Prepare a memorandum of law based upon the following:

Statement of Assignment: You have been asked to prepare a memorandum of law to answer whether the Defendant used a deadly weapon pursuant to the below statute. You are in Arizona applying federal law because this is a federal issue.

Facts: On March 10^th 2013, Mr. Smith robbed the American Bank. He entered the bank and approached a bank teller by pulling out a wooden replica of a 9mm Barretta handgun. He robbed the bank. The replica was carved from pine with dark walnut wood stain. A hole was drilled in the "barrel" to make it look real. The bank employee believed it was a real Barretta. The teller at the next window was fairly certain that it was fake. No one else observed the replica.

Law:

18 U.S.C. Section 2113(a) and (d). The relevant portions of the statute provide:

(a) Whoever, . . . by intimidation, . . . takes . . . any property or money or any other thing of value belonging to . . . a bank. . . .Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.

(d) Whoever, in committing . . . any offense defined in subsections (a) . . . assaults any person, or puts in jeopardy the life of any person by use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.

In the case of United States v. Martinez-Jimenez, the court held that a dangerous weapon includes a replica if it appears to be a genuine weapon to those present at the scene. United States. v. Martinez-Jimenez, 864 F.2d 664 (9th Cir. 1989).