United States of America, Plaintiff-appellee, v. Joseph Martin Bailie, Defendant-appellant, 145 F.3d 1341 (9th Cir. 1998)

MEMORANDUM^* 

Viewing the evidence in the light most favorable to the prosecution, a rational jury could have found beyond a reasonable doubt that Bailie used a firearm (i.e., a bomb) in relation to a crime of violence. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). The prosecution's evidence included testimony of co-conspirator Hurst that Bailie did participate in the offense and testimony indicating that a pair of pliers found in Bailie's truck had made the cuts on the wire used in the device, that the duct tape used was the same as the tape taken from Bailie's truck, and that the day before the crime Bailie was seen picking up a barrel that matched the description of the one used in the explosive device.

Conviction and punishment for Count 3 (violating 18 U.S.C. § 924(c) (1)) in addition to Counts 1 and 2 (conspiracy and attempt to violate 18 U.S.C. § 844(f)) does not create a double jeopardy problem simply because a single destructive device formed the basis of all three offenses. "Congress intended to punish both the crime of violence effected by the use of the bomb under 18 U.S.C. [§ 844] and, cumulatively, to add the punishment for carrying the bomb in relation to this crime of violence. 18 U.S.C. § 924(c) (1) and (2)." United States v. Mathews 36 F.3d 821, 823 (9th Cir. 1994). See also United States v. Collins, 109 F.3d 1413, 1420 (9th Cir. 1997).

AFFIRMED.