U.S. v. Walters

• Citation: 351 F.3d 159
• Decision Date: 12 November 2003
• Docket Number: No. 02-50874.,02-50874.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brandon L. WALTERS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

351 F.3d 159

UNITED STATES of America, Plaintiff-Appellee, v. Brandon L. WALTERS, Defendant-Appellant.

No. 02-50874.

United States Court of Appeals, Fifth Circuit.

November 12, 2003.

COPYRIGHT MATERIAL OMITTED

Joseph H. Gay, Jr., Mark Randolph Stelmach (argued), Asst. U.S. Attys., San Antonio, TX, for Plaintiff-Appellee.

James Scott Sullivan (argued), San Antonio, TX, for Defendant-Appellant.

Appeals from the United States District Court for the Western District of Texas.

Before JOLLY and WIENER, Circuit Judges, and ROSENTHAL^*, 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 on 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 relation 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 under 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 district court erred 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) 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, First 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 "ruining 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 plane ticket to his home state of Utah.

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 airplane. 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 military 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. A 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 Association" 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 the 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 reported 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 his thirty-day stay at the hotel. Agents searched Walters's hotel room and found a number of items consistent with materials recovered from the office where the bomb had exploded.

Federal agents investigating the site of 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 plug, blue-coated wire, and dental floss used in a "booby-trap" trigger device. Agents determined that the bomb assembly was contained in a box used to store Panasonic batteries and used an explosive charge of black powder found in fireworks. 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.

When law enforcement agents searched Walters's Cactus Hotel 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. Forensic comparison of the items found in Walters's hotel room to those recovered in what remained of McWilliams's office revealed key similarities. The blue-coated wires at each location were seven-strand, 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 of 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 bomb 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 The Anarchist's Cookbook. The book...