dissenting.
I must respectfully dissent from the opinion of the majority. For reasons which I will more fully explain below, I would AFFIRM the judgment' of the district court.
The majority finds that the evidence adduced at trial was insufficient as a matter of law to uphold a conviction pursuant to 18 U.S.C. § 2113(d).1 Defendant argues that it was error to instruct the jury on armed bank robbery where the evidence shows that he only carried a toy gun which was never brandished or displayed in any way. Defendant, while acknowledging that a toy gun can be considered a dangerous weapon, argues that there must at least be some evidence the gun was used in the robbery. Defendant asserts that the only link between the toy gun and the armed bank robbery is the subjective fear *313of the bank teller which is not sufficient evidence that the gun was used in the robbery.
The majority concludes that the evidence was insufficient for a jury to find that defendant used a dangerous weapon or device. There is, however, no question that a toy gun may be a dangerous weapon. The case of McLaughlin v. United States, 476 U.S. 16, 106 S.Ct. 1677, 90 L.Ed.2d 15 (1986), established the principle that an unloaded gun is a dangerous weapon within the meaning of 18 U.S.C. § 2113(d) because: 1) it is an article typically and characteristically dangerous; 2) it creates an imminent danger of a violent response; and 3) it can be used as a bludgeon. This court subsequently extended this holding declaring that a toy gun can also be considered a dangerous weapon under 18 U.S.C. § 2113(d). United States v. Medved, 905 F.2d 935 (6th Cir.1990). The Medved court noted that a toy gun carries many of the same risks as a real gun, viz.,: 1) subjecting the victim to great apprehension; 2) inhibiting the response of law enforcement agencies; and, 3) increasing the chance of a violent response. Medved, 905 F.2d at 940. Thus, because a toy gun is clearly a dangerous weapon for purposes of 18 U.S.C. § 2113(d), the question before this court is solely whether the toy gun must be brandished or displayed to the victim.
As the majority concedes, there is very little authority on this point. The Ninth Circuit, however, has dealt with the issue in the context of a real gun2. That court held as follows:
The fact the [defendant] never had an opportunity to brandish or discharge his gun does not mean he did not “use” it. [Defendant] attempted to rob a bank and possession of a loaded gun was an integral part of the attempt. Moore “used” his gun, much as he used the gloves and ski mask. These items increased the likelihood of success; without them he probably would not have sailed forth.
United States v. Moore, 580 F.2d 360, 362 (9th Cir.1978).
The Ninth Circuit’s rationale is solid and can be applied to the facts sub judice. In the instant case, defendant prepared the toy gun in such a manner as to have it closely resemble an actual weapon. He painted it black and added a piece of metal on the barrel for the sole purpose of making a duplicate of an actual weapon. Defendant went into the bank intent on brandishing the weapon and attempted to do so. His failure was due only to his own ineptitude. There was testimony that defendant opened his coat to imply he had the gun. Clearly then, under the Moore rational, the preparation and possession of the gun led to defendant’s willingness to perpetrate the offense. Without the toy gun, he may never have attempted the robbery. His possession of the toy firearm was directly related to the bank robbery. Id. This is not a case where a defendant merely had a weapon in his possession unrelated to the underlying crime. Accordingly, it was the jury’s prerogative to find that defendant had attempted to commit armed robbery. Although the majority seems to feel it involves a stretch of credulity to find that since the toy gun was never brandished it still emboldened defendant, it must be remembered that defendant attempted to brandish the gun. The only reason he did not was because of his own ineptitude. I cannot imagine why defendant would have constructed and attempted to display the gun if it would not have emboldened him to some extent thereby increasing the likelihood he perceived existed for success. Contrary to the majority, I am not willing to usurp the function of the jury by holding that a reasonable jury could not have found defendant “used” the gun.
The majority states that defendant did not brandish or display the gun. With that proposition I do not quarrel. However, the majority also proclaims that defendant did not allude to the gun. The record indicates *314that defendant opened his jacket two separate times during the bank robbery. (Joint Appendix at 127). The first time he instructed the teller to hang up the telephone. The second time he placed his hand inside the jacket. In fact, defendant told his friend, Ezekiel Canterbury, that he attempted to pull out the gun, but that it got caught in his pants. It seems to me to be perfectly acceptable for the jury to infer that through this conduct, defendant was alluding to a gun. It must be remembered that it is not the province of this court to second guess the jury, but rather, to view the evidence in a light most favorable to the prosecution and determine whether any rational trier of fact could have found defendant guilty beyond a reasonable doubt. See United States v. Brown, 959 F.2d 63, 67 (6th Cir.1992). To state that no rational jury could infer that defendant alluded to his toy gun stretches credulity.
Therefore, the next step in the analysis should be to determine whether defendant’s use of the gun was an assault or placed anyones life in jeopardy. Viewing the facts, in a light most favorable to the prosecution3, there is no doubt in my mind that the answer is that defendant did jeopardize the teller’s well being. Through defendant’s specific, albeit inept, actions in using the gun, the bank teller inferred that defendant had a gun. This is not so remarkable a conclusion when one considers that, indeed he did possess a convincing replica of a gun. It seems to me to be eminently reasonable for the bank teller to have experienced the same greater apprehension that this court articulated in United States v. Medved, 905 F.2d 935 (6th Cir.1990). The Medved court quite appropriately noted that such apprehension could “bring on heart attacks and other untoward medical consequences.” Id. at 940. I would not limit the teller’s reasonable responses to such a situation to her visual senses. She was entitled to, and could not but help, use all of her senses. To my way of thinking, defendant’s actions in using and alluding to the gun created a justifiable and reasonable fear in the teller’s mind. Based upon this, a jury was certainly able to conclude that defendant had committed armed bank robbery. Accordingly, I would AFFIRM the conviction.
. It is noted that defendant's argument was not styled in terms of a challenge to the sufficiency of the evidence supporting a conviction. Rather, defendant argues that the evidence was insufficient to warrant a jury instruction on Armed Bank Robbery, 18 U.S.C. § 2113(d). However, the gist of his argument relates to the same issue as addressed by the majority, to-wit: can the possession of a toy gun, not brandished, serve as the basis to support a conviction under § 2113(d).
. The Ninth Circuit dealt with this issue in a case brought pursuant to 18 U.S.C. § 924(c), however, for purposes of this discussion that seems to me to be a distinction without a difference. Moreover, although the majority contends that for purposes of § 924(c) the term "used" has a broader meaning, it seems to me the more logical approach would be to grant the term the same meaning under both statutes and then continue the analysis, viz-, did defendant’s "use” of the gun assault or put in jeopardy the life of any person.
. If I seem to overemphasize this standard of review, it is because the majority opinion has done what I believe to be a de novo review under the guise of a deferential review.