Sunday, June 16, 2019

Case o' The Week: Error Plain Here Government's Bain -- Bain, Rule 11 Plea requirements, and Armed Bank Robbery

 A closed knife just won't cut it.
United States v. Bain, 2019 WL 2426145 (9th Cir. June 11, 2019), decision available here.

 Players: Decision by Judge Tashima, joined by Judge M. Smith and DJ Piersol.  

 Facts: Bain, a heroin addict, robbed several banks without a weapon. Id. at *1. At the last bank, he accidentally pulled a closed pocket knife from his pocket, along with a plastic bag for the loot. Id. 
  (Bain later explained he did not intend to cause fear or intimidate the teller with the knife. Id.)
  Bain plead open to unarmed and (for the bank with the knife) armed bank robbery. Id. The defense didn’t object to the sufficiency of the plea for the armed robbery count. Id. 
  Bain was sentenced to 197 months on the armed robbery count, and 137 months (concurrent) on the unarmed robbery counts. Id. at *2.

Issue(s): “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.” Id. at *1.
  “[T]he 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.” Id. at *3.

Held: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.” Id. at *1.

Of Note: Judge Tashima explains that on these facts, the “silent presence of a knife on the counter” was not “obvious and forceful,” so the knife wasn’t “used” for the robbery. There was not, therefore, a sufficient factual basis for the plea. Id. at *4.
   So, does that count now go away? 
  Sadly, no: the Ninth presumes that jeopardy has not attached. The government can take that count to trial, reduce it to an unarmed bank robbery charge, or dismiss it. Id. at *5 & n.6. 
  Query how a trial on this charge would survive a Rule 29 motion, if these facts didn’t cut Rule 11 mustard for the Ninth? Maybe a jury would disbelieve Bain’s account about the knife – although tough to imagine how the government would thread this element’s needle, after this decision by the Ninth.

How to Use: There are two interesting appellate nuggets in Bain. First, Judge Tashima engages in a helpful “substantial rights” analysis as part of the “plain error” issue. Id. at *4. He concludes that, but for this Rule 11 mistake, Bain would have gone to trial – so he earns a plain error reversal for this Rule 11(b)(3) problem. Id.
  Bain is also helpful for the idea that sentences become “unbundled” when one count is reversed, requiring an entirely new sentencing package on remand. Id. at *5.
For Further Reading: Last week, Judge Carlos Bea announced his plans take senior status upon the “nomination, confirmation and appointment of his successor.” See article hereJudge Bea was nominated to the Ninth by President George W. Bush. See article here

The Honorable Judge Carlos Bea
Judge Bea’s spot is President Trump’s ninth, Ninth, slot – with Patrick Bumatay rumored to be a lead candidate for the position. See Washington Times article here 

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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