8 UNITED STATES V. BAIN

Id. We exercise our discretion to correct the error only if it

“seriously affects the fairness, integrity or public reputation

of judicial proceedings.” United States v. Olano, 507 U.S.

725, 732 (1993).

DISCUSSION

I. The factual basis requirement of Rule 11

Before accepting and entering judgment on a guilty plea,

the district court must determine that there is a factual basis

for the plea. Fed. R. Crim. P. 11(b)(3). Bain challenges only

the factual basis for his plea to the “armed” element of

Count 2. 18 U.S.C. § 2113(d) reads: “Whoever, in

committing, or in attempting to commit, any offense defined

in subsections (a) and (b) of this section, assaults any person,

or puts in jeopardy the life of any person by the use of a

dangerous weapon or device, shall be . . . imprisoned not

more than twenty-five years.” (emphasis added). The

government concedes, as stated in its Appellee’s Brief, that

“The parties all agreed at the change of the plea hearing that

the ‘assault’ portion of the statute did not apply in this

matter.” Therefore, the only issue before this Court is

whether there was a sufficient factual basis to meet the

statutory requirement of “puts in jeopardy the life of any

person by the use of a dangerous weapon or device.” More

specifically, we focus on what constitutes the “use” of a

dangerous weapon during a bank robbery.

II. The district court committed plain error.

Under our precedent, Bain did not use a dangerous

weapon during the bank robbery. In an early case, we held

that for aggravated robbery, the weapon must be used such
UNITED STATES V. BAIN 9

that “the life of the person being robbed is placed in an

objective sta[t]e of danger.” Wagner v. United States,

264 F.2d 524, 530 (9th Cir. 1959). There, we found sufficient

use of a weapon where the robber pressed the gun to the

victim’s side “with such force that it ripped his shirt.” Id.

at 531. Later, in United States v. Coulter, 474 F.2d 1004,

1005 (9th Cir. 1973), we imputed Wagner’s “objective state

of danger” standard to § 2113(d)’s “put[ting] in jeopardy the

life of any person” element, which is at issue here.

In United States v. Odom, we held that “a bank robber

with a concealed gun who never mentions or insinuates

having one, but who displays it inadvertently [cannot] be

convicted of armed bank robbery.” 329 F.3d 1032, 1033 (9th

Cir. 2003). We further held that the “use” of a weapon under

§ 2113(d) requires some type of “active employment” of the

weapon. Id. (citing Bailey v. United States, 516 U.S. 137,

148 (1995), superseded by statute on other grounds as

explained in Welch v. United States, 136 S. Ct. 1257, 1267

(2016)). In that case, Odom robbed a bank while he had a

gun tucked in his waistband. He used a pillowcase to carry

out the stolen money and when he put the pillowcase back in

his jacket he inadvertently displayed his gun to the bank’s

branch manager. Id. at 1036. The testimony of the branch

manager did not indicate that Odom meant to display the gun

to her or that Odom was even aware that he had displayed it. 

Id. And we noted, “it seems unlikely that if he meant to

actively employ the gun during the robbery, he would have

waited until the end, after he had been given the money and

was about to depart, before doing so.” Id. Therefore, we held

that Odom did not actively employ a weapon in accordance

with the “use” requirement of § 2113(d), and reversed his

conviction. In a review of decisions affirming convictions

under § 2113(d), the Odom court found the “common
10 UNITED STATES V. BAIN

denominator” to be “that the robber knowingly made one or

more victims at the scene of the robbery aware that he had a

gun, real or not.” Id. at 1035.

Here, Bain’s inadvertent placement of the closed pocket

knife on the counter similarly did not constitute “active

employment” of the knife. See id. at 1033. During the

robbery, Bain removed from his pocket a plastic bag for

carrying the money. As he removed the bag, he also pulled

out a closed pocket knife from the same pocket and placed

the closed knife on the counter. He never brandished or

mentioned the existence of the knife to the teller. Like in

Odom, Bain inadvertently showed his weapon to the teller

when his attention was focused elsewhere. Moreover, in both

cases the defendant never mentioned that he had a weapon or

referred to it in the course of the robbery. Id. at 1036. Bain

also did not appear to realize that he was showing the weapon

to the teller as he removed it from his pocket. Therefore, as

in Odom, we conclude that Bain did not “knowingly ma[k]e

one or more victims at the scene of the robbery aware that he

had a [weapon], real or not.” Id. at 1035.

The government cites Bailey to argue that placing a knife

on a counter constitutes a “use” of a weapon under § 2113(d). 

In Bailey, the Supreme Court held that “[t]he activeemployment understanding of ‘use’ certainly includes

brandishing, displaying, bartering, striking with, and, most

obviously, firing or attempting to fire a firearm.” 516 U.S. at

148. Furthermore, “[a] reference to a firearm calculated to

bring about a change in the circumstances of the predicate

offense is a ‘use,’ just as the silent but obvious and forceful

presence of a gun on a table can be a ‘use.’ ” Id. But the

words “obvious and forceful” and “can” are key to the

Supreme Court’s hypothetical. These words illustrate that
UNITED STATES V. BAIN 11

context is critical in determining whether the silent presence

of a weapon constitutes active employment. It is not merely

the presence of the gun but rather the “obvious and forceful”

presence of the gun that can (but does not necessarily)

support a finding that a gun was used. Therefore, whether the

silent presence of a weapon constitutes a “use” under

§ 2113(d) needs to be decided on a case-by-case basis. Here,

Bain’s pocket knife on the bank counter does not carry the

same “obvious and forceful” weight as the gun in the

Supreme Court’s hypothetical. The pocket knife remained

closed and Bain did nothing to call attention to its presence;

there is no evidence that the second teller at the bank even

realized at the time of the robbery that there was a knife on

the counter.3 Thus, the silent presence of the knife on the

bank counter was not “obvious and forceful,” and Bailey does

not compel a finding that Bain’s knife was “used” in the bank

robbery. 516 U.S. at 148.

We therefore hold that Bain’s inadvertent placement of a

closed pocket knife on the bank counter did not “put[] in

jeopardy the life of any person by the use of a dangerous

weapon or device.” See 18 U.S.C. § 2113(d). Because there

was not a sufficient factual basis to establish that Bain

committed armed bank robbery, it was plain error to enter

judgment on this guilty plea. See Fed. R. Crim. P. 11(b)(3);

United States v. Bingham, 497 F.3d 665, 669 (9th Cir. 2006)

(“For error to qualify as ‘plain,’ it must be clear-cut, so

obvious, a competent district judge should be able to avoid it

without benefit of objection.”).

3

 The record does not disclose the length of the knife or its blade.
12 UNITED STATES V. BAIN

III. The error affected Bain’s substantial rights.

In order to show that a plain error affects substantial

rights, the defendant “must show a reasonable probability

that, but for the error, he would not have entered the plea,”

which would be “sufficient to undermine confidence in the

outcome of the proceeding.” Monzon, 429 F.3d at 1272. 

“The reasonable-probability standard is not the same as, and

should not be confused with, a requirement that a defendant

prove by a preponderance of the evidence that but for error

things would have been different.” Id. In Monzon, the

defendant pleaded guilty to possession of a firearm in

furtherance of a drug trafficking crime. Id. at 1269. But

there was an absence of evidence showing that Monzon

intended to possess his gun “in furtherance” of his drug

trafficking crime, and Monzon “specifically objected when

the district court asked him if he in fact possessed the gun in

part to protect the drugs.” Id at 1273. The record also

appeared to show that Monzon was unaware that the amended

statement of facts he agreed to was insufficient to support the

“in furtherance” element of the crime. Id. Therefore, it was

reasonably probable that Monzon would have proceeded to

trial on the gun-related charge absent the Rule 11 error. Id.

Bain’s case is very similar to Monzon because Bain

appeared to be unaware that the facts he agreed to were

insufficient to establish a required element of § 2113(d). 

Throughout this case, including at sentencing and in the

Presentence Investigation Report, Bain has consistently and

adamantly claimed that the knife was not meant for the

robbery and that he did not intend to take the knife out of his

pocket. Bain also has confirmed that he did not brandish the

knife or even mention its presence to the teller. At his plea

hearing, Bain stated on the record that he found the
UNITED STATES V. BAIN 13

discussion over the proper factual basis to be “perplexing,” so

he was likely unaware that there was an absence of evidence

to support a conviction under § 2113(d). Taken together,

these circumstances show that the Rule 11 error “likely

affected [Bain’s] assessment of his strategic position.” See

Monzon, 429 F.3d at 1272. It also shows that it was

reasonably probable that Bain would have gone to trial on the

§ 2113(d) charge absent the Rule 11 error. Thus, the plain

error affected Bain’s substantial rights and the fairness and

integrity of the judicial proceedings.4

CONCLUSION

We hold that the district court committed plain error in

accepting Bain’s guilty plea to Count 2. Bain’s inadvertent

placement of a closed pocket knife on the bank’s counter did

not constitute the “use” of a dangerous weapon. We also hold

that the plain error affected Bain’s substantial rights because

it is reasonably probable that Bain would not have pleaded

guilty to Count 2, but for the Rule 11 error. We therefore,

reverse Bain’s conviction for armed bank robbery (Count 2),

vacate his entire sentence, and remand for further proceedings

consistent with this opinion.

5

See United States v. Davis,

854 F.3d 601, 606 (9th Cir. 2017) (“When a defendant is

sentenced on multiple counts and one of them is later vacated

on appeal, the sentencing package comes unbundled. Under

4 Additionally, we note that Bain was sentenced to a 60-months

greater sentence on the armed count, than on the unarmed counts – 197

months’ imprisonment, rather than 137 months’ imprisonment.

5 Because we vacate Bain’s sentence on the above ground, we do not

reach his remaining contentions that his sentence was both substantively

and procedurally unreasonable.
14 UNITED STATES V. BAIN

these circumstances, vacating the sentence is required in

order to allow the district court to put together a new package

reflecting its considered judgment as to the punishment the

defendant deserves for the crimes of which he remains

convicted.” (citations, internal quotation marks, and

alterations omitted)).6

REVERSED in part, sentence VACATED, and

REMANDED.

6 Because, presumably, jeopardy has not attached, the government

may elect to take Count 2 to trial, reduce the Count 2 charge to unarmed

bank robbery, or simply dismiss Count 2. Under any of these scenarios,

Bain will have to be resentenced.