concurring in part and dissenting in part:
I respectfully concur in part and dissent in part. Where a defendant threatens to use a dangerous weapon or device, but does not display an object reasonably perceived to be one, I concur that actual possession is required to sustain a conviction under 18 U.S.C. § 2113(d). However, I disagree with the majority that Wolfe’s threats to use a gun, and these threats alone, are sufficient to establish actual possession beyond a reasonable doubt.
Although I agree with the majority that Wolfe’s threats “may be considered by a jury as relevant evidence on the issue of whether Wolfe actually possessed a weapon,” [Majority Opinion at 263], I do not believe that such threats are enough to uphold the verdict in this case. The only “relevant evidence” presented at trial that Wolfe was armed was that he verbally threatened to use a gun and that his hand was in his jacket or coat.1 As noted in the Solicitor General’s brief in McLaughlin v. United States, 476 U.S. 16, 106 S.Ct. 1677, 90 L.Ed.2d 15 (1986), “[r]obbers frequently pass notes to tellers demanding money and suggesting that they are armed, although they may be unarmed.” Brief for the United States at 18, McLaughlin, 476 U.S. 16, 106 S.Ct. 1677, 90 L.Ed.2d 15 (1986) (No. 85-5189), reprinted in Appendix at 179, 188. In the present case, where the only evidence of actual possession is Wolfe’s threats, there is a strong possibili*265ty that he may have been deceiving the teller in an effort to intimidate her. The jury should not be permitted to infer actual possession beyond a reasonable doubt from these threats alone since this “approves precisely the kind of speculating which jurors should not do and courts should not permit much less encourage them to do.” United States v. Ray, 21 F.3d 1134, 1145 (D.C.Cir.1994) (Will, J., concurring in part and dissenting in part).
Furthermore, the majority expresses concern that if it were to adopt the government’s interpretation of the statute, under which words and gestures would constitute the use of a dangerous weapon or device, “the prosecution would be relieved of the burden to prove that the defendant actually had a weapon and would only have to prove that the defendant said he had a weapon.” [Majority Opinion at 261] (emphasis added). Yet, by then holding that the jury can infer possession from mere threats, the majority effectively achieves the same outcome: the prosecution is permitted to establish that the defendant actually had a weapon only by proving that he said he had a weapon.
In addition, the majority’s conclusion produces another result that it seeks to avoid: “circumventing]” the legislation and rendering 18 U.S.C. § 2113(a) “largely superfluous.” [Majority Opinion at 262]. By definition, every violation of § 2113(a) involves the use of “force and violence, or ... intimidation.” 18 U.S.C. § 2113(a). An unarmed robber’s threat to use a weapon establishes this intimidation element. Therefore, the majority’s holding that the same threat alone is sufficient for a jury to infer possession blurs, if not eliminates, the distinction between § 2113(a) and § 2113(d). Indeed, under the majority’s holding, § 2113(a) will now be reserved only for those rare occasions when a robber walks into a bank demanding money, but neither states that he has a weapon nor displays what can be perceived as a dangerous weapon or device.
The hypothetical jury charge crafted by the dissenting judge in Ray to demonstrate the confusion resulting from the Ray majority’s holding aptly illustrates the anomalous result produced by the majority in the present case:
The law is clear that you may not convict the defendant under S 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 S 2113(d).
Ray, 21 F.3d at 1144 (Will, J., concurring in part and dissenting in part).
The District of Columbia Circuit is the only circuit squarely to decide that a jury can infer actual possession solely from a defendant’s threats. See, e.g., Ray, 21 F.3d at 1141. Although other circuit courts have quoted language from Ray with approval, in each of those cases threats were not the only evidence of gun possession. See United States v. Ferguson, 211 F.3d 878, 884 (5th Cir.2000) (additional evidence that defendant had used a gun in several similar robberies and that a gun was found in his apartment); United States v. Jones, 84 F.3d 1206, 1209, 1211 (9th Cir.1996) (additional evidence that defendant abandoned a revolver, holster, and ammunition in a getaway vehicle). Since the Ferguson decision cited in the majority opinion did not rule on the narrow issue presented here and in Ray, Ferguson is inapplicable.
*266Because I believe that there is insufficient evidence to sustain a conviction under S 2113(d), I am also of the opinion that the clearly erroneous jury charge constituted plain error in that it affected the defendant’s substantial rights by misleading the jury on the issue of the defendant’s “use of a dangerous weapon.” Accordingly, I would vacate the judgment and remand for resentencing under S 2113(a).
. Despite the majority's statement that "[t]he act of gesturing with his arm in his jacket pocket is additional evidence” of whether Wolfe was armed, [Majority Opinion at 263], the trial record indicates only that Wolfe’s hand was in his jacket or coat; there was no mention that he "gestured” or that his hand was in his "pocket” (as opposed to any other part of his jacket or coat). See Appendix at 110, 112, 115.