In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-2567

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JEFFREY MAHALICK,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 CR 357—Joan B. Gottschall, Judge.

____________

ARGUED APRIL 4, 2007—DECIDED AUGUST 13, 2007

____________

Before KANNE, WILLIAMS, and SYKES, Circuit Judges.

WILLIAMS, Circuit Judge. Jeffrey Mahalick, a convicted

felon, directed his girlfriend to buy a gun and ammunition,

which he kept for several months and then sold to a fellow gang member. After he was caught and charged with

various firearms offenses, he gave his side of the story

to an agent of the Bureau of Alcohol, Tobacco, and Firearms. According to Mahalick, his girlfriend bought the gun

for protection because a woman had recently been assaulted in their building, and because a prowler (called

“the nightcrawler”) had been attacking people in their

neighborhood. The ATF agent made out a report noting

that Mahalick said that the gun was for the couple’s

mutual protection, but did not write down anything
2 No. 06-2567

about the nightcrawler. At trial, however, the agent

testified that Mahalick had said something about the

nightcrawler.

Mahalick perceived in this late revelation several

different types of prosecutorial misconduct—most notably,

a failure to disclose material, exculpatory evidence under

Brady v. Maryland—and after he was found guilty by

a jury, moved for a new trial. The district court denied

the motion and sentenced Mahalick to 92 months’ imprisonment. Mahalick appeals the denial of his motion for a

new trial and also challenges the application of a fourpoint sentencing enhancement for transferring the gun

with reason to believe it would be used in a felony. Finding no error, we affirm.

I. BACKGROUND

Mahalick’s girlfriend, Tiffany Ollie, testified that

Mahalick badgered her several times in the spring of

2003 about getting a gun for safety reasons. She always

said that she felt safe enough, but Mahalick pressed

ahead, filling out an application for a Firearm Owner’s

Identification card on her behalf, instructing her to sign it,

and taking her shopping for pistols at a sporting goods

store. In July 2003, after he found the gun he wanted,

Mahalick filled out a Firearms Transaction Record Form

and directed Ollie to sign it, hand it in to the clerk, and

put down a deposit on the gun. Later, the couple returned

and she completed payment while Mahalick waited in the

car; she brought the gun back to him and it disappeared

in the waistband of his pants, where he wore it for several

months. Ollie testified that she never touched the gun

again. A few days later, Mahalick directed Ollie to buy

bullets.

Several months after that, Mahalick met with Samuel

Foster, his former prison cell mate and a fellow member of
No. 06-2567 3

the Gangster Disciples street gang. Foster, who, like Ollie,

testified for the government, admired Mahalick’s gun and

asked if Mahalick could get one for him. Mahalick refused

but offered to buy Foster bullets, which he again accomplished through Ollie. Later Mahalick offered to sell his

own pistol to Foster. Although Foster initially offered an

eight ball of crack cocaine plus $100 cash, the two eventually agreed on an even $200. The sale took place in a

restaurant parking lot. Several weeks later, Foster was

involved in a shootout after he attempted to collect a debt.

He was found holding the gun after having been shot four

times. During cross-examination, the defense characterized

this incident as an “armed robbery.” Although Mahalick

did not testify at trial, his lawyer argued in opening

statements that Foster had actually stolen the gun from

Ollie.

Mahalick was arrested, and after Detective Dave Jackson gave him Miranda warnings, ATF Special Agent Amy

Conway interviewed him at a Joliet, Illinois police station.

Conway testified that Mahalick explained that the gun

was for mutual protection. The conversation was recorded,

but Conway accidentally erased the tape while trying to

make a copy of it. (She sent the ruined tape to the FBI’s

forensic lab in Virginia, but to no avail.) Mahalick was

indicted on one count of being a felon in possession of a

firearm, 18 U.S.C. § 922(g)(1), one count of causing a false

statement to be made regarding a straw purchase of a

firearm, id. § 924(a)(1)(A), and two counts of selling guns

or ammunition to a convicted felon, id. § 922(d)(1). A jury

found him guilty on all four counts, and the district court

denied his motion for a new trial. This appeal followed.

II. ANALYSIS

Mahalick devotes the majority of his brief to challenging

the denial of his motion for a new trial. We therefore
4 No. 06-2567

review that decision before turning to the sentencing

enhancement.

A. Motion for new trial

In a somewhat strange Brady argument, Mahalick first

contends that the government violated his right to a fair

trial by withholding material and favorable evidence. He

claims that he told Special Agent Conway about the

nightcrawler during his interview. Although Conway

noted in her report that Mahalick wanted the gun for

his and Ollie’s “mutual protection,” she did not mention

from what until cross-examination—and the government

didn’t remind Mahalick that he had told her it was from

the nightcrawler. Mahalick says this disrupted his trial

strategy because he didn’t realize until Conway was on

the stand that her testimony would corroborate his

account. By that point, he contends, it was too late for the

information to be of any use to him (even though it still left

him time to decide whether to testify).

The government violates the rule set out in Brady v.

Maryland, 373 U.S. 83 (1963), when it deliberately or

inadvertently withholds evidence that is material and

favorable to the defense. See United States v. Wilson, 481

F.3d 475, 480 (7th Cir. 2007). But there was no Brady

violation here.

There are many problems with Mahalick’s argument,

and we will discuss only the two most significant. First,

the government cannot be said to have suppressed evidence of what the defendant himself said, “because the

defendant[ ], being part[y] to the conversation, [was]

equally aware. Brady requires disclosure only of exculpatory material known to the government but not to the

defendant.” United States v. Dawson, 425 F.3d 389, 393

(7th Cir. 2005) (emphasis added); Fullwood v. Lee, 290
No. 06-2567 5

F.3d 663, 686 (4th Cir. 2002). Mahalick is essentially

arguing that the government had a duty to tell him what

he had told Conway during their interview. But Mahalick

knows what he said, and if he forgot (and there is no

indication that he did), it was not the government’s job

to remind him.

Equally damning to the Brady argument, the allegedly

withheld evidence is not exculpatory or otherwise helpful to Mahalick. Assuming that Ollie really did buy the gun

for the couple’s mutual protection in fear of the

nightcrawler, in these circumstances that would not be

a defense to the crime of possessing a handgun as a felon.

Courts, including this court, have recognized in this

context a defense of justification, which encompasses

duress, necessity, and self-defense. See, e.g., United States

v. Wheeler, 800 F.2d 100, 107 (7th Cir. 1986), overruled on

other grounds by United States v. Splendorio, 830 F.2d

1382, 1393 (7th Cir. 1987); United States v. Singleton, 902

F.2d 471, 472 (6th Cir. 1990); United States v. Agard, 605

F.2d 665, 667 (2d Cir. 1979). But it is a rare defense, for

“[i]f ex-felons who feel endangered can carry guns, felon-inpossession laws will be dead letters.” See United States v.

Perez, 86 F.3d 735, 737 (7th Cir. 1996). In practice, the

defense has only applied to the individual who in the heat

of a dangerous moment disarms someone else, thereby

possessing a gun briefly in order to prevent injury to

himself, United States v. Panter, 688 F.2d 268, 271-72 (5th

Cir. 1982), or to another, United States v. Newcomb, 6 F.3d

1129, 1138 (6th Cir. 1993); United States v. Paolello, 951

F.2d 537, 542 (3d Cir. 1991). See generally Perez, 86 F.3d

at 736-37.

A key feature of the defense is immediacy. In Panter,

for instance, the defendant was attacked and stabbed in

a bar by a convicted murderer out on bond pending his

appeal. The defendant grabbed a gun from the bar in order
6 No. 06-2567

to save himself. He faced an imminent threat of bodily

harm, and had no recourse to lawful action, for if he had

waited for the police, he would have been stabbed to death

before help arrived. Panter, 688 F.2d at 269. The defendant’s brief possession of the gun therefore outweighed

the greater evil of his being murdered. The requirements

of an imminent threat and a lack of recourse to lawful

action mean that the defense does not apply if there is a

way to avoid committing the felony of possession by a

felon. See Perez, 86 F.3d at 737 (felon who mistook undercover surveillance team for robbers not allowed to take

pistol with him for protection on the way to the bank); see

also United States v. Salgado-Ocampo, 159 F.3d 322, 326-

27 (7th Cir. 1998) (felon who was threatened over the

phone by individuals saying they would come kill him

could have fled or contacted authorities rather than

arming himself). Mahalick, who harbored only a general

fear of living in a dangerous neighborhood, faced neither

an imminent threat nor a lack of lawful options. Convicted

felons are not allowed to keep a gun under the bed in the

event something bad happens. We note in this regard

that the nightcrawler was actually apprehended a month

before Ollie bought the gun, which further undercuts

Mahalick’s claim to fear imminent harm—and his

claim that his mention of the nightcrawler bears any

relevance at all.

In addition to his Brady argument, Mahalick raised two

points in his motion for a new trial, and again urges them

on appeal. Neither requires much discussion. He first

contends that Special Agent Conway misled the grand

jury by failing to disclose “exculpatory” evidence—

Mahalick’s mention of the nightcrawler to her. But as

shown above, this was not exculpatory evidence, and in

any event, the grand jury is an accusatory, rather than an

adjudicatory, body, and so the disclosure of exculpatory

evidence is not required. United States v. Williams, 504
No. 06-2567 7

1 Mahalick was sentenced under the 2005 version of the Guidelines. The enhancement now appears at § 2K2.1(b)(6).

U.S. 36, 51-54 (1992); United States v. Jarrett, 447 F.3d

520, 529-30 (7th Cir. 2006). Second, Mahalick claims that

the government suborned perjury by directing Detective

Jackson—the other officer present during the interview—to testify falsely at trial. (Jackson testified that

Mahalick did not mention the nightcrawler, whereas

Conway testified that he did.) This is a serious accusation,

and one too lightly made by defense counsel in this case.

Mahalick has no evidence whatsoever of prosecutorial

misconduct or perjury, and simply contends that since

Jackson and Conway remembered the interview somewhat differently a year and a half after it took place, the

government must have interfered. But it takes more than

two witnesses’ differing recollections to sustain a perjury

charge. See United States v. Chaplin, 25 F.3d 1373, 1377

(7th Cir. 1994). The district court did not abuse its discretion when it denied the motion for a new trial.

B. Sentencing

Mahalick also challenges the district court’s imposition

of a four-point enhancement under U.S.S.G. § 2K2.1(b)(5).1

That provision calls for an enhanced sentence if the

defendant “transferred any firearm or ammunition

with . . . reason to believe that it would be used or possessed in connection with another felony offense.” We

review the district court’s finding for clear error. United

States v. Caldwell, 423 F.3d 754, 761-62 (7th Cir. 2005).

Mahalick first argues that there was no evidence that

he had reason to believe that the gun he sold to Foster

would be used in another felony offense. We note that

the “[ ]other felony offense” cannot simply be that the
8 No. 06-2567

buyer was a felon and upon purchasing the gun became a

felon in possession of a firearm. See id. cmt. n.15. But here

Foster actually attempted an armed robbery with the

gun that he bought from Mahalick. That fact does not, of

course, shed light on whether at the time he sold the gun

Mahalick had reason to believe that it would be used in a

felony. See United States v. Cicirello, 301 F.3d 135, 141 (3d

Cir. 2002). But it was certainly foreseeable. Mahalick sold

the gun to a gang member, which in itself may be enough

to hold that the district court did not clearly err. See

United States v. Jemison, 237 F.3d 911, 918 (7th Cir.

2001); United States v. Messino, 55 F.3d 1241, 1255-56 (7th

Cir. 1995); see also United States v. Molloy, 324 F.3d 35,

39-40 (1st Cir. 2003). But that’s not all. Foster offered to

pay Mahalick in crack, which shows Foster’s propensity

to commit crimes. See United States v. Wagner, 467 F.3d

1085, 1089 (7th Cir. 2006) (sales of guns in return for

cocaine indicates awareness that guns will be used in

felonies). Indeed, Foster was a convicted felon, and had

done drugs with Mahalick and committed acts of violence

in his presence. The district court noted many of these

points, stating:

[T]here is absolutely no way to imagine that

Samuel Foster had a licit use for this gun. He’s a

bad actor, and he’s a street guy and a gang member, and he does crimes. At a minimum, he was

going to have that gun with him somewhere where

he wasn’t supposed to have the gun with him.

The district court did not clearly err in concluding that

Mahalick had reason to believe the gun would be used

in a felony.

Mahalick also argues that since he was convicted under

18 U.S.C. § 922(d)(1) of selling a gun to a felon, the district court engaged in impermissible double counting by

imposing the U.S.S.G. § 2K2.1(b)(5) enhancement for
No. 06-2567 9

2 “In the case of counts grouped together pursuant to § 3D1.2(d),

the offense level applicable to a Group is the offense level

corresponding to the aggregated quantity, determined in

accordance with Chapter Two and Parts A, B and C of Chapter

Three. When the counts involve offenses of the same general type

to which different guidelines apply, apply the offense guideline that produces the highest offense level.”

transferring a gun with reason to believe that it would be

used in a felony. The two provisions do cover similar

ground, for although selling to a felon and selling to one

who will commit a felony are not exactly the same, felons

are more likely to make illegal use of guns, and so Congress passed § 922(g) in order to keep guns out of their

hands. See Ball v. United States, 470 U.S. 856, 862-63

(1985); United States v. Lane, 252 F.3d 905, 906 (7th Cir.

2001).

But even assuming for argument’s sake that the substantive offense and the enhancement do punish the same

behavior, Mahalick’s four counts of conviction were

grouped under U.S.S.G. § 3D1.2(d) in such a way as to

overcome any fears of double counting. According to the

introductory commentary to Chapter 3, Part D of the

Guidelines, one of the key purposes of grouping is “to

prevent multiple punishment for substantially identical

offense conduct.”

When courts group several counts to which different

guidelines apply, they calculate the base offense level

using the count that would produce the highest offense

level. The other counts essentially fall away for sentencing

purposes. See § 3D1.3(b).2

 This prevents any double

counting between one of several substantive offenses

and an enhancement that punishes similar conduct. See

United States v. Taylor, 248 F.3d 506, 517 (6th Cir. 2001);

United States v. Smith, 196 F.3d 1034, 1036-37 (9th Cir.
10 No. 06-2567

1999). For example, in United States v. Taylor, the defendant was convicted of being a felon in possession of a

firearm and of drug crimes, and he received a sentencing

enhancement for using the gun during the drug crimes.

On appeal, he claimed that the enhancement double

counted his firearms offense. But the firearm and drug

crimes were grouped for sentencing, and since the drug

counts carried the higher offense level, the district court

“effectively disregarded” the firearms offense in calculating

the sentence. 248 F.3d at 517. Therefore any overlap

between the firearm offense and the firearm enhancement had no impact on the sentence. Id.

A similar result obtains here, even though Mahalick’s

firearms offenses all fall under the same guideline,

§ 2K2.1. He was charged with several offenses, including

possession of a firearm by a felon and selling a gun to

another felon. But each offense carried the same base

offense level of 20, and the enhancement would only double

count the offense of selling a gun to a felon. The district

court therefore only needed to pick one of the other

offenses to form the base level. Since all the substantive

offenses carried the same level, they were essentially

interchangeable. Cf. United States v. Massey, 48 F.3d 1560,

1568-69 (10th Cir. 1995) (affirming sentence where one

count produced ex post facto problem but other count did

not and resulted in the same base offense level). Had

Mahalick only been convicted of being a felon in possession, his sentence would be exactly the same and the

enhancement would apply without any problem.

Now, if Mahalick had been charged with multiple gun

sales—say, selling six guns to person X under count one,

and two guns to person Y under count two for a total of

eight guns—then the number of guns would have been

aggregated to come up with a base offense level. See

U.S.S.G. § 3D1.3(b). In that situation, it would be inaccurate to say that a count could fall out because the
No. 06-2567 11

aggregate quantity involved in all the counts would

determine the sentence. See id. § 2K2.1(b)(1). Here,

however, as the district court found, Mahalick’s count for

selling the gun to a felon did not extend his base offense

level, which would have been the same using all of his

counts as it would have been using any one count. The

district court therefore stated that it would consider the

felon-in-possession charge as the substantive offense for

calculating the base offense level. Since the enhancement

did not overlap with that offense, Mahalick was not

punished twice for the same behavior.

III. CONCLUSION

For the reasons stated, we AFFIRM Mahalick’s conviction

and sentence.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-13-07