                            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 fel-
low 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 Fire-
arms. According to Mahalick, his girlfriend bought the gun
for protection because a woman had recently been as-
saulted 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’ impris-
onment. Mahalick appeals the denial of his motion for a
new trial and also challenges the application of a four-
point sentencing enhancement for transferring the gun
with reason to believe it would be used in a felony. Find-
ing 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 accom-
plished 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 eventu-
ally 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 Jack-
son 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 evi-
dence of what the defendant himself said, “because the
defendant[ ], being part[y] to the conversation, [was]
equally aware. Brady requires disclosure only of exculpa-
tory 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 help-
ful 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-in-
possession 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 defen-
dant’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 under-
cover 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

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 inter-
view—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 some-
what 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 dis-
cretion 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 pos-
sessed 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


1
   Mahalick was sentenced under the 2005 version of the Guide-
lines. The enhancement now appears at § 2K2.1(b)(6).
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 mem-
    ber, 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 dis-
trict court engaged in impermissible double counting by
imposing the U.S.S.G. § 2K2.1(b)(5) enhancement for
No. 06-2567                                                     9

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 Con-
gress 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 sub-
stantive 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.


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 guide-
line that produces the highest offense level.”
10                                              No. 06-2567

1999). For example, in United States v. Taylor, the defen-
dant 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 enhance-
ment 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 posses-
sion, 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 inac-
curate 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
