concurring in part and dissenting in part:
I am in complete accord with the analysis in Part I of the majority opinion which agrees with the Supreme Court’s decision in McLaughlin v. United States, 476 U.S. 16, 106 S.Ct. 1677, 90 L.Ed.2d 15 (1986), as well as the position of the Solicitor General of the United States in McLaughlin and with a number of subsequent court decisions all holding that some display or brandishing of an ostensibly dangerous weapon is essential to a conviction under 18 U.S.C. § 2113(d) and that it does not apply where there was no more than a threat to use violence and no apparently dangerous device was exhibited. Accordingly, I agree that the jury instruction here was overbroad, misinterpreted § 2113(d), and the conviction must be reversed.
In reaching its conclusion, the majority assumes that Ray did not in fact possess a dangerous weapon and there is no direct evidence that he did. He exhibited no weapon and did not state that he had one but did *1143threaten to blow the teller’s head off. He had no weapon when apprehended and the driver of the getaway ear, although testifying for the prosecution pursuant to a plea bargain, stated that he had not seen Ray in possession of a gun. The tellers saw no gun or even the outline or contour of one. The most they observed was that Ray “moved his hands around a lot” and put one hand in his pocket and removed it with nothing in it.
It is clear, and the majority agrees, that, under the Solicitor General’s statement to the Supreme Court in McLaughlin, and, I believe, at least inferentially, the holdings in McLaughlin and all the other subsequent cases, § 2113(d) requires a disclosure of some physical object which is or could reasonably be believed to be a “dangerous weapon or device.” The majority acknowledges in Part I that “at any rate, the prosecution here is unable to cite even one reported case after McLaughlin in which a § 2113(d) conviction of a bank robber, who revealed no physical object, has been sustained merely on the basis that his words and actions were a ‘device.’” Maj. op. at 1138. That statement will no longer be true if the prosecutor follows the majority’s advice, retries Ray, and he is convicted.
The majority also points out that most bank robberies are accomplished by threatening words or gestures or both and to treat them as satisfying § 2113(d) would be to merge it with § 2113(a) and subsume the latter. Notwithstanding this clear, and to me necessary, distinction between the two statutory sections, the majority proceeds in Part II of its opinion to disagree with the Solicitor General, McLaughlin and all the courts since McLaughlin, and hold that, on the same evidence which all the decided cases hold and which the majority holds in Part I would not sustain a conviction under § 2113(d), a jury could reasonably believe from Ray’s threats and actions that, although he exhibited nothing anyone thought was a weapon, he possessed one and, accordingly, could convict him under § 2113(d),
To reach this conclusion; the majority must, in my opinion, contradict itself. In Part I it holds that the trial court’s instruction that the § 2113(d) charge required the government to prove only “that the defendant during the commission of the bank robbery committed acts or said words that would have caused an ordinary person reasonably to expect to die or face serious injury by the defendant’s use of a dangerous weapon or device” was erroneous and requires reversal of the § 2113(d) conviction. The reason, as the opinion states, is because under the decided cases, words and actions, however threatening, are insufficient to sustain a conviction under § 2113(d).
In Part II, however, the majority concludes that the same words and actions may be sufficient if the jury finds from them that the defendant possessed a dangerous weapon or device even though there is no other evidence that he did. This, to me, is legal legerdemain.
It is also inconsistent, as the majority acknowledges in Part I, with all the cases before and after McLaughlin holding that a § 2113(d) conviction cannot be sustained merely on the basis of words and gestures but requires exhibition of some physical object which could reasonably be believed to be a dangerous device.1 Worst of all, it permits blurring if not erasing the clear line between § 2113(a) and § 2113(d) drawn by the Solicitor General and all the cases and which the majority approves in Part I. Holding that, while words and gestures are insufficient to constitute a dangerous device and sustain a conviction under § 2113(d) but, with no more evidence, the same words and gestures may permit a jury to conclude that the defendant possessed and used a gun or other dangerous device is gobbledygook and to all intents and *1144purposes eliminates the line drawn by the Solicitor General and the numerous cases.
The majority seeks to reconcile the holding in Part I that the instruction was erroneous and its conclusion in Part II by suggesting that the erroneous instruction depended on the teller’s perception while in Part II the determination is to be made by the jury. But the erroneous instruction referred not to the teller but to whether the jury found that the defendant “committed acts or said words that would have caused an ordinary person reasonably to expect to die or face serious injury by defendant’s use of a dangerous weapon or device.” (emphasis supplied). I submit that a jury should not find that a defendant used a gun if an ordinary person could not reasonably do so. And the cases, as well as the Solicitor General’s analysis, all directly or inferentially hold that, unless a gun or other apparently dangerous device is exhibited, neither an ordinary person nor a jury can reasonably find that it was used as § 2113(d) requires.
The Sixth Circuit in United States v. Perry, 991 F.2d 304 (6th Cir.1993), reached the same conclusion:
We emphasize that our conclusion that “use of dangerous weapon” does not include concealed possession of a toy gun comports with the language of the statute. Section 2113(d) enhances the sentence for anyone who, in committing or attempting to commit bank robbery “puts in jeopardy the life of any person by the use of a dangerous weapon....” Thus “use" plainly connotes something more than possession.
Id. at 309 (emphasis supplied). The majority here not only holds that concealed possession is sufficient to constitute “use” but that possession of a gun or other dangerous device may be inferred by a jury from merely words or gestures. In Perry it was undisputed that the defendant possessed a concealed toy gun.
In explaining its reasoning the Sixth Circuit went on to say in Perry:
Congress could have provided for enhanced penalties whenever a gun was “possessed.” Congress did not. Congress could have provided for enhanced statutory penalties whenever the perpetrator of a § 2113(a) or (b) offense caused his victim to fear that the victim’s life might be endangered because of a dangerous weapon. Congress did not. Neither the plain language of the statute nor case law supports an extension of “use of a dangerous weapon” to include the concealed possession of a nongenuine gun.
Id. at 309-10. I agree with that analysis. Concealed possession alone is not “use” under § 2113(d). And if undisputed actual concealed possession is not “use,” possession inferred from words and gestures cannot possibly be. Therefore, I see no reason why we should extend § 2113(d) to mere possession, when Congress did not.
If I understand the majority opinion, the proper instruction to a jury considering a § 2113(d) charge would read something as follows:
The law is clear that you may not convict the defendant under § 2113(d) merely because he said he had a gun or other dangerous device and gestured or acted like he did but never displayed or exhibited any object which looked like or could reasonably have been believed to be a gun or other dangerous object. However, if you are satisfied from his words, actions or gestures that he did have a hidden gun or other dangerous object even though he did not display it, then you may convict him under § 2113(d).
I have the highest regard for the ability of jurors to comprehend the evidence and a court’s instructions as to the law. The law is frequently more of a challenge than the evidence. I submit that to tell a jury they may not convict on mere words and actions and then tell them that they may, is almost certain to confuse them.
Nor do I find the language of § 2113(a) and § 2113(d) to justify, much less compel, the majority’s conclusion in Part II. I agree with the Solicitor General’s statement to the Supreme Court in McLaughlin and the various cases, including Perry, that § 2113(d) does not cover a situation in which a robber approaches a teller and demands money but does not display a weapon, other dangerous device or what could reasonably be believed *1145to be a dangerous device “even if in fact the robber has a concealed weapon.” Brief for the United States at p. 18. McLaughlin (No. 85-5189).
The language of § 2118(d) is explicit that it applies only if the defendant “assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device_” (emphasis supplied). I do not understand how one can be found to have assaulted or put in jeopardy the life of a person by the use of a weapon which he did not possess or one which was concealed and never exhibited at all even if the jury thinks he possessed one.
The majority concludes that “when the defendant has not displayed a dangerous weapon or an ostensibly dangerous one, our decision is that the defendant may nevertheless be convicted under § 2118(d) if he in fact had an actual firearm and used it by threatening others with it.” Maj. op. at 1142 n. 15. I have no difficulty with that statement as a theoretical proposition, but I do with its application. I do not see how a jury can determine, beyond a reasonable doubt, absent any evidence other than statements and gestures, that “he in fact had an actual firearm and used it by threatening others with it.” This approves precisely the kind of speculating which jurors should not do and courts should not permit much less encourage them to do. Yet, since jurors are not omniscient or endowed with divine knowledge, that is exactly what the majority would authorize them to do. The result, of course, is to enhance and lengthen the defendant’s sentence whether or not he did in fact possess and use a firearm or other dangerous device. Like the Solicitor General and all the other courts, I simply do not believe you can be found to have “used” something which is hidden or which you may not even have, notwithstanding the jury’s believing you did possess it.
I also agree with the majority that, from the perspective of the teller, words and gestures may be as forceful or intimidating as a gun. Section 2113(a) clearly covers both. I also agree with the majority that words and gestures may stimulate violent response and put fives in jeopardy. And finally, I agree that if a person possesses a firearm, he has the capacity to inflict harm. I do not agree, however, that a bank robber who says he has a gun or other dangerous device and either has or has not but, in any event, does not “use” it by displaying it in some fashion, can or should be convicted of using it under § 2113(d) even though the jury may be persuaded he possessed it. On the other hand, § 2113(a) is clearly applicable.
The fine drawn by the Solicitor General and all the courts which have considered the distinction between § 2113(a) and § 2113(d) is a good one and should not be blurred or, worse, eliminated. I would simply reverse the conviction under § 2113(d) and remand for resentencing accordingly.
. See United States v. Perry, 991 F.2d 304 (6th Cir.1993); United States v. Wardy, 777 F.2d 101 (2nd Cir.1985), cert. denied, 475 U.S. 1053, 106 S.Ct. 1280, 89 L.Ed.2d 587 (1986); United States v. Cobb, 558 F.2d 486 (8th Cir.1977); United States v. Spedalieri, 910 F.2d 707 (10th Cir.1990); United States v. Medved, 905 F.2d 935 (6th Cir.1990), cert. denied, 498 U.S. 1101, 111 S.Ct. 997, 112 L.Ed.2d 1080 (1991); United States v. Cannon, 903 F.2d 849 (1st Cir.), cert. denied, 498 U.S. 1014, 111 S.Ct. 584, 112 L.Ed.2d 589 (1990); United States v. Martinez-Jimenez, 864 F.2d 664 (9th Cir.), cert. denied, 489 U.S. 1099, 109 S.Ct. 1576, 103 L.Ed.2d 942 (1989); United States v. Crouthers, 669 F.2d 635 (10th Cir.1982).