* District Judge of the Southern District of Texas, sitting

by designation. United States Court of Appeals

Fifth Circuit



## FILED

November 12, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 02-50874

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

V.

BRANDON L. WALTERS,

Defendant-Appellant.

Appeals from the United States District Court

for the Western District of Texas

Before JOLLY and WIENER, Circuit Judges, and ROSEN THAL, * District

Judge.

ROSENTHAL, District Judge:

On July 31, 2001, Air Force officer Janet McWilliams opened a

package addressed to her. It exploded when opened, causing severe

injuries. The government charged defendant Brandon Walters with

making and sending the bomb. Evidence at trial showed that Walters

blamed McWilliams for his recent discharge from the Air Force on2

mental health grounds. A jury convicted Walters on all five counts

charged in the indictment. The conviction included two counts

under 18 U.S.C. § 924(c)(1) for using a destructive device during

and in relat ion to two crimes of violence, one for assaulting a

federal officer and one for damaging a federal building. The judge

imposed a life sentence, mandatory for a second or subsequent

conviction unde r section 924(c)(1). 18 U.S.C. § 924(1)(C)(ii).

Walters raises three arguments on this appeal: (1) the

district court erred in admitting into evidence the title and

portions of a book on explosives; (2) the district court erred in

failing to find a violation of the government’s obligation timely

to disclose exculpatory evidence and in failing to grant Walters a

continuance based on late disclosure; and (3) the distr ict court

erre d in sentencing Walters based on two convictions under 18

U.S.C. § 924(c)(1) arising from a single use of a single

destructive device.

This court finds no merit to Walters’s first two challenges to

his convictions. As to the third challenge, this court concludes

that under this circuit’s decision in United States v. Phipps

, 319

F.3d 177 (5th Cir. 2003), the district court erred in sentencing

based on two convictions under section 924(c)(1). Accordingly, we

affirm the convictions; vacate the sentences imposed for the

section 924(c)(1) counts; and remand for resentencing. On remand,

the government is to elect which of the two section 924(c)(1)3

counts is to be dismissed and Walters is to be resentenced on the

remaining count.

I. Background

On May 8, 2001, Brandon Walters joined the United States Air

Force and reported to the Lackland Air Force Base in San Antonio,

Texas. Walters had eight years of experience as an electronics

technician in the United States Navy. Walters came to Lackland to

take a course in electronics. Walters exhibited inappropriate and

bizarre behavior to the personnel manager, F irst Sergeant Janet

McWilliams, and to students. Based on her own observations and on

reports from students, McWilliams recommended that Walters receive

a mental health evaluation to assess his fitness for duty. Walters

reacted by telling McWilliams that she and the students who

complained about him were “in big trouble” because “there was

nothing wrong with him.”

A military psychiatrist diagnosed Walters as having a

narcissistic personality disorder, declared him “potentially

dangerous,” and recommended his discharge from the Air Force.

Walters was heard denouncing the people who were “ru ining his

career,” including McWilliams. On June 15, 2001, McWilliams and

her supervisor met with Walters at the medical facility to deliver

his discharge package. Seven days later, Walters received his

discharge papers and a one-way pl ane ticket to his home state of

Utah.4

Walters was “extremely irate, disrespectful, [and]

threatening” at this meeting. A nurse who witnessed the meeting

reported that Walters told McWilliams that “she was no one, she

could not control him.” When McWilliams demanded that Walters

return his military identification, he refused and claimed to have

lost it. As McWilliams left the room, Walters warned her to

“beware, beware.” Hospital personnel overheard Walters declaring

that McWilliams “was just scared because she messed up and she

should be scared because he wasn’t going anywhere” and that “he

would

. . . set a bomb off on the airplane just so that he would

let the First Sergeant know that she could not control him

anymore.”

On June 23, 2001, Air Force officers escorted Walters to the

airport for his Utah flight. The officers informed Walters that he

was not allowed back on the base and that his picture would be

posted at the entrance gates. Walters refused to board the

airp lane. He ran from the officers, throwing his ticket into a

trash can . Later that same day, Walters checked into the Cactus

Hotel in San Antonio, Texas, using what the hotel owner believed to

be a mi litary identification card. Walters padlocked his hotel

door and refused to permit anyone to enter, including the cleaning

staff. During his thirty-day stay at the hotel, Walters asked a

desk clerk where he could purchase fireworks. Another clerk heard

firecrackers exploding in Walters’s room on several occasions. A5

hotel guest observed Walters taking out his own trash, wearing

latex rubber gloves.

On July 30, 2001, a Lackland instructor saw an individual in

civilian clothes, whom he later identified as Walters, walking down

the hall of a classroom building. Walters ignored the instructor’s

greeting. Later that day, a student found a brown paper package

the size of a shoe box, addressed to “First Sergeant Jan

McWilliams,” in the restroom of the same classroom building. The

return address read “First Sergeants A ssociation” of Clearmont,

Idaho. The student gave the package to his supervisor, who placed

it in intra-base mail for delivery.

McWilliams received the package the following day and opened

it in her office. She had just enough time to observe “coins,

metal objects, and wires” when th e package exploded. McWilliams

saw her own hands and fingers flying off. She lost both hands and

sustained second- and third-degree burns. McWilliams remained

conscious and called out for help. When responders asked

McWilliams who could have “possibly done this,” McWilliams

identified Walters.

Law enforcement agents went to the Cactus Hotel on August 1,

2001 and caught Walters as he attempted to run out the back door.

Agents found the military identification Walters had report e d

missing in his bag. The owner of the Cactus Hotel told agents that

on the day of the bombing, Walters had watched the news on the

television in the hotel lobby, something he had not done during his6

thirty-day stay at the hotel. Agents searched Walters’s hotel room

and found a number of items consistent with material s recovered

from the office where the bomb had exploded.

Federal agents investigating the site o f the explosion

recovered items that enabled experts to reconstruct the bomb and

describe its design and components. The items recovered included

part of a Panasonic battery box, two fragments of a steel bottle,

two nickels, part of a battery, a capacitor, an end cap for an

automobile dome lightbulb, an epoxy pl ug, blue-coated wire, and

dental floss used in a “booby-trap” trigger device. Agents

determined that the bomb assembly w as contained in a box used to

store Panasonic batteries and used an exp losive charge of black

powder found in firew orks. The powder was contained in a steel

bottle and engaged a firing chain that used a green fireworks fuse,

a battery, the circuit-board portions from a disposable camera, and

the end cap of an automobile dome lightbulb. A gray epoxy was used

to make the bomb. Upon explosion, the charge propelled the coins

outward to act as shrapnel. Surgeons removed some of the coins

from McWilliams.

W hen law enforcement agents searched Walters’s Cactus Hot e l

Room, they discovered coins lying on the bed, blue-coated wire, an

empty Phillips-brand automobile dome light box, and a pair of

rubber gloves with pieces of epoxy attached. Agents also recovered

a “Leatherman” multi-purpose tool and a soldering iron. Remnants

of melted solder were recovered from the carpet. Forensic7

comparison of the items found in Walters’s hotel room to those

r ecovered in what remained of McWilliams’s office revealed key

similarities. The blue-coated wires at each location were sevenstrand, 26-gauge tin-copper wire manufactured by the same Japanese

company. Marks on the steel bottle fragments recovered from the

bomb site were consistent with the marks made by the Leatherman

tool found in Walters’s hotel room. Steel filings taken from the

blade of the Leatherman tool and from the carpet in Walters’s hotel

room matched the metallic composition of steel filings taken from

McWilliams’s office

– all the filings were 19% chromium, 73% iron,

and 8% nickel. Microscopic examination of the epoxy recovered from

Walters’s Leatherman tool and latex gloves and the epoxy from the

bomb site revealed no differences.

Federal agents also searched Walters’s grandmother’s Utah

home, where Walters had lived from October 2000 to May 2001.

Officers found an automobile registered under Walters’s name in the

backyard. Walters’s grandmother told agents that a work area in

the basement was “Brandon’s area.” In that part of the basement,

the agents discovered remnants of hundreds of firecrackers, bottle

rockets, and other fireworks, as well as ammunition. Agents also

found a timing device, wire, wire cutters, batteries, transistors,

a roll of solder, and pieces o f circuit board from a disposable

camera. Agents found a broken lightbulb with exposed bridge wires.

At trial, an agent explained that materials to make a package bomb8

can readily be obtained by breaking the glass out of a lightbulb

and using the wires as a fusing system.

Law enforcement agents also searched Walters’s mother’s Utah

home. In that house, the agents recovered a book entitled T he

Anarchist’s Cookbook. The book in part described how to make

explosive devices. Walters’s name was written on the inside cover.

In a superseding indictment, the gov ernment charged Walters

w ith: (1) assault on a federal officer with a deadly weapo n, in

violation of 18 U.S.C. § 111 (Count One); (2) use of a destructive

device in a crime of violence (assault on a federal officer with a

deadly weapon), in violation of 18 U.S.C. § 924(c) (Count Two); (3)

damaging a federal building with explosives, in violation of 18

U.S.C. § 844(f) (Count Three); (4) use of a destructive device in

a crime of violence (damaging a federal building with explosives),

in violation of 18 U.S.C. § 924(c) (Count Four); and (5) possession

of an unregistered destructive device, in violation of 26 U.S.C.

§ 5861(d) (Count Five).

On May 28, 2002, almost a month before trial, prosecutors

wrote a letter to Walters’s defense counsel a bout an individual

named William Bott, who had worked at the base. In the letter, the

government stated that Bott had told a coworker that he had thought

of hiding a bomb in a men’s restroom at Lackland. The letter

disclosed Bot t’s current home address and telephone number and

added that Bott was in Virginia at the time of the bombing. The1 Section 924(c) provides that “[i]n the case of a second or

subsequent conviction under this subsection, the person

shall

. . . if the firearm involved is a machine gun or destructive

device, or is equipped with a firearm silencer or firearm muffler,

be sentenced to imprisonment for li fe.” 18 U.S.C.

§ 924(c)(1)(C)(ii).

9 government attached a copy of a telephone interview with Bott, in

which he denied making any bomb threats. Walters objected to the

disclosure as untimely and asked for a continuance. The court did

not grant the motion.

Before trial, the government filed a notice of intent to use

evidence under Rule 404(b) of the Federal Rules of Evidence. The

trial court ruled, over Walters’s objection, that the government

could introduce the title of The Anarchist’s Cookbook

, the page on

which Walters’s name appeared, and the chapter that dealt with

making certain types of bombs. In the instructions to the jury,

the court provided a limiting instruction on “other bad act”

evidence.

At trial, a jury convicted Walters on all counts. The

district court sentenced Walters to serve 262 months on Counts One,

Three, and Five, to run concurrently; 360 months on Count Two, to

run consecutively; and life in prison on Count Four, as a mandatory

sentence for a second conviction under 18 U.S.C. § 924(c)(1). 1

Walters filed a timely notice of appeal.

On appeal, Walters argues that the district court erroneously:

(1) admitted into evidence the title and redacted content of The

Anarchist’s Cookbook ; (2) failed to find a Brady violation in the10

governmen t’s untimely disclosure of Bott’s statement and denied

Walters a continuance to investigate it; and (3) per mitted dual

convictions under section 924(c)(1) for a single use of a

destructive device.

This court finds that the trial judge did not err in admitting

parts of The Anarchist’s Cookbook or in denying a continuance.

This court also concludes that under recent case law decided in

this circuit, the district court did err when it sentenced Walters

based on two convictions under section 924(c) for a single use of

a single destructive device. Under this recent case authority, the

sentences for the section 924(c) counts are vacated and this case

is remanded for resentencing on the section 924(c)(1) count

remaining after one of the section 924(c)(1) counts is dismissed.

II. Analysis

A. Admission of The Anarchist’s Cookbook

Walters argues that the district court erred in admitting into

evidence both the title and a chapter from T he Anarchist’s

Cookbook . The government offered the evidence under Federal Rule

of Evidence 404(b), which provides:

Evidence of other crimes, wrongs, or acts is

n ot admissible to prove the characte r of a

person in order to show action in c onformity

therewith. It may, however, be admissible for

other purposes, such as proof of motive,

opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or

accident.11

F ED

. R. E VID

. 404(b). Extrinsic evidence must satisfy two criteria

for admission under Rule 404(b): (1) it must be relevant under

Federal Rule of Evidence 401 to an issue other than the defendant’s

character; and (2) it must have probative value that substantially

outweighs its prejudicial impact under Federal Rule of Evidence

403. U nited States v. Beechum, 582 F.2d 898, 911-13 (5th Cir.

1978) (en banc). This court reviews the admission of evidence

under Rule 404(b) for abuse of discretion. U nited States v.

Grimes

, 244 F.3d 375, 383 (5th Cir. 2001). Although this review is

“necessarily heightened” in crimi nal cases, U nited States v.

Anderson

, 933 F.2d 1261, 1268 (5th Cir. 1991), abuse of discretion

is on ly reversible if a defendant can demonstrate prejudice.

United States v. Coleman , 78 F.3d 154, 156 (5th Cir. 1996).

The government contends that the only portions introduced from

The Anarchi st’s Cookbook were relevant to show that Walters knew

how to make bombs similar to the bomb that injured McWilliams.

Walt ers responds that two categories of differences between the

government’s theory against him and the c ontents of the book

diminish its relevance: Walters asserts that the type of bomb used

in this case was very different from the ex plosive devices

discussed in the book, and that the government’s theory as to the

motivation for the bombing

– revenge for a private wrong

– was very

different from The Anarchist’s Cookbook’s anti-government rhetoric.

Walters contends that differences so diminish the relevance of the

book that the prejudicial impact of the title and the sections of2 The government did not take the position at trial that T he

Anarchist’s Cookbook could be introduced as intrinsic evidence

. “Intrinsic evidence does n ot implicate Rule 404(b), and

‘consideration of i ts admissibility pursuant to Rule 404(b) is

unnecessary.’” Coleman , 78 F.3d at 156 (quoting United States v.

Garcia

, 27 F.3d 1009, 1014 (5th Cir. 1994)). Evidence qualifies as

intrinsic when it is “inextricably intertwined” with evidence of

the crime c harged, is a “necessary preliminary” to the crime

charged, or both acts are part of a “single criminal episode.”

United States v. Williams

, 900 F.2d 823, 825 (5th Cir. 1990). Such

evidence is admissible to complete the story of the crime by

providing the context of events. C oleman, 78 F.3d at 156; see

United States v. Royal, 972 F.2d 643, 647 (5th Cir. 1992) (finding

intrinsic evidence admissible so that the factfinder may evaluate

all the ci rcumstances under which the defendant acted). Because

the government did not offer the evidence as intrinsic, this court

analyzes its admission under Rule 404(b).

12 the chapter that included discussions o f explosions of large

buildings

– an emotionally charged topic after September 11, 2001

–

outweigh the minimal probative value.

The governmen t gave notice before trial that it would offer

portions of The Anarchist’s Cookbook as extrinsic evidence under

Rule 404(b). C oleman

, 78 F.3d at 156. 2 The trial court carefully

limited what the government could show the jury, admitting only the

title for identification purposes, the inside cover page on which

Walters’s name was handwritten, and one chapter dealing with making

“explosives and booby traps.” The trial court found that, so

limited and with the proper instruction, the admitted portions of

The Anarchist’s Cookbook met the requirements of Rule 404(b). This

court agrees.

The first issue is the extent to which the admitted portions

were relevant under Rule 401 to an issue other than Walters’s3 Rule 401 provides, “‘Relevant evidence’ means evidence

having any tendency t o make the existence of any fact that is of

consequence to the determination of the action more probable or

less probable than it would be without the evidence.” F E D

. R. E VID

. 401.

13 character. 3 The only chapter admitted discussed how to assemble

components of explosive devices similar to components found in the

Lackland bomb. The chapter discussed how to obtain and handle

black powder, which was the explosive used in the bomb. The

chapter also discussed “tamping,” a tec hnique for channeling the

power of the explosive used, a technique used on the black powder

in the Lackland bomb. The chapter outlined a “booby-trap”

triggering mechanism wit h the same sequence, power sources,

conductors, and switches used in the Lackland bomb. The chapter

that the trial court admitted was relevant to show Walters’s

knowledge and ability to make a bomb using such components. The

admission of the title and inside cover page containing Walters’s

handwritten name were relevant to identify the sour ce of the

chapter and its relationship to Walters. See Coleman , 78 F.3d at

156; Royal , 972 F.2d at 647.

Walters’s challenge to relevance based on temporal remoteness

fails. The evidence at trial showed that Walters had been in Utah

as recently as three months before the bombing and had visited his

mother’s home, where the book was found, as recentl y as March or

April of 2000. The relatively short time between Walters’s last

visit to the place where the book was found and th e date of the4 Rule 403 provides that “[a]lthough relevant, evidence may

be excluded if its probative value is substantially outweighed by

the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of

time, or needless presentation of cumulative evidence.” F E D

. R

.

E VID . 403.

14 bombing does not diminish the probative value of the evidence. S ee

Grimes

, 244 F.3d at 385 (holding that a one-year gap between an

extrinsic act and the charged offense does not remove relevance and

stating that a ten-year gap would be too large).

Walters argues that the unduly prejudicial impact of The

Anarchist’s Cookbook substantially outweighed its probative value,

in violation of Rule 404(b) and Rule 403. 4 Walters understates the

probative value of the excerpts admitted and overstates their

prejudicial impact. The similarity between specific components of

the Lackland bomb and those described in The Anarchist’s Cookbook

chapter admitted made the evidence highly probative. The

government redacted the book to admit relevant portions and placed

no emphasis on the title or the contents unrelated to the

components similar to the bomb at issue. The district court gave

the jury a limiting instruction governing its consideration of this

evidence. The instruction told the jurors that they could consider

the evidence “onl y for the limited purpose of determining the

identity of the defendant as the person who constructed the

destructive device used to commit the crimes alleged in the

indictment, or for the limited purpose of deciding whether the

defendant acted in preparation for constructing th e destructive5 The fact that the district court’s limiting instruction did

not specifically mention the Cookbook does n ot diminish its

mitigation of prejudicial effect. S ee, e.g., United States v.

Paul

, 142 F.3d 836, 844 (5th Cir. 1998) (a general limiting

instruction is sufficient to dispel prejudice). The trial judge’s

instruction at the conclusion of trial was sufficient. U nited

States v. Peterson , 244 F.3d 385, 394 (5th Cir. 2001); s ee also

United States v. Cihak , 137 F.3d 252, 258 & n. 3 (5th Cir. 1998)

(limiting instruction presumably given at conclusion of trial cured

prejudice from admitted 404(b) evidence); United States v. Holley

, 23 F.3d 902, 912 (5th Cir. 1994) (“[R]epetition is not a

requirement of a definite cautionary instruction.”).

15 device used to commit the crimes alleged in the indictment, or for

the limited p urpose of deciding whether the defendant had the

knowledge to constr uct the destructive device used to commit the

crimes alleged in the indictm ent.” Given the redaction of

irrelevant portions of the Cookbook , the absence of any effort by

the prosecutor to emphasize t he title or create an unduly

prejudicial impact, and the judge’s instruction limiting the jury’s

use of the evidence, this court concludes that admission was proper

under Rule 404( b). See United States v. Gonzalez

, 328 F.3d 755,

760 n. 2 (5th Cir. 2003) (a limiting instruction mitigates

potential prejudicial effect). 5

Walters is not the first defendant found in possession of The

Anarchist’s Cookbook or similar “how-to” manuals to challenge their

admission under Rule 404(b). In U nited States v. Rogers

, 270 F.3d

1076 (7th Cir. 2001), the defendant was charged with possession of

an unregistered firearm after agents discovered a homemade silencer

for a semiautomatic pistol in his garage. I d. at 1077. At trial,16

the defendan t contended that he thought the device was an

“extension” of the pistol and had no idea that it functioned as a

silencer. Id. at 1081. The district court admitted the entirety

of The Anarchist’s Cookbook into evidence. The prosecutor treated

the title as significant and read to th e jury not only the parts

about building silencers, but other portions as well. I d. The

appellate court found error in “some respects.” I d. Although

portions of the Cookbook were relevant, the trial court should have

limited the portions admitted to those pertinent to the charged

offense. I d. The appellate court nonetheless affirmed the

conviction because of the weight of the evidence against the

defendant, noting that “[t]here is no problem . . . in presenting

to the jury written m aterial in the defendant’s possession that

shows how to commit the crime, for this makes it more likely that

the defendant rather than someone else was culpable.” Id.

In United States v. Ellis

, 147 F.3d 1131 (9th Cir. 1998), the

defendant was charged with illegally possessing stolen explosives.

Id. at 11 33. The government introduced T he Anarchist’s Cookbook

based on evidence that the defendant had borrowed it a month before

the explosives were reported stolen. I d. at 1134. The district

court admitted the entire Cookbook into evidence. On appeal, the

court found error because “prejudicial books and manuals

. . . are

normally inadmissible when they are ‘entirely unnecessary to

support t he charge. . . .’” I d. at 1135 (internal citation6 S ee United States v. Moore

, 997 F.2d 30, 35 n. 8 (5th Cir.

1993) (assault on a federal officer with a deadly weapon); United

States v. McKinnon

, 2003 WL 22079497, *2 (N.D. Ca. 2003) (damaging

a federal building with explosives); Coleman , 78 F.3d at 157 n. 1

(quoting United States v. Harris

, 25 F.3d 1275, 1278 (5th Cir.

1994)) (use of a firearm during a crime of violence); United States

v. Pri ce , 877 F.2d 334, 338 (5th Cir. 1989) (possession of an

unregistered firearm).

17 omitted). Intent was not an element of the possession offense

charged in Ellis

, making the Cookbook unn ecessary to support the

charge. The prejudicial impact of the introduction of a

“ revolutionary” text and the absence of any probative value m ade

admission erroneous under Rule 404(b). Id. at 1135-36.

In the present case, in contrast to Ellis

, intent is an

element of the offenses charged. 6 In the present case, in contrast

to Rogers

, the trial court limited the Cookbook portions admitted,

allowing the jury to see only the chapter containing the

description of bui lding explosives with features similar to the

bomb Walters allegedly assembled. The portions of the C ookbo o k

pertinent to making a bomb with features similar to the one that

exploded at the base were relevant to show Walters’s knowledge and

ability to make such a device. See United States v. Stotts , 176

F.3d 880, 890-91 (6th Cir. 1999) (bomb-making books in defendant’s

residence admitted to show that an explosion at a suspected

methamphetamine lab was from a device intended to be destructive

and not merely an accidental result of chemicals combining); United

States v. Salameh , 152 F.3d 88, 111 (2d Cir. 1998) (possession of18

documents detailing how to construct bombs provided circumstantial

proof of “familiarity with bomb making and the use of explosives”

and had probative v alue in light of the similarity to the actual

bomb); United States v. For d , 22 F.3d 374, 381 (1st Cir. 1994)

(book seized from drug defendant’s home ent itled “Secrets of

Methamphetamine Manufacture” proper ly admitted to show that the

defendant was a drug dealer as opposed to someone who possessed

drugs for personal use). The careful approach in this case

distinguishes it from Rogers , in which the prosecutor treated the

title, The Anarchi st’s Cookbook , as significant and read to the

jury portions of the book in addition to those relating to the

charged offenses. S ee Rogers

, 270 F.3d at 1081 (warning that

admission should be limited to those portions of the book relevant

to the charge and the prosecutor may not suggest that a defendant

should be c onvicted because he owned such seditious literature);

see also Grimes

, 244 F.3d at 385 (suggesting that the government

redact narratives describing crimes of a different nature than

those charged).

In addition, the weight of the evidence against Walters

prevents him from demonstrating prejudice. S ee Rogers

, 270 F.3d at

1081 (affirming conviction despite certain errors in the

introduction and use of The Anarchist’s Cookbook at trial, based on

the weight of the evidence against the defendant). Walters had a

history of education and training in bomb making and repeatedly19

expressed animosity toward the bomb victim. After the bombing,

agents found in Walters’s room a number of components also found in

the exploded bomb. The amount and strength of the evidence against

Walters does not support reversal based on the admission of the

Cookbook

.

B. The Timing of the Government’s Disclosure

Walters contends that the government’s delay in disclosing the

identity of Bott, another possible suspect, until approximately one

month before trial violated Brady v. Maryland

, 373 U.S. 83 (1963).

Walters urges reversal on the ground that the court abused its

discretion in refusing to grant Walters a continuance to

investigate this evidence. Under B rady v. Maryland

, the government

must disclose material, exculpatory evidence to a defendant. Id.

at 87. To establish a B rady violation, a defendant must show that:

(1) the prosecution suppressed evidence; (2) the evidence was

favorable to the petitioner; (3) the evidence was material either

to guilt or punishment; and (4) nondiscovery of the allegedly

favorable evidence was not the result of a lack of due diligence.

Graves v. Cockrell , 343 F.3d 465, 475 (5th Cir. 2003).

The record does not support Walters’s contention of a B rady

violation. The government disclosed the evidence nearly four weeks

before trial. S ee Lawrence v. Lensing

, 42 F.3d 255, 257 (5th Cir.

1994) (“Because we find that the existence and contents of the

[evidence] were disclosed at trial, we hold that the prosecution20

did not suppress any evidence.”); U nited States v. McKinney

, 75 8

F.2d 1036, 1049-50 (5th Cir. 1985) (holding same). The complaint

that the governme nt had the information for some time before

disclosing it to Walters does not, in itself, show a Brady

violation. “If the defendant received the material in time to put

it to effective use at trial, his conviction should not be reversed

simply because it was not disclosed as early as it might have and,

indeed, should have been.” McKinney, 758 F.2d at 1050. Walters

had almost a month after the government disclosed the information

about Bott to investigate and put it to “effective use” at trial.

At trial, defense counsel was able to put evidence before the jury

that other students had made threats about bombs or violence at the

Lackland base. S ee United States v. O’Keefe, 128 F.3d 885, 898-99

(5th Cir. 1997) (holding that the disclosure of reports after

cross-examination had begun did not violate Brady where the defense

was able to review the reports for a few days and use them to

conduct an effective cross-examination); United States v. Randall

,

887 F.2d 1262, 1269 (5th Cir. 1989) (holding that the government’s

d isclosure of a witness’s drug addiction during trial did not

violate Brady due process where the defendant had ample time to

cross-examine the witness on the issue); McKinney

, 758 F.2d at 1050

(finding no Brady violation where the defendant was able to use

documents dis closed during trial in an effective crossexamination); United States v. Anderson , 574 F.2d 1347, 1352 (5th21

Cir. 1978) (finding the disclosure of e xculpatory grand jury

testimony during trial was timely provided under Brady ).

The record also fails to demonstrate that the information the

government allegedly delayed in disclosing was material, as Brady

requires. “[E]vidence is material ‘if there is a reasonable

probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different.’”

Strickler v. Greene

, 527 U.S. 263, 280 (1999) (quoting Kyles v.

Whitley , 514 U.S. 419, 433-34 (1995)). In light of the fact that

Bott denied making the statement attributed to him and left the

state before the bombing occurred, the record does not support

Walters’s arg ument that the information the government disclosed

about Bott was material. S ee Graves

, 343 F.3d at 4 76 (quoting

United States v. Agurs

, 427 U.S. 97, 109-110 (1976)) (“The mere

possibility tha t an item of undisclosed information might have

helped the defense, or might have affected the outcome of the

trial, does not e s tablish ‘materiality’ in the constitutional

sense.”).

Walters also argues that the district court erred by refusing

to grant a continuance to enable him further to investigate Bott as

a “viab le suspect.” A trial court’s decision to grant or deny a

continuance is reviewed for abuse of discretion. U nited States v.

Hopkins

, 916 F.2d 207, 217 (5th Cir. 1990). In reviewing the

denial of a continuance, this court looks to the “totality of the22

circumstances,” including (a) the amount of time available; (b) the

defendant’s role in shortening the time needed; (c) the likelihood

of prejudice from d enial; (d) the availability of discovery from

the prosecution; (e) the complexity of the case; (f) the adequacy

of the defense actually provided at trial; and (g) the experience

of the attorney with the accused. I d

. ; United States v. McDonald

,

837 F.2d 1287, 1289 (5th Cir. 1988). Walters had previously

requested, and been granted, two continuances. Walters’s defense

team, which included the resources of three attorneys and a hired

investigator, had nearly four weeks after the government disclosed

the information at issue to contact, interview, or subpoena Bott at

the address and telephone number the government provided. Walters

has not shown why he was unable to do so, nor argued that Bott was

unavailable. See United States v. Olaniyi-Oke , 199 F.3d 767, 771

(5th Cir. 1999) (requiring a party requesting a continuance based

on the unavailability of a witness to demonstrate (1) the exercise

of due diligence to obtain the witness’s attendance; (2) that the

witness would tender substantial favorable evidence; (3) that the

witness will be available and willing to testify; and (4) that

denial would materi ally prejudice the movant). The prosecution

provided Walters with Bott’s identity, contact information, travel

movements, and statements a bout his presence at Lackland.

Walters’s counsel presented an effective defense, eliciting

admissions from government wi tnesses that other students had7 Section 924(c)(1) provides in relevant part:

(A) [A]ny person who, during and in relation

to any crime of violence or drug trafficking

crime . . . uses or carries a firearm, or

who, in furtherance of any such crime,

possesses a firearm, shall, in addition to

the punishment provided for such crime of

violence or drug trafficking crime . . .

(iii) if the firearm is discharged, be

sentenced to a term of imprisonment of not

less than 10 years.

(B) If the firearm possessed by a person

convicted of a violation of this

subsection– . . .

(ii) is a machinegun or a destructive device,

23 threatened violent acts at the Air Force base. With a cushion of

nearly four weeks and little new information available, Walters has

not demonstrated a likelihood of prejudice from the denial of the

continuance. S ee Hopkins

, 916 F.2d at 218 (finding no prejudice

from the denial of continuance to obtain document s where the

document’s contents wer e either previously known, available from

other sources, or cumulative). No abuse of discretion is shown on

this record. S ee United States v. Kelly, 9 73 F.2d 1145, 1148-49

(5th Cir. 1992) (finding no abuse of discretion in denial of

continuance under similar circumstances). Neither the timing of

the government’s disclosure of the information about Bott, nor the

trial court’s denial of a continuance aft er the disclosure,

supports reversal.

C. The Multiple Convictions under Section 924(c)(1)

Walters challenges his con victions on two counts charging

violations of 18 U.S.C. § 924(c)(1), 7 which resulted in a mandatoryor is equipped with a firearm silencer or

firearm muffler, the person shall be

sentenced to a term of imprisonment of not

less than 30 years.

(C) In the case of a second or subsequent

conviction under this subsection, the person

shall– . . .

(ii) if the firearm involved is a machine gun

or destructive device, or is equipped with a

firearm silencer or firearm muffler, be

sentenced to imprisonment for life.

24 life sentence, as an improper application of the statute. Although

both offenses occurred simultaneously with the single explosion of

a single bomb, Count Two of the government’s indictment charged

Walters with the use of the bomb to assault a federal officer,

while Count Four charged him with the use of the same bomb to

damage a federal building. The district court, in accordance with

section 924(c)( 1)(B)(ii), sentenced Walters to 360 months under

Count Two. Following that conviction, and in accordance with

section 924(c)(1)(C)(ii )

, the court sentenced Walters to life

imprisonment under Count Four (as a second conviction subsequent to

the Count Two conviction for use of the bomb). Walters primarily

relies on United States v. Phipps

, 319 F.3d 177 (5th Cir. 2003), in

which this court held that section 924(c)(1) “does not authorize

multiple convictions for a single use of a single firearm based on

multiple predicate offenses.” Id. at 183. Walters contends that

because the charged offenses involved only a single use of a single

dest ructive device, only one of the section 924(c)(1) counts of

conviction can stand. The government attempts to limit Phipps to25

its facts and urges the application of United States v. Salameh

,

261 F.3d 271, 279 (2d Cir. 2001), in which the Second Circuit

permitted convictions for two counts under section 924(c)(1), one

alleging the transportation and one alleging the use and carrying

of a bomb set off in the World Trade Center in 1993.

In Phipps

, the defendants abducted a woman in her car at

gunpoint, gave the gun to an accomplice, and drove off. They

repeatedly raped the victim before she escaped. 319 F.3d at 180-

81. Defendants were convicted of kidnapping and carjacking. The

jury also convicted the defendants for two counts under section

924(c)(1), one charging use of a firearm during and in relation to

the kidnappin g and one charging use of a firearm during and in

relation to the carjacking. Id. at 181. On appeal, defendants

urged that they could not be convicted twice under section

924(c)(1) for a single use of a single firearm, despite their

convictions for two predicate offenses. The court began the

analysis with the sta tutory language defining the “unit of

prosecution” under section 924(c)(1), holding that it criminalized

the “use, carriage, or possession of a firearm during and in

relation to a predicate offense.” I d. at 186. The court concluded

that the statute did not unam biguously authorize multiple

convictions for a s ingle use of a single firearm during and in

relation to multiple predic ate offenses. The court instead

concluded that the “language allows for only as many counts as26

there are uses of the firearm.” I d. at 186. The court reasoned

that although the defendants had committed two crimes (kidnapping

and carjacking), th ey used the gun only once – in “put[ting] the

firearm to [the victim’s] head”

– and could be convicted of only a

single section 924(c)(1) violation. Id.

The Phipps court analyzed two earlier cases holding that

section 924(c)( 1) does not authorize multiple convictions for a

single use of a single firearm based on multipl e predicate

o ffenses. In U nited States v. Wilson

, 160 F.3d 732 (D.C. Cir

.

1998), the court held that a defendant convicted of first degree

murder and killing a witness, in violation of 18 U.S.C. § 1512,

could be convicted of only a single violation of section 924(c)(1)

because the defendant used a firearm only once. Id. at 749. The

S econd Circuit reached a similar conclusion in U nited States v.

Finley

, 245 F.3 d 199 (2d Cir. 2001). The F inley defendant was

convicted of both drug distribution and drug possession with intent

to distribute after an undercover officer purchased drugs from the

defendant and found additional drugs in a subsequent search of the

defendant’s home. I d. at 202. The officer also found a gun in the

home. I d. The defendant was charged with and convicted of one

count for using or carrying a firearm during and i n relation to

drug possession and one count for using or carrying a firearm

during and in relation to drug distribution. I d. at 201. Agreeing

with “the widely- shared view that [section 924(c)]’s text is27

ambiguous,” the Sec ond Circuit reversed the defendant’s second

conviction under the statute. I d. at 208. The court reasoned that

“[t]he statute does not clearly manifest an intention to punish a

defendant twice for continuous possession of a firearm in

furtherance of simultaneous predicate offenses consisting of

virtually the same conduct.” Id. at 207.

In Salameh

, however, the Second C ircuit considered and

rejected a similar challenge to two section 924(c)(1) convictions,

one for the use or carriage of a firearm in relation to the

underlying offense of assaulting a federal officer, and one for the

use or carriage of a firearm in relation to the underlying offense

of conspiracy to bomb buildings and property and to transport

explosives in interstate commerce. 261 F.3d at 277. In finding

that the defendants’ section 924(c) convictions did not rest on a

single use of a single explosive device, the court emphasized two

facts. First, the indictment charged separate uses of the

explosive device: transportation of the bomb from one state to

another and use of the bomb by detonating it in the World Trade

Center. I d. at 279. These separate uses distinguished W ilson and

Finley

, in which the defendants were charged with only a single use

of a single firearm. Id. The Salameh court expressly noted that

“we are not here faced with a situation in which defendants’

§ 924(c) convictions rest on a single ‘use’ of the firearm in

question.” I d. Second, Congress had separately criminalized28

transportation of a bomb, making it an offense independent of a

later detonation. I d. ; see 18 U.S.C. § 844(d). “Given the

separate, and separ ately culpable, nature of defendants’ use and

carriage of the bomb,” the multiple convictions under section

924(c)(1) could stand. Id.

In the present case, in contrast to Salameh

, the jury did not

have to find th at Walters both transported and used the bomb to

convict him of the predicate offenses charged in the indictment.

In contrast to the indictment in Salameh

, the government did not

charge Walters with separate offenses consisting of different

actions relating to the bomb. Unlike Salameh , the government did

not allege transportation of the explosive device as a “separate,

and separately culpable” offense from the use of the device. Like

the Phipps

, Wilson

, and Finley de fendants, Walters used a single

explosive device on a single occasion, during and in relation to

the separate predicate offenses of assaulting a federal officer and

damaging a federal building. Under the binding precedent of

Phipps

, Walters can be convicted of only a single section 924(c)(1)

conviction for his single use of the single bomb. P hipps

, 319 F.3d

at 183; see Finley , 245 F.3d at 207; Wilson , 160 F.3d at 749.

The government argues that Phipps is distinguishable because

of the “unusual fact that defendants gave the firearm to [the

accomplice] immediately after using it.” I d. at 188. The

government argues that this “voluntary restriction” on defendants’29

use of the firearm made Phipps unique. In that case, the voluntary

transfer of the firearm at an early point in the defendants’

criminal rampage was important because it limited how they “used”

the firearm under section 924(c)(1). That limit precluded a

sentence based on two convictions under section 924(c)(1), despite

the fact that the defendants accomplished dual criminal purposes,

carjacking and kidnaping. Similarly, the fact that Walters used a

single bomb on a single occasion precludes sentencing based on two

counts of conviction under section 924(c)(1), despite the fact that

Walters accomplish ed the dual criminal purposes of assaulting a

federal officer and damaging a federal building.

In Phipps

, th e court held that “‘[t]he proper remedy for

multiplication of punishment is to vacate the sentences on all the

counts and remand for resentencing with instructions that the count

elected by the government be dismissed. The defendant[s are] then

to be resentenced.’” P hipps

, 319 F.3d at 189 (quoting United

Stat es v. Privette , 947 F.2d 1259, 1263 (5th Cir. 1991)). This

court vacates the sentences for the two 9 24(c)(1) counts and

remands for resentencing, with instructions that after the

government chooses which of the section 924(c)(1) counts to

dismiss, either Count Two or Count Four, the district court will

resentence Walters on the remaining section 924(c)(1) count.

III. Conclusion

The challenges to the convictions based on the district court’s30

evidentiary rulings and denial of a continuance are without merit.

Because this circuit has recently held th at punishment cannot be

based on multiple section 924(c)(1) convictions for a single use of

a single firearm to accomplish multiple predicate offenses, this

court VACATES the section 924(c)(1) sentences and REMANDS for

resentencing consistent with this opinion.