concurring specially:
Because of my reluctance to reverse the Supreme Court of Louisiana’s reading of Louisiana law, I concur in the opinion of the majority.
I am nonetheless troubled by the possibility that in its one word affirmance of Hillie’s conviction for attempted armed robbery, the Supreme Court of Louisiana has criminalized behavior not prohibited by any lawfully enacted state statute, thereby depriving Hillie of his constitutional right against deprivation of liberty without due process of law.
Until now, the Louisiana courts have required that an ordinarily harmless instrumentality actually be used in a manner calculated or likely to produce death or great bodily harm before it can be labelled *186a dangerous weapon. In State v. Bonier, 367 So.2d 824, 826 (La.1979), the Louisiana Supreme Court explicitly rejected the claim that the possible use of an otherwise harmless instrumentality as a club was sufficient to raise a factual issue as to the weapon’s dangerousness. In so doing, the court hewed closely to the relevant statutory language, providing that a “[djangerous weapon includes ... any instrumentality which, in the manner used, is likely to produce death or great bodily harm.” La.Rev.Stat. Ann. 14:2(3) (West 1974) (emphasis added). I recognize that Bonier was a case of armed robbery, not attempted armed robbery. However, in a subsequent attempted armed robbery case, State v. Byrd, 385 So.2d 248 (La.1980), the court again identified the pertinent inquiry as “whether defendant’s use of the toy pistol created a life-endangering situation.” Id. at 250 (emphasis added). Because Byrd’s actual use of the toy pistol did not create a life-endangering situation, the court found that it was not a dangerous weapon, and reversed his conviction.
In both Bonier and Byrd, the Supreme Court of Louisiana found that an otherwise harmless instrumentality could be a dangerous weapon only when actually used as one because the statutoiy language defining “dangerous weapon” explicitly stated as much. Criminal statutes are, of course, meant to be narrowly construed.
The actual use test is well-suited to an armed robbery case like Bonier, where a robbery is actually committed, as well as to an attempted armed robbery case like Byrd, where the defendant gets far enough along in his attempt to actually use the otherwise harmless instrumentality in a manner which converts it into a dangerous weapon. The test cannot be applied in a case like the one before us, where defendant never even got out of the starting gate. From this I think it reasonable to conclude that the Louisiana Legislature in enacting section 14:2(3) never intended to criminalize behavior like Hillie's non-use of an umbrella handle.1 Stated differently, the Legislature in enacting this statute did not choose to incidentally create the crime of “attempted armed robbery with an attempted dangerous weapon.”
Indeed, it is far more reasonable to conclude that the Louisiana Legislature intended to criminalize only the dangerous use of an otherwise harmless instrumentality. The offense of simple robbery carries a maximum sentence of seven years, with or without hard labor. Parole, probation, and suspension of sentence are all available. But for armed robbery, the minimum sentence is five years at hard labor, without benefit of parole, probation, or suspension of sentence. As the Louisiana Supreme Court said in Byrd: “Clearly, the statutory scheme contemplates the more severe penalty is intended to deter the use of truly dangerous instrumentalities.” Byrd, 385 So.2d at 251. This policy holds true for both inherently and otherwise harmless dangerous weapons whenever the latter are actually used in such a manner as to become dangerous. However, by implicitly creating the offense of attempted armed robbeiy with an attempted dangerous weapon, and then subsuming it under the offense of attempted armed robbery, the Louisiana Supreme Court may well be going beyond the Legislature’s intent by imposing the considerably stiffer penalties for robberies committed with the aid of dangerous weapons, where no dangerous weapon was actually used. In so doing, it may be imposing a criminal sanction not contemplated by any statute.
On the other hand, it is the job of the courts to construe and apply the law. The Legislature cannot possibly foresee every factual situation to which it intends that a given law apply. Let us assume for the sake of argument that the Louisiana Su*187preme Court’s application of section 14:2(3) in this case constitutes a permissible construction of that statute consonant with legislative intent. In that case, we must consider whether, under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence is such that no rational trier-of-fact could have found proof of guilt beyond a reasonable doubt.
I am not certain that the evidence supports the jury’s verdict under Jackson. Crimes of attempt fall on a continuum between conspiracy, and actual commission of the crime. They are distinguished from conspiracy in that they require some overt act toward commission of the crime. I have no difficulty with the conclusion that Hillie is guilty of attempted robbery. Walking toward a bank carrying a stick-up note certainly constitutes an overt act toward the commission of a robbery. Applying the same reasoning to attempted armed robbery, we must ask ourselves whether Hillie committed an overt act sufficient to constitute an attempt to convert the otherwise harmless umbrella handle into a dangerous weapon. Walking toward a bank with an umbrella handle wrapped in a towel certainly suggests that the handle is intended to be perceived and used as if it were a gun. Under Louisiana law, the test of a dangerous weapon in an armed robbery or a thwarted armed robbery attempt is whether the phony weapon creates a life-endangering situation. In an attempted armed robbery case like this one, I assume arguendo that the test would be whether the umbrella handle was used in a manner indicating that it was to be used to create a life-endangering situation. The record provides no indication that had Hillie walked into the bank with his umbrella handle draped "in a towel, he would have endangered anyone’s life. There is no evidence that the, bank contained an armed guard, whose expected reaction to Hillie’s attempt could have created a life-endangering situation. Because Hillie’s attempted robbery was thwarted at so early a stage, too much speculation is inherent in the conclusion that the manner in which he would have used the umbrella handle would have created a life-endangering situation. Criminalizing such activity on such a speculative foundation is precisely what the actual use test was designed to avoid.
In Byrd, we must remember, defendant actually tried to hold up the cashier at the window of a fried chicken stand with a toy pistol. The Louisiana Supreme Court found that although a toy pistol could under some circumstances be used to create a life-endangering situation supporting a guilty verdict of armed robbery, such was not the case there.2 In our case, I fear that the Louisiana Supreme Court, without articulating the basis of its decision, is in effect *188holding that Hillie not only could have created a life-endangering situation, but that he did in fact attempt to do so when there is no evidence, and no explicit finding, that he would have or could have done so even if he had wanted to.
As a federal appellate court, however, we are not the final arbiters of decisions construing state law. Because I am not absolutely certain that the Louisiana Supreme Court is reading beyond the Legislature’s intent in enacting section 14:2(3), and because that court has itself determined that the evidence supports its somewhat mysterious construction of that statute, I am obliged to concur in the opinion of the majority in this case.
. I am not persuaded that my application of the actual use test in a pre-robbery situation “proves too much ... since by the same reasoning one apprehended while making for the bank with a demand note and a hand grenade
could not be convicted.” A hand grenade, like a loaded pistol, “is a dangerous weapon irrespective of how used or exhibited.” State v. Gould, 395 So.2d 647, 655 (La.1980) (on rehearing)-
. The actual use test has thus far been applied In attempted armed robbery cases only to preclude speculation as to how the otherwise harmless instrumentality might have been used, where we know enough about how it was actually used to determine whether its use created a life-endangering situation. Admittedly, this is a different use of the test than that presented in our case, where we cannot determine whether a life-endangering situation was created because the otherwise harmless instrumentality was never used. However, the fact that the test has been used only to rule out speculation in the face of controverting evidence as to the instrumentality’s actual use certainly does not authorize speculation as to its possible or even probable use where, as in our case, it was never used. Conjecture about how an otherwise harmless instrumentality might be used is an insufficient basis for converting it into a dangerous weapon precisely because it. is so speculative. Cases like Byrd, in which an otherwise harmless instrumentality could conceivably have been used in such a manner as to create a life-endangering situation, but was not, clearly show just how unacceptable this type of speculation is. Had Byrd never made it to the chicken stand, the majority’s reading of Louisiana law in our case would authorize a jury to find him guilty of attempted armed robbery. As it was, Byrd actually attempted the botched robbery, but failed to use the toy pistol in such a manner as to convince the Louisiana Supreme Court that he had created a life-endangering situation. Similarly, had Hillie actually made it to the bank, but failed in his attempted robbery, the use he made of his umbrella handle in the bank lobby might well have precluded a jury from finding him guilty of attempted armed robbery. Yet where he never made it to the bank, the Louisiana Supreme Court simply presumes that his use of the umbrella handle would necessarily have created a life-endangering situation.