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PHOENIX — A man who held up a Tempe bank cannot be convicted of armed robbery simply because he placed a closed pocket knife on the counter while reaching into his pocket for a bag, a federal appeals court ruled Tuesday.

Judge Wallace Tashima, writing for the unanimous three-judge panel of the 9th Circuit Court of Appeals, said there’s no question but that Neal M. Bain committed a series of bank robberies in order to support his heroin addiction. Bain, without a deal, pleaded guilty in federal court to two counts of bank robbery and one of armed robbery.

Now, however, Bain is challenging the sufficiency of the evidence for the armed robbery charge which stems from the 2014 holdup of the Tempe MidFirst bank.

According to court records, he walked up to a letter, demanded all the money from the bottom drawer and kept demanding $100 bills. He then pulled out a closed folding knife and plastic bag out of his pocket, placing the knife on the counter.

Tashima said Bain never opened the knife to expose the blade nor threatened to use it.

This sends the case back to the trial judge for resentencing.

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