Can we prepare a memo with the format statement of assignment, issue, brief answer, statement of facts, analysis/discussion, conclusion?

To: Legal Research and Writing Il Students

From: Supervising US District Attorney, District of Montana

RE: United States v. Canter

We have been assigned to prosecute Mr. Eldon Canter in the case United States V. Canter. Mr. Canter is charged with one count of armed bank robbery, in violation of 18 U.S.C. 2113

(a) and (d).

On January 5 of this year, Mr. Canter robbed the First State Bank. After he entered the bank, he approached a teller and pulled from his pocket a crudely carved wooden replica of a

9-mm Beretta handgun. He had carved the replica from a block of pine wood and stained it with dark walnut wood stain to make it look black. He drilled a hole in the barrel end in an attempt to make it look like a real Beretta. The teller was so frightened that he only glanced at the wooden gun. He believed it was real. The teller at the next window looked at the replica and afterward stated that she thought there was a believed it was real. The teller at the next window looked at the replica and afterward stated that she thought there was a possibility it was fake. No one else noticed whether or not the wooden replica as real.

I have spoken to Mr. Canter's attorney informally, and he has told me he is relying on the Montana state case of In Re.

R.L.S. to prove that Mr. Canter should not be charged under Section (d) of the statute since the weapon he was using was fake. I believe this reliance to be misplaced.

I have attached in this module the statute, the case opposing counsel will be relying upon, and the two cases I believe we should be relying upon.

Can we prepare a memorandum explaining your findings to your supervising attorney and answer the following questions?

• Of the three cases brought up, which is the only one considered primary authority for our case at hand?
• Of the other two cases, which one involves the correct statute?

Can we prepare a memorandum explaining your findings to your supervising attorney? Can we discuss the correct statute, the case which is primary authority and why it is primary authority, and a brief explanation of the cases which are not primary authority and why they are not?

18 U.S.C.A. 2113

2113. Bank robbery and incidental crimes

Effective: November 2, 2002

Currentness

(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or

Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny--

Shall be fined under this title or imprisoned not more than twenty years, or both.

(b) Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $1,000 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined under this title or imprisoned not more than ten years, or both; or

Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value not exceeding $1,000 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined under this title or imprisoned not more than one year, or both.

(c) Whoever receives, possesses, conceals, stores, barters, sells, or disposes of, any property or money or other thing of value which has been taken or stolen from a bank, credit union, or savings and loan association in violation of subsection (b), knowing the same to be property which has been stolen shall be subject to the punishment provided in subsection (b) for the taker.

(d) 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 fined under this title or imprisoned not more than twenty-five years, or both.

(e) Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or if death results shall be punished by death or life imprisonment.

(f) As used in this section the term "bank" means any member bank of the Federal Reserve System, and any bank, banking association, trust company, savings bank, or other banking institution organized or operating under the laws of the United States, including a branch or agency of a foreign bank (as such terms are defined in paragraphs (1) and (3) of section 1(b) of the International Banking Act of 1978), and any institution the deposits of which are insured by the Federal Deposit Insurance Corporation.

(g) As used in this section the term "credit union" means any Federal credit union and any State-chartered credit union the accounts of which are insured by the National Credit Union Administration Board, and any "Federal credit union" as defined in section 2 of the Federal Credit Union Act. The term "State-chartered credit union" includes a credit union chartered under the laws of a State of the United States, the District of Columbia, or any commonwealth, territory, or possession of the United States.

(h) As used in this section, the term "savings and loan association" means--

(1) a Federal savings association or State savings association (as defined in section 3(b) of the Federal Deposit Insurance Act (12 U.S.C. 1813(b))) having accounts insured by the Federal Deposit Insurance Corporation; and (2) a corporation described in section 3(b)(1)(C) of the Federal Deposit Insurance Act (12 U.S.C. 1813(b)(1)(C)) that is operating under the laws of the United States.

293 Mont. 288

Supreme Court of Montana.

In the Matter of R.L.S., A Youth.

No. 98-494.

Submitted on Briefs Jan. 28, 1999.

Decided Feb. 24, 1999.

Synopsis

Juvenile entered into plea agreement pursuant to which he agreed to admit to felony assault offense arising out of his placing fake bomb under restroom sink at public school. He was subsequently adjudicated delinquent by the District Court, Yellowstone County, G. Todd Baugh, J., based on offense of felony assault. Juvenile appealed. The Supreme Court, Gray, J., held that fake bomb was not a "weapon" for purposes of felony assault statute which prohibits purposely or knowingly causing reasonable apprehension of serious bodily injury in another by use of a weapon.

Reversed and remanded

Attorneys and Law Firms

**967 *289 Kristina Guest, Deputy Public Defender, Billings, Montana, for Appellant.

Hon. Joseph P. Mazurek, Attorney General, Patricia J. Jordan, Ass't Attorney General, Helena, Montana, Dennis Paxinos, Yellowstone County Attorney, Richard Helm, Deputy County Attorney, Billings, Montana, for Respondent.

Opinion

Justice KARLA M. GRAY delivered the Opinion of the Court.

1 R.L.S. appeals from the order of the Youth Court of the Thirteenth Judicial District, Yellowstone County, denying his motion to dismiss. We reverse and remand.

2 The issue on appeal is whether the Youth Court erred in denying R.L.S.'s motion to dismiss five felony assault charges.

BACKGROUND

3 The State of Montana (State) filed a petition in the Youth Court alleging that **968 R.L.S. was a delinquent youth because he committed five counts of felony assault, by purposely or knowingly causing reasonable apprehension of serious bodily injury in another by use of a weapon, and one count of misdemeanor disorderly conduct. Insofar as it related to the felony assaults, the affidavit in support of the petition stated that R.L.S. placed a device which appeared to be a bomb under a sink in a restroom of the Castle Rock Middle School, and that five people saw the device, believed it to be a bomb and were frightened or concerned for their safety. The local bomb squad disposed of the device, which, according to R.L.S., was a fake bomb intended as a practical joke.

4 At his initial appearance on the petition, R.L.S. admitted having committed disorderly conduct and denied having committed the felony assaults. He subsequently moved the Youth Court to dismiss the felony assault charges and the court denied the motion. R.L.S. then entered into a plea agreement with the State pursuant to which he agreed to admit one felony assault offense and reserved the right to appeal the Youth Court's denial of his motion to dismiss; the State agreed to move to dismiss the remaining four felony assault charges and recommend probation. The Youth Court subsequently accepted *290 R.L.S.'s admission of one felony assault, dismissed the remaining felony assault charges and adjudicated R.L.S. a delinquent youth. The court ordered that R.L.S. be placed on probation for 180 days, subject to specified conditions. Pursuant to his reservation of his right to appeal under 46-12-204(3), MCA, R.L.S. appeals from the Youth Court's denial of his motion to dismiss the five felony assault charges.

DISCUSSION

5 Did the Youth Court err in denying R.L.S.'s motion to dismiss the five felony assault charges?

6 R.L.S. asserted that the felony assault charges on which the State's petition alleging that he was a delinquent youth was based should be dismissed because the facts alleged in the petition did not constitute the offense of felony assault set forth in 45-5-202(2)(b), MCA. Specifically, he argued that the petition failed to allege that the device placed under the restroom sink was a "weapon"defined in 45-2-101(76), MCA, as an article or instrument "readily capable of being used to produce death or serious bodily injury"because the petition alleged only that the device "appeared to be" a bomb. R.L.S. also argued that, because he never threatened anyone with the device and the device was not in his possession when people saw it, the petition failed to allege that he "used" a weapon. The Youth Court denied R.L.S.'s motion to dismiss, concluding that the device must be taken as it appears to be and is a weapon under the statute if it looks readily capable of producing death or serious bodily injury. R.L.S. asserts that the Youth Court erred.

[1] [2] 7 A district court's decision to grant or deny a motion to dismiss involves a question of law. State v. Koehn, 1998 MT 234, 9, 291Mont. 87, 9, 966 P.2d 143, 9, 55 St.Rep. 985, 9. We review conclusions of law to determine whether they are correct. Koehn, 9. R.L.S. reiterates on appeal both arguments he advanced in the Youth Court in support of his motion to dismiss. We conclude that his argument regarding whether a fake bomb meets the statutory definition of a weapon is dispositive and, consequently, do not address his argument regarding whether the petition adequately alleged his "use" of a weapon.

[3] [4] 8 In determining whether a device which appears to be a bomb, but is not an actual bomb, is a weapon for purposes of the offense of felony assault, we look first to the definition of "weapon" contained in 45-2-101(76), MCA. In construing that statutory definition, our role is "to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been *291 inserted." Section 1-2-101, MCA. The intent of the Legislature is to be pursued and we determine that intent by interpreting the plain meaning of the language used by the Legislature. State v. Zabawa (1996), 279 Mont. 307, 313, 928 P.2d 151, 155(citations omitted). The statutory language must be reasonably and logically interpreted and words given their usual and ordinary meaning. Gallatin County v. Montana Eighteenth Jud. Dist. (1997), 281 Mont. 33, 40, 930 P.2d 680, 685 **969 (citations omitted). "Where the language is clear and unambiguous, the statute speaks for itself and we will not resort to other means of interpretation." Zabawa, 279 Mont. at 313, 928 P.2d at 155 (citation omitted).

9 The State's petition alleged that R.L.S. committed five counts of felony assault under 45-5-202(2)(b), MCA, by purposely or knowingly causing "reasonable apprehension of serious bodily injury in another by use of a weapon." Section 45-2-101(76), MCA, defines "weapon" as any instrument, article, or substance that, regardless of its primary function, is readily capable of being used to produce death or serious bodily injury.

The plain meaning of the word "readily" is "easily." The American Heritage Dictionary 1504 (3rd ed.1992). "Capable" is defined as "[h]aving capacity or ability ... able ... [h]aving the ability required for a specific task...." The American Heritage Dictionary 283 (3rd ed.1992). Thus, a device is a weapon under the plain meaning of 45-2-101(76), MCA, if it is easily able to produce death or serious bodily injury.

[5] 10 Here, the State's petition alleged that the device R.L.S. placed under the sink "appeared to be a bomb." Nothing in the petition indicates that the device actually was a bomb capable of detonating or otherwise producing death or serious bodily injury. A device which only "appears to be" a bomb is not easily able toor, in the words of the statute, "readily capable of"producing death or serious bodily injury. As a result, such a device is not a weapon as defined in 45-2-101(76), MCA.

11 The State concedes that the bomb squad destroyed the device before ascertaining whether it was an actual bomb. The State contends, however, that the Youth Court correctly determined that the definition of "weapon" must be read from the victim's perspective, pursuant to which a device meets the 45-2-101(76), MCA, definition of "weapon" if it appears and is perceived to be capable of inflicting death or serious bodily injury, regardless of whether the device is capable of inflicting such injury. Thus, the State argues that, because *292 the device at issue here appeared to be a bomb and the people who observed it thought it was a bomb, the device constituted a threat of death or serious bodily injury and was a weapon.

12 The problem with the State's position is that it is at odds with the plain language of 45-2-101(76), MCA. As discussed above, the statute sets forth an objective standard for determining whether an object is a weapon: if the object is readily capable of producing death or serious bodily injury, it is a weapon. The statutory definition of weapon simply is not susceptible to any reasonable interpretation that would include a victim's subjective view of the device at issue. To adopt the State's analysis of 45-2-101(76), MCA, would require us to ignore our proper role in interpreting statutes and insert the language "appears to be" before the term "readily capable" in the statute. It is not our function to insert language into a statute which has not been placed there by the Legislature. See 1-2-101, MCA.

[6] 13 The State also argues, however, that the statutory definition of weapon must be read in conjunction with the 45-5-202(2)(b), MCA, definition of felony assault applicable in this case. It contends that, because the gravamen of the felony assault statute is the subjective "reasonable apprehension" of the victim, a device constitutes a weapon if the victim is reasonably apprehensive that the device is a weapon. We disagree.

14 The elements of the offense of felony assault under 45-5-202(2)(b), MCA, are (1) purposely or knowingly, (2) causing reasonable apprehension of serious bodily injury in another, (3) by use of a weapon. See, e.g., State v. Ottwell (1989), 239 Mont. 150, 156, 779 P.2d 500, 503; State v. Brown(1989), 239 Mont. 453, 456, 781 P.2d 281, 283-84. The reasonable apprehension of the victim pertains to whether the victim reasonably believes he or she will be seriously bodily injured, not whether he or she subjectively believes that the device or instrument used by the assailant is actually a weapon.

15 Furthermore, the cases the State advances in support of its argument in this regard are inapplicable to the issue before **970 us. The State first relies on State v. Herron (1892), 12 Mont. 230, 29 P. 819, for the proposition that the prosecution need not prove the device at issue in a felony assault charge is capable of inflicting injury as long as the victim perceives it to be capable of inflicting injury. In Herron, we held that, where the prosecution established that the defendant pointed a rifle atand threatened to shootthe victim, the prosecution was not required to introduce evidence that the rifle was actually *293 loaded with ammunition in order to prove the offense of attempted assault with a deadly weapon. Rather, the fact that the rifle was not loaded was a matter to be raised as a defense to the charge. Herron, 12 Mont. at 235, 29 P. at 821. In that regard, we need only observe that Herron did not interpret any statutory definition of " weapon."

16 Neither is State v. Weinberger (1983), 206 Mont. 110, 671 P.2d 567, applicable here. In Weinberger, when addressing whether the evidence presented at trial established the elements of aggravated assault under 45-5-202(1), MCA, we assumed that the chain used by the defendant was a weapon because neither party disputed that issue. Weinberger, 206 Mont. at 129, 671 P.2d at 577. Again, we did not address or interpret the 45-2-101(76), MCA, definition of "weapon."

17 Similarly, the State's reliance on federal cases holding that unloaded guns, toy guns and fake bombs are dangerous weapons under 18 U.S.C. 2113(d) and 18 U.S.C. 111(b) is misplaced. None of the cited cases addressed a statutory definition of "weapon," much less a definition similar or identical to 45-2-101(76), MCA. See McLaughlin v. United States (1986), 476 U.S. 16, 106 S.Ct. 1677, 90 L.Ed.2d 15; United States v. Hamrick (4th Cir.1995), 43 F.3d 877; United States v. Perry (6th Cir.1993), 991 F.2d 304; United States v. Cannon (1st Cir.1990), 903 F.2d 849; United States v. Spedalieri (10th Cir.1990), 910 F.2d 707; United States v. Martinez-Jimenez(9th Cir.1989), 864 F.2d 664; United States v. Marx (10th Cir.1973), 485 F.2d 1179; United States v. Cooper (5th Cir.1972), 462 F.2d 1343. As a result, the federal cases also are inapplicable here.

[7] 18 We conclude that the 45-2-101(76), MCA, definition of "weapon" clearly and unambiguously requires that the device at issue actually be capable of producing death or serious bodily injury. We further conclude that the petition filed against R.L.S. in this case, having alleged only that the device which R.L.S. placed under the sink "appeared to be" a bomb, failed to allege that R.L.S. used a weapon and, thus, failed to state facts constituting the offense of felony assault under 45-5-202(2)(b), MCA. We hold, therefore, that the District Court erred in denying R.L.S.'s motion to dismiss the five felony assault charges.

19 Reversed and remanded for further proceedings consistent with this opinion.

J.A. TURNAGE, C.J., and JIM REGNIER, TERRY N. TRIEWEILER, and W. WILLIAM LEAPHART, JJ., concur.

All Citations

293 Mont. 288, 977 P.2d 967, 1999 MT 34

864 F.2d 664

United States Court of Appeals,

Ninth Circuit.

UNITED STATES of America, Plaintiff-Appellee,

v.

Gilbert MARTINEZ-JIMENEZ, Defendant-Appellant.

No. 87-5305.

Submitted Oct. 4, 1988.

Decided Jan. 3, 1989.

Synopsis

Defendant was convicted by the United States District Court for the Central District of California, Robert M. Takasugi, J., of armed bank robbery, and he appealed. The Court of Appeals, Nelson, Circuit Judge, held that toy gun used in robbery was "dangerous weapon" within meaning of federal bank robbery statute, even though it was not used in assaultive manner.

Affirmed.

Attorneys and Law Firms

*664 Michael L. Stern, Los Angeles, Cal., for defendant-appellant.

*665 Jeffrey C. Eglash, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before NELSON, BEEZER and HALL, Circuit Judges.

Opinion

NELSON, Circuit Judge:

Gilbert Martinez-Jimenez appeals his conviction following a bench trial on one count of armed bank robbery in violation of 18 U.S.C. 2113(a) & (d). He contends that the trial court erred in concluding that the toy gun that he held during the bank robbery was a "dangerous weapon" as defined by 18 U.S.C. 2113(d). We affirm the judgment of the district court.

PROCEDURAL BACKGROUND

On July 14, 1987 a federal grand jury in the Central District of California returned a three-count indictment that charged the appellant and an accomplice, Joe Anthony De La Torre, with armed bank robbery in violation of 18 U.S.C. 2113(a) & (d) and with carrying a firearm during a crime of violence in violation of 18 U.S.C. 924(c). At a bench trial the appellant and his accomplice were found guilty of armed bank robbery as charged in count one and not guilty of carrying a firearm during a crime of violence, as charged in counts two and three.

FACTS

On June 19, 1987, at approximately 12:55 p.m., Martinez-Jimenez and De La Torre entered a bank in Bellflower, California. While De La Torre took cash from a customer and two bank drawers, Martinez-Jimenez remained in the lobby and ordered that the people in the bank lie "face down on the floor." During this time Martinez-Jimenez was holding an object that eyewitnesses thought was a handgun. These persons included two bank employees and a customer who was familiar with guns because he owned several handguns, had handled weapons while in military service, and occasionally used weapons at firing ranges. The three witnesses testified that the object was a dark revolver about eight or nine inches long and that it caused them to fear for the safety of themselves and of those around them.

At trial, De La Torre testified that neither he nor Martinez-Jimenez had operable firearms when they entered the bank. He testified that Martinez-Jimenez had a toy gun that he and Martinez-Jimenez had purchased at a department store a few hours prior to the robbery. De La Torre also testified that he hid the toy gun in his closet after the robbery, that neither he nor Martinez-Jimenez wanted the bank employees to believe that they had a real gun, and that they did not want the bank employees to be in fear for their lives. Martinez-Jimenez testified that he had carried the toy gun because he felt secure with it and that during the robbery he held it down toward his leg in order to hide it so that people would not see it. The defense introduced into evidence a toy gun. Martinez-Jimenez testified that the gun used in the robbery was the toy gun introduced into evidence. It was stipulated that De La Torre's attorney had received the toy gun offered as the gun used in the robbery from De La Torre's mother.

Based upon observation of the bank robbery photographs and the toy gun, the court concluded that Martinez-Jimenez possessed a toy gun during the course of the bank robbery and that he had kept the toy gun pointed downwards by his side during the course of the bank robbery. On the basis of his display of the toy gun in the course of the robbery, Martinez-Jimenez was convicted under section 2113(d) which provides an enhanced penalty for use of a "dangerous weapon" during a bank robbery.

STANDARD OF REVIEW

[1] The question presented is whether a toy gun is a "dangerous weapon" within the meaning of the federal bank robbery statute. Interpretation of a statute presents a question of law reviewable de novo. United States v. Wilson, 720 F.2d 608, 609 n. 2 (9th Cir.1983), cert. denied, *666 465 U.S. 1034, 104 S.Ct. 1304, 79 L.Ed.2d 703 (1984); United States v. Moreno-Pulido, 695 F.2d 1141, 1143 (9th Cir.1983).

DISCUSSION

[2] A robber may be guilty of an armed bank robbery under section 2113(d) if he uses a dangerous weapon or device in the commission of the crime. The instrumentality does not have to be a firearm. The use, or unlawful carrying, of a firearm in a bank robbery is a more serious offense punishable separately under section 924(c). In this case, the appellant carried a toy replica of a firearm that simulated the appearance but not the weight of a genuine firearm. The toy gun did not fit the statutory definition of a firearm under 18 U.S.C. 921(a)(3). However, it did fall within the meaning of a "dangerous weapon or device" under section 2113(d). Section 2113(d) states that 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 fined not more than $10,000 or imprisoned not more than twenty-five years, or both.

In McLaughlin v. United States, 476 U.S. 16, 106 S.Ct. 1677, 90 L.Ed.2d 15 (1986), the Supreme Court found that a defendant who used an unloaded handgun was convicted properly under section 2113(d) because the unloaded handgun was a dangerous weapon under the statute. Id. at 17, 106 S.Ct. at 1677-78. Prior to McLaughlin this circuit, and other circuits, had assumed that section 2113(d) was violated only by the use of a loaded operable gun. United States v. Terry, 760 F.2d 939, 942 (9th Cir.1985); see also Parker v. United States, 801 F.2d 1382, 1384 n. 2 (D.C.Cir.1986), cert. denied, 479 U.S. 1070, 107 S.Ct. 964, 93 L.Ed.2d 1011 (1987).

The McLaughlin opinion stated:

Three reasons, each independently sufficient, support the conclusion that an unloaded gun is a "dangerous weapon." First, a gun is an article that is typically and characteristically dangerous; the use for which it is manufactured and sold is a dangerous one, and the law reasonably may presume that such an article is always dangerous even though it may not be armed at a particular time or place. In addition, the display of a gun instills fear in the average citizen; as a consequence, it creates an immediate danger that a violent response will ensue. Finally, a gun can cause harm when used as a bludgeon.

McLaughlin, 476 U.S. at 17-18, 106 S.Ct. at 1677-78 (footnote omitted) (emphasis added).

The McLaughlin opinion recognizes that the dangerousness of a device used in a bank robbery is not simply a function of its potential to injure people directly. Its dangerousness results from the greater burdens that it imposes upon victims and law enforcement officers. Therefore an unloaded gun that only simulates the threat of a loaded gun is a dangerous weapon. The use of a gun that is inoperable and incapable of firing also will support a conviction under section 921(a)(3) and section 2113(d). United States v. York, 830 F.2d 885, 891 (8th Cir.1987), cert. denied, 484 U.S. 1074, 108 S.Ct. 1047, 98 L.Ed.2d 1010 (1988); see also United States v. Goodheim, 686 F.2d 776, 778 (9th Cir.1982).

These cases reflect a policy that the robber's creation of even the appearance of dangerousness is sufficient to subject him to enhanced punishment. Other cases have given effect to this policy by holding that the trier of fact may infer that the instrument carried by a bank robber was a firearm based only on witness testimony that it appeared to be genuine. Parker, 801 F.2d at 1283-84; United States v. Harris, 792 F.2d 866, 868 (9th Cir.1986). McLaughlin validates this policy but eliminates the inefficiencies associated with the inference process.

A robber who carries a toy gun during the commission of a bank robbery creates some of the same risks as those created by one who carries an unloaded or inoperable genuine gun. First, the robber subjects victims to greater apprehension. Second, the robber requires law enforcement agencies *667to formulate a more deliberate, and less efficient, response in light of the need to counter the apparent direct and immediate threat to human life. Third, the robber creates a likelihood that the reasonable response of police and guards will include the use of deadly force. The increased chance of an armed response creates a greater risk to the physical security of victims, bystanders, and even the perpetrators. Therefore the greater harm that a robber creates by deciding to carry a toy gun is similar to the harm that he creates by deciding to carry an unloaded gun.

The McLaughlin opinion examined the floor debate on the provision that became section 2113(d) and concluded that Congress was concerned with the potential of an apparently dangerous article to incite fear. McLaughlin, 476 U.S. at 18 n. 3, 106 S.Ct. at 1678 n. 3. The House debate on the provision that became section 2113(d) indicates that an ersatz wooden gun used in a bank robbery would satisfy the statutory meaning of a dangerous weapon or device. See 78 Cong.Rec. 8132 (1934). If Congress intended that an ersatz wooden gun would fall within the statute, by analogy an ersatz plastic gun should fall within the statute. Congress' intent focused on the nature of the effect that the robber creates, not the specific nature of the instruments that he utilizes.

Appellant concedes that McLaughlin applies to the use of an inherently dangerous weapon such as an unloaded firearm but argues that it does not apply to a harmless instrumentality of a crime, such as a toy gun, unless the defendant used the instrumentality in an assaultive manner. The trial court found that the replica was a "totally plastic and extremely light" toy gun, and that Martinez-Jimenez had held it downward by his side and not towards any of the bank employees or customers. Therefore the defendant urges that his manner of displaying this particular toy gun avoids McLaughlin 's definition of a dangerous weapon because it would not have instilled fear in an average citizen and would not have created a danger of a violent response.

[3] We disagree. A bank robber's use of a firearm during the commission of the crime is punishable even if he does not make assaultive use of the device. He need not brandish the firearm in a threatening manner. United States v. Mason, 658 F.2d 1263, 1270-71 (9th Cir.1981). His possession of the weapon is an integral part of the crime. United States v. Moore, 580 F.2d 360, 362 (9th Cir.), cert. denied, 439 U.S. 970, 99 S.Ct. 463, 58 L.Ed.2d 430 (1978). By analogy, a bank robber's use of a replica or simulated weapon violates section 2113(d) even if he does not make assaultive use of the device. His possession of the instrument during the commission of the crime evidences his apparent ability to commit an assault. The appellant's possession of the toy gun facilitated the crime and increased its likelihood of success. The appellant testified that he carried the toy gun because he "felt secure with it." This suggests that he may not have begun the robbery without it.

Section 2113(d) is not concerned with the way that a robber displays a simulated or replica weapon. The statute focuses on the harms created, not the manner of creating the harm. The record shows substantial evidence that the appellant's possession of the toy gun created fear and apprehension in the victims. Appellant argues that we should put aside this testimony because it was based upon the witnesses' mistaken assessment of the apparent threat. Appellant's argument fails because, during a robbery, people confronted with what they believe is a deadly weapon cannot be expected to maintain a high level of critical perception.1

*668 By extension, appellant also argues that the toy gun did not jeopardize the life of any person because it did not increase the police's burden to interdict the crime during its commission or aftermath and could not have provoked the police's use of a deadly response that could have endangered others. This argument fails because the police must formulate a response to an apparently armed robber during the course of the crime, not after it. They must confront the risk that a replica or simulated gun creates before knowing that it presents no actual threat. These confrontations often lead to gunfire and casualties. See, e.g., L.A. Times, Oct. 18, 1988, 2, at 3, col. 1 (San Diego County ed.); id., May 13, 1988, 2, at 2, col. 5 (home ed.).

CONCLUSION

The values of justice, administrability, and deterrence require the rule that a robber's use of a replica or simulated weapon that appears to be a genuine weapon to those present at the scene of the crime, or to those charged with responsibility for responding to the crime, carries the same penalty as the use of a genuine weapon. In this case appellant avoided the harsher penalties associated with use of a firearm in violation of section 924(c) by proving that he only had simulated the use of a firearm. However, the appellant's decision to bluff did not eliminate the harms that Congress intended to address in section 2113(d).

AFFIRMED.

918 F.2d 1

United States Court of Appeals,

First Circuit.

UNITED STATES of America, Appellee,

v.

Gregory Wayne BENSON, Defendant, Appellant.

No. 90-1369.

Heard Aug. 1, 1990.

Decided Oct. 31, 1990.

Synopsis

Enhanced sentence was imposed upon defendant who entered into stipulation of guilt to bank robbery, in the United States District Court for the District of Maine, Gene Carter, Chief Judge, 725 F.Supp. 69, and defendant appealed. The Court of Appeals, Cyr, Circuit Judge, held that: (1) evidence was sufficient to show that defendant used "dangerous device" during bank robbery, within meaning of statute rendering bank robber vulnerable to sentence enhancement for use of "dangerous weapon or device" in attempting or committing crime, where defendant announced to teller that he had gun and then placed his hand in pocket in menacing manner, revealing metallic object which teller reasonably believed to be gun, although it was in reality a knife, and (2) evidence was sufficient to show for sentence enhancement purposes that defendant placed in jeopardy the lives of teller and other persons at robbery scene, even including defendant, by defendant's use of "mock gun."

Affirmed.

Attorneys and Law Firms

*2 James R. Bushell, Portland, Me., for defendant, appellant.

Margaret D. McGaughey, Asst. U.S. Atty., Portland, Me., with whom Richard S. Cohen, U.S. Atty., Augusta, Me., and Nicholas M. Gess, Asst. U.S. Atty., Portland, Me., were on brief, for appellee.

Before TORRUELLA and CYR, Circuit Judges, and RE,* Judge.

Opinion

CYR, Circuit Judge.

Following a bench trial, appellant, Gregory Wayne Benson, was convicted of robbing the Coastal Savings Bank in Portland, Maine, and of putting the life of a bank teller in jeopardy by the use of a dangerous device, in violation of 18 U.S.C. 2113(a) and (d).1 725 F.Supp. 69. Since Benson stipulated that he robbed the bank through "force, violence or intimidation," in violation of 18 U.S.C. 2113(a),2the sole issue for trial was whether he would be subject to an enhancement of sentence under subsection 2113(d).3 On appeal, Benson asserts that the district court erroneously found that he (1) used a "dangerous weapon" during the robbery and (2) put the bank teller's life in jeopardy. As neither contention is sound, we affirm the judgment of conviction.

Appellant admitted at trial that he entered the Coastal Savings Bank, approached a teller and told her: "This is a hold up." He informed the teller that he had a gun and then moved his left hand inside his jacket pocket, creating the impression that it contained a gun. The movement of Benson's hand inside his jacket pocket exposed a metallic object which the teller believed to be a gun. Benson denied that he either possessed or used a gun during the robbery but admitted that the object in his jacket pocket during the robbery was an army knife. Benson denied that he was carrying the army knife for use in the robbery or that he had intentionally revealed it to the teller.

The district court found that the army knife was an inherently dangerous device and that its use as a "mock gun" during the course of a bank robbery exacerbated its dangerousness. The district court further found that Benson put the teller's life in jeopardy by virtue of the fact that he possessed both the actual and the apparent ability to inflict bodily harm.

I

Appellant contends that there was an insufficient showing that he used a dangerous device during the robbery. Although he concedes that he attempted to create the impression that he possessed a gun in order to facilitate the robbery, Benson argues *3 that a bank robber's mere assertion that he possesses a gun, even when accompanied by efforts to feign one, is insufficient to render a "mock gun" a dangerous device. We disagree.

[1] [2] A bank robber is vulnerable to a sentence enhancement under subsection 2113(d) if he uses "a dangerous weapon or device" in attempting or committing the crime. In other words, the instrumentality used need not be a "firearm."4 The dangerousness of an instrumentality used in a bank robbery is not necessarily determined simply by its inherent capacity to inflict harm, but by the dangerousness of the response it may reasonably be expected to provoke on the part of persons who perceive that the instrumentality is dangerous.5 See McLaughlin v. United States, 476 U.S. 16, 106 S.Ct. 1677, 90 L.Ed.2d 15 (1986); United States v. Cannon, 903 F.2d 849, 854-55 (1st Cir.1990).

The Supreme Court held in McLaughlin that an unloaded handgun was a "dangerous weapon" within the meaning of the federal bank robbery statute. Id. Among the grounds the Court considered "independently sufficient" to support its holding was its assessment that "the display of a gun instills fear in the average citizen [and thus] creates an immediate danger that a violent response will ensue." Id. at 17-18, 106 S.Ct. at 1678.6 Following McLaughlin 's lead, we recently held that a toy gun similarly constitutes a "dangerous weapon" within the meaning of subsection 2113(d) because, among other reasons, " 'the robber creates a likelihood that the reasonable response of police and guards will include the use of deadly force. The increased chance of an armed response creates a greater risk to the physical security of victims, bystanders, and even the perpetrators.' " United States v. Cannon, 903 F.2d 849, 854-55 (1st Cir.1990) (quoting Martinez-Jiminez, 864 F.2d at 666-667).

Appellant attempts to distinguish the present case on the ground that the dangerousness discussed in McLaughlin and Cannon arose from the perpetrators' open display of weapons, which was much more likely to provoke a violent response; whereas the device used by Benson was hidden and therefore less likely to create a dangerous situation. We are unpersuaded by appellant's fine distinction between a peek and a display.

[3] [4] Subsection 2113(d) is not concerned with the manner in which the dangerous weapon or device is displayed, see Martinez-Jiminez, 864 F.2d at 667, but with whether its use jeopardizes human life. Benson announced to the teller that he had a gun and then placed his hand in his pocket in a menacing manner, revealing a metallic object which the teller, who was familiar with weapons, reasonably believed to be a gun. The verbal announcement and peek preview were sufficient to create an "immediate danger that a violent response [would] ensue," McLaughlin, 476 U.S. at 18, 106 S.Ct. at 1678, as, for example, from the use of deadly force by guards or police, Cannon, 903 F.2d at 855. There was a sufficient showing that Benson used a "dangerous device" during the bank robbery.

II

Appellant's second contention is that the district court erroneously found that he put the teller's life in jeopardy. Benson argues that a mere showing that a person was placed in fear is insufficient to establish *4 "jeopardy" within the meaning of subsection 2113(d); there must be a showing that the person's life was placed in actual danger. The Eighth Circuit has concluded that, "[u]nless placing in jeopardy can be said to mean more than placing in fear, then nothing has been added to 2113(d) over 2113(a) to explain or justify the enhanced punishment which subdivision (d) permits." United States v. Thomas, 521 F.2d 76, 81 (8th Cir.1975). See also United States v. Marshall, 427 F.2d 434, 437-38 (2d Cir.1970) (same); United States v. Roach, 321 F.2d 1, 5 (3d Cir.1963); United States v. Burger, 419 F.2d 1293, 1294 (5th Cir.1969); United States v. Roustio, 455 F.2d 366, 371 (7th Cir.1972); Morrow v. United States, 408 F.2d 1390, 1391 (8th Cir.1969); United States v. Coulter, 474 F.2d 1004, 1005 (9th Cir.1973) (all holding that 2113(d) requires that a person's life be placed in an objective state of danger); but see United States v. Shelton, 465 F.2d 361, 362 (4th Cir.1972) ("puts in jeopardy" provision requires proof only of apparent, not actual, danger); United States v. Spedalieri, 910 F.2d 707, 710 (10th Cir.1990) ( 2113(d) requires that robber place person "in reasonable expectation of death or serious bodily injury").

[5] [6] We have yet to address the meaning of the "jeopardy" provision in subsection 2113(d), nor need we define its scope today. By its express language, subsection 2113(d) applies whenever a person's life is placed in actual danger by the use of a dangerous device. During the robbery, appellant used an army knife as a dangerous weapon by informing the teller that he had a gun and, at the same time, moving his hand inside his pocket, revealing a metallic object which the teller reasonably believed to be a gun; "a dangerous weapon or device." The fact that the object in Benson's pocket was a knife, perhaps itself a dangerous instrumentality, though an independently sufficient predicate for a sentence enhancement under subsection 2113(d), is not a necessary one. Benson's use of the "mock gun" during the bank robbery was calculated and could reasonably be expected to instill fear in the teller, creating an immediate danger that a violent response would be forthcoming, see McLaughlin, 476 U.S. at 18, 106 S.Ct. at 1678; Cannon, 903 F.2d at 854-55, which would put in jeopardy the lives of the teller and other persons at the robbery scene, even including appellant.7

Affirmed.