United States v. William Stegmeier , 701 F.3d 574 ( 2012 )


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  •                United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 11-3776
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    William Stegmeier
    lllllllllllllllllllll Defendant - Appellant
    ------------------------------
    Second Amendment Foundation; Montana Shooting Sports Association; The Fully
    Informed Jury Association
    lllllllllllllllllllllAmici on Behalf of Appellant
    ____________
    Appeal from United States District Court
    for the District of South Dakota - Sioux Falls
    ____________
    Submitted: October 19, 2012
    Filed: December 13, 2012
    ____________
    Before LOKEN, SMITH, and BENTON, Circuit Judges.
    ____________
    BENTON, Circuit Judge.
    William “Bill” Stegmeier was convicted of harboring a fugitive and providing
    a firearm to a prohibited person after allowing a felon to stay in his recreational
    vehicle. He appeals his conviction for insufficiency of the evidence, improper use of
    a special verdict form, and faulty jury instructions. Stegmeier also contends that the
    firearm conviction violates his Second Amendment rights. Having jurisdiction under
    
    28 U.S.C. § 1291
    , this court affirms.
    I.
    Thomas R. Kelley was convicted on several tax and financial charges. In
    August 2010, he failed to appear for sentencing, becoming a fugitive from justice.
    Kelley asked his friend Stegmeier for a place to stay. Stegmeier permitted Kelley to
    stay in his recreational vehicle, which was parked at Stegmeier’s home in South
    Dakota. As Stegmeier gave Kelley a tour of the RV, Stegmeier told him there was a
    handgun in the closet. Stegmeier said nothing about his permission (or lack thereof)
    to touch or use the firearm.
    A few weeks later, Stegmeier’s company began a project in Minnesota. Kelley
    joined the project as an independent contractor. The two men took the RV to
    Minnesota. Once there, Kelley continued to reside in the RV. To pay Kelley for his
    work on the project, the company secretary made checks out to “Cash,” Stegmeier
    cashed them, and gave the proceeds to Kelley. This arrangement was unique to
    Kelley.
    A company employee testified that Stegmeier showed him a website listing
    Kelley as the number two most-wanted-man in the county. Another employee
    contradicted that testimony. At some point, Kelley moved the RV into a metal shed,
    which he claims was to keep it out of the cold. Through an anonymous tip, authorities
    -2-
    learned Kelley’s whereabouts and arrested him in December 2010.1 Stegmeier
    consented to a search of the RV and disclosed that the closet contained a firearm. The
    police located the gun in a compartment next to the bed, near Kelley’s wallet.
    Stegmeier told police that Kelley “must have moved it.”
    Stegmeier was charged with harboring a fugitive, accessory to failure to appear,
    and providing a firearm to a prohibited person. The government dismissed the
    accessory charge, and a jury convicted Stegmeier on the remaining two counts.
    Stegmeier appeals, arguing that the evidence was insufficient. He also alleges that the
    district court2 erred by using a special verdict form and giving improper jury
    instructions. Finally, Stegmeier invokes his Second Amendment rights.
    II.
    Stegmeier contends that there was insufficient evidence to convict him of
    harboring a fugitive and providing a firearm to a prohibited person. This court
    reviews de novo the denial of a motion for acquittal based on insufficiency of the
    evidence. United States v. Burrage, 
    687 F.3d 1015
    , 1023 (8th Cir. 2012).
    On review, evidence is viewed most favorably to the verdict, giving it
    the benefit of all reasonable inferences. Reversal is appropriate only
    where no reasonable jury could find all the elements beyond a reasonable
    doubt. This court does not weigh the credibility of the witnesses or the
    evidence. The jury has the sole responsibility to resolve conflicts or
    contradictions in testimony, and credibility determinations are resolved
    in favor of the verdict.
    
    Id.,
     quoting United States v. Aldridge, 
    664 F.3d 705
    , 715 (8th Cir. 2011).
    1
    Kelley was convicted for his failure to appear. In a consolidated appeal, this
    court affirmed his convictions. United States v. Kelley, 477 F. Appx. 401 (8th Cir.
    2012).
    2
    The Honorable Lawrence L. Piersol, United States District Judge for the
    District of South Dakota.
    -3-
    A.
    Harboring a fugitive under 
    18 U.S.C. § 1071
     has three elements: “(1) the
    defendant had specific knowledge that a federal warrant had been issued for the
    person’s arrest, (2) the defendant harbored or concealed the person for whom the
    arrest warrant had been issued, and (3) the defendant intended to prevent the person’s
    discovery and arrest.” United States v. Hayes, 
    518 F.3d 989
    , 993 (8th Cir. 2008),
    citing United States v. Hash, 
    688 F.2d 49
    , 52 (8th Cir. 1982) (per curiam).
    Stegmeier characterizes the evidence of his knowledge of Kelley’s fugitive
    status as “slender and contested.” This court does not, however, make credibility
    determinations – those determinations are left to the jury. United States v. Van
    Nguyen, 
    602 F.3d 886
    , 901 (8th Cir. 2010). According to the evidence, in 2010
    Stegmeier knew Kelley was facing criminal tax charges. A coworker testified that
    Stegmeier discovered that Kelley was number two on the county’s most-wanted-list.
    Kelley’s wife testified that while visiting Kelley and Stegmeier, they openly discussed
    that Kelley was on the run. Viewing the evidence most favorably to the verdict, there
    is sufficient evidence that Stegmeier knew of Kelley’s fugitive status.
    Stegmeier asserts that there is no evidence of a physical act, which is required
    to show concealment of the fugitive. United States v. Zerba, 
    21 F.3d 250
    , 252 (8th
    Cir. 1994). Providing the fugitive a place to stay, however, satisfies the requirement
    for physical assistance. United States v. Erdman, 
    953 F.2d 387
    , 391 (8th Cir. 1992).
    While the defendant in Erdman did more than provide a place to stay, this court listed
    that as one fact that the jury could have relied on. See 
    id.
     This court reaffirmed that
    view in Hayes, where the defendant argued that lying to the police was insufficient to
    convict her of harboring. Hayes, 
    518 F.3d at 994
    . This court held that she did more
    than lie: “she continued to provide [the fugitive] a place, or shelter, in which he could
    attempt to avoid apprehension.” 
    Id.
     Stegmeier similarly provided shelter to Kelley.
    -4-
    Further, Kelley’s wife testified that Stegmeier stated he “would hide him” if
    authorities arrived.
    Stegmeier notes that most reported cases of harboring a fugitive involve lying
    to the police, but this is not a requirement. See, e.g., United States v. Hudson, 102 F.
    Appx. 127, 132-33 (10th Cir. 2004) (upholding a harboring conviction absent a
    finding that the defendant lied to the police); United States v. Hill, 
    279 F.3d 731
    , 738
    (9th Cir. 2002) (same); United States v. Green, 
    180 F.3d 216
    , 221 (5th Cir. 1999)
    (same). Specific knowledge of fugitive status, a physical act, and the intent to conceal
    is all that is required. Zerba, 
    21 F.3d at 252
    . Stegmeier gave Kelley a place to stay,
    employed him, accompanied him to Minnesota, and engineered a pay arrangement
    that avoided reporting to the government. There is sufficient evidence to convict
    Stegmeier of harboring a fugitive.
    B.
    Stegmeier believes the evidence was insufficient to convict him of providing
    a firearm to a prohibited person. “It shall be unlawful for any person to sell or
    otherwise dispose of any firearm or ammunition to any person knowing or having
    reasonable cause to believe that such person [is a prohibited person] . . . .” 
    18 U.S.C. § 922
    (d). Prohibited persons include felons and fugitives. 
    Id.
     § 922(d)(1), (2).
    Stegmeier contends that he did not “dispose of” the firearm to Kelley.
    “To dispose of” occurs when a recipient “‘comes into possession, control, or
    power of disposal of a firearm.’” United States v. Monteleone, 
    77 F.3d 1086
    , 1092
    (8th Cir. 1996), quoting Huddleston v. United States, 
    415 U.S. 814
    , 823 (1974). The
    Seventh Circuit questioned this court’s definition in Monteleone, however, on two
    grounds: (1) because Monteleone’s conviction was reversed on other grounds, the
    “dispose of” discussion is dicta; (2) reliance on Huddleston is improper because the
    statute there covered “acquiring” a firearm, not “dispose of” a firearm. United States
    -5-
    v. Jefferson, 
    334 F.3d 670
    , 674 (7th Cir. 2003). The Seventh Circuit then approved
    this definition of “dispose of”: “to transfer a firearm so that the transferee acquires
    possession of the firearm.” 
    Id. at 675
    .
    Under either definition, a recipient’s possession is sufficient proof that a
    defendant disposed of a firearm. Constructive possession is “control over the place
    where the firearm was located, or control, ownership, or dominion of the firearm
    itself.” United States v. Perez, 
    663 F.3d 387
    , 391 (8th Cir. 2011), quoting United
    States v. Cox, 
    627 F.3d 1083
    , 1085 (8th Cir. 2010). Even assuming Stegmeier did not
    give Kelley title or ownership of the firearm, he did give Kelley full, unrestricted
    control over the RV where the firearm was. Stegmeier believes that the district court
    knew the case was weak because there was no evidence that Kelley actually possessed
    the firearm. However, the jury may use circumstantial evidence. Id.; Sera v. Norris,
    
    400 F.3d 538
    , 544 (8th Cir. 2005). It heard evidence that Stegmeier gave Kelley
    access to the entire RV and disclosed the specific location of the firearm. When police
    located it outside of the closet – near Kelley’s wallet – Stegmeier said that Kelley
    “must have moved it.” There is sufficient evidence for the jury to find that Stegmeier
    provided a firearm to a prohibited person.
    III.
    Stegmeier and two amici3 contend that upholding the conviction violates his
    Second Amendment rights. They believe it amounts to “host liability,” whereby hosts
    are guilty of providing a firearm to a prohibited person by inviting them into a home
    that has a gun. This court reviews alleged constitutional errors de novo. United
    States v. Sweeney, 
    611 F.3d 459
    , 473 (8th Cir. 2010). This court need not address
    3
    The Second Amendment Foundation and the Montana Shooting Sports
    Association.
    -6-
    constitutional issues unless required to do so to decide the case. Cochenour v.
    Cochenour, 
    888 F.2d 1244
    , 1245-46 (8th Cir. 1989).
    The Second Amendment guarantees the right to keep a weapon in one’s home,
    especially for the purpose of self-defense. District of Columbia v. Heller, 
    554 U.S. 570
    , 635 (2008). That right is not unlimited. The Supreme Court recognized the
    continued validity of statutes prohibiting felons from possessing firearms. 
    Id.
     at 626-
    27. “Host liability” is not raised by the facts of this case. Stegmeier did not violate
    the statute by merely inviting Kelley into his home. Rather, he gave Kelley control
    of the RV for approximately three months and specifically disclosed the location of
    the firearm.
    Because the facts of this case do not present the issue of host liability, this court
    need not entertain the constitutional implications of that argument. The conviction did
    not violate Stegmeier’s Second Amendment rights.
    IV.
    Over Stegmeier’s objection, the district court used a special verdict form. The
    use of a special verdict form is reviewed for abuse of discretion. United States v.
    Lamoreaux, 
    422 F.3d 750
    , 756 (8th Cir. 2005).
    The firearm charge required the government to prove that Stegmeier disposed
    of a weapon to a prohibited person. 
    18 U.S.C. § 922
    (d). There are four classes of
    prohibited persons – relevant here are (1) felon and (2) fugitive. 
    Id.
     § 922(d)(1), (2).
    The district court sought to ensure that the jury reached unanimity that Stegmeier
    knew Kelley was a felon, and/or unanimity that Stegmeier knew he was a fugitive.
    In addition to so instructing the jury, the district court required the jury to answer
    special interrogatories:
    -7-
    Did you unanimously agree that the defendant knew or had reasonable
    cause to believe that Thomas R. Kelley had been convicted of a crime
    punishable by imprisonment for a term exceeding one year?
    ____ YES           ____ NO
    Did you unanimously agree that the defendant knew or had reasonable
    cause to believe that Thomas R. Kelley was a fugitive from justice?
    ____ YES            ____ NO
    Stegmeier objected to both special interrogatories during and after trial.4 The district
    court denied relief both times. According to the district court, the use of the special
    verdict form was for Stegmeier’s benefit, ensuring that the jury reached specific
    unanimity and clarifying its findings for appeal.
    The use of a special verdict form is generally disfavored in criminal cases.
    Gray v. United States, 
    174 F.2d 919
    , 923-24 (8th Cir. 1949); United States v. Pierce,
    
    479 F.3d 546
    , 551 (8th Cir. 2007). Special verdict forms are appropriate and effective
    in some circumstances. United States v. Ryan, 
    9 F.3d 660
    , 670-71 (8th Cir. 1993),
    vacated in part on other grounds but reinstated as to the special verdict form, 
    41 F.3d 361
    , 362 (8th Cir. 1994) (en banc).
    Stegmeier is correct that, contrary to the district court’s ruling, the charge in this
    case is not duplicitous. Duplicity occurs when distinct and separate offenses are
    joined together in the same count. United States v. Pietrantonio, 
    637 F.3d 865
    , 869
    (8th Cir. 2011), citing United States v. Nattier, 
    127 F.3d 655
    , 657 (8th Cir. 1997).
    Duplicity is problematic because it “might lead the jury to convict without unanimous
    agreement on the defendant’s guilt with respect to a particular offense.” 
    Id.,
     citing
    Nattier, 
    127 F.3d at 657
    . The firearm count in this case is not duplicitous because it
    alleges one violation of one statute – providing a firearm to a felon can not be charged
    4
    The Fully Informed Jury Association, as amicus, supports this argument on
    appeal.
    -8-
    separately from providing a firearm to a fugitive.5 See United States v. Richardson,
    
    439 F.3d 421
    , 422 (8th Cir. 2006) (en banc) (per curiam) (“Congress intended the
    ‘allowable unit of prosecution’ to be an incident of possession regardless of whether
    a defendant satisfied more than one § 922(g) classification, possessed more than one
    firearm, or possessed a firearm and ammunition.”).
    Duplicitous charges, however, are not the only occasion for a special verdict
    form. A similar concern is present here: unanimity as to a finding of guilt. This case
    is an appropriate circumstance for a special verdict form. As the Ninth Circuit
    explained: “Where a special verdict form requires the jury to determine the occurrence
    of any of a series of acts, each of which is sufficient to constitute the indicted crime,
    the traditional concerns regarding special verdicts are not implicated.” United States
    v. Reed, 
    147 F.3d 1178
    , 1181 (9th Cir. 1998).
    As in Ryan, this court holds that the district court did not abuse its discretion
    by using a special verdict form in this case.
    [T]he questions posed by the judge in the interest of clarity,
    completeness, and avoidance of the retrial of a lengthy case, evidence no
    elements of control or restriction by the court. The judge did not infringe
    upon the jury’s power to freely deliberate, did not require the jury to
    justify its actions, and did not ask “why” the jury arrived at its decision.
    Nor did the court challenge the jury’s power to ignore the court’s
    instructions if it so desired, require the jury to set aside its most valuable
    asset as fact finder (collective common sense), or direct the jury,
    intentionally or unintentionally, to follow a course initiated by the court.
    Ryan, 9 F.3d at 671.
    5
    The risk of truly duplicitous charges may be cured by a limiting instruction, but
    no authority from this court holds that an instruction is the exclusive remedy or that
    a special verdict form would not be permitted. See United States v. Karam, 
    37 F.3d 1280
    , 1286 (8th Cir. 1994) (holding that a limiting instruction cured the danger of a
    duplicitous charge).
    -9-
    V.
    Stegmeier and amicus6 object to two jury instructions. This court reviews the
    district court’s formulation of instructions for abuse of discretion, and reverses only
    if the alleged error was prejudicial. United States v. Mitchell, 
    613 F.3d 862
    , 867 (8th
    Cir. 2010). This court will affirm if the “entire charge to the jury, when read as a
    whole, fairly and adequately contains the law applicable to the case.” United States
    v. Wisecarver, 
    644 F.3d 764
    , 772 (8th Cir. 2011), quoting United States v. Webster,
    
    442 F.3d 1065
    , 1067 (8th Cir. 2006).
    A.
    The first instruction reads:
    ....
    Keep constantly in mind that it would be a violation of your sworn
    duty to base a verdict upon anything other than the evidence received in
    this case and the instructions of the Court. . . .
    Stegmeier contends that this language threatens the jury and prohibits them from
    exercising their right to find a verdict of not guilty on any grounds whatsoever, even
    if those grounds are unreasonable. To the contrary, the language is not overtly
    intimidating or threatening. It does not specify any punishment or direct the jury
    toward one verdict or the other. Stegmeier cites numerous cases holding that the jury
    can disregard instructions and the law, and reach any verdict they wish – even if
    unreasonable. See, e.g., Jackson v. Virginia, 
    443 U.S. 307
    , 317 n.10 (1979). He cites
    no authority, however, holding that a jury should be instructed on that basis, or that
    it is an abuse of discretion to instruct the jury to base the verdict on the evidence and
    instructions in the case. See, e.g., United States v. Scout, 
    112 F.3d 955
    , 961 (8th Cir.
    1997) (jury-nullification instructions not required). “[F]ederal courts have uniformly
    6
    The Fully Informed Jury Association.
    -10-
    recognized the right and duty of the judge to instruct the jury on the law and the jury’s
    obligation to apply the law to the facts . . . .” United States v. Drefke, 
    707 F.2d 978
    ,
    982 (8th Cir. 1983) (per curiam).
    Further, to warrant reversal, Stegmeier must prove prejudice. Mitchell, 
    613 F.3d at 867
    . Here, the instruction was not prejudicial. The instruction was beneficial
    to Stegmeier because it directed the jury to look at the evidence presented, thereby
    ignoring speculation, conjecture, or pre-conceived notions.
    The district court did not abuse its discretion by giving this instruction.
    B.
    The second instruction reads:
    ....
    If both of these elements have been proved beyond a reasonable
    doubt as to the defendant, then you must find the defendant guilty of the
    crime of Providing a Firearm to a Prohibited Person; otherwise you must
    find the defendant not guilty of the crime.
    ....
    Stegmeier believes that “can” or “may” should replace the first “must” because a jury
    can find a defendant not guilty on any ground it wishes. This court previously
    rejected that argument. United States v. Kroh, 
    915 F.2d 326
    , 335 (8th Cir. 1990) (en
    banc). Stegmeier contends that Kroh is not applicable because the review was only
    for plain error. The language of Kroh rebuts that argument. See 
    id.
     (“We find that the
    instructions as given constitute no error of any kind.”) (emphasis added). In any
    event, this court subsequently reaffirmed that Kroh forecloses Stegmeier’s argument.
    United States v. Moore, 
    149 F.3d 773
    , 779 n.4 (8th Cir. 1998). The logic from Kroh
    applies here: the language in the instruction does not usurp the jury’s role.
    -11-
    The district court did not abuse its discretion by giving this instruction.
    *******
    The judgment of the district court is affirmed.
    ______________________________
    -12-
    

Document Info

Docket Number: 11-3776

Citation Numbers: 701 F.3d 574, 2012 U.S. App. LEXIS 25460, 2012 WL 6197744

Judges: Loken, Smith, Benton

Filed Date: 12/13/2012

Precedential Status: Precedential

Modified Date: 11/5/2024

Authorities (32)

United States v. Van Nguyen , 602 F. Supp. 3d 886 ( 2010 )

United States v. Salvatore G. Monteleone , 77 F.3d 1086 ( 1996 )

United States v. Velita Hash A/K/A Georgann Shepherd , 688 F.2d 49 ( 1982 )

United States v. Patricia King Hill , 279 F.3d 731 ( 2002 )

United States v. Rowland F. Zerba, Jr. , 21 F.3d 250 ( 1994 )

United States v. Dale Lynn Ryan , 41 F.3d 361 ( 1994 )

United States v. Wisecarver , 644 F.3d 764 ( 2011 )

United States v. Pietrantonio , 637 F.3d 865 ( 2011 )

United States v. Paul M. Drefke, United States of America v.... , 707 F.2d 978 ( 1983 )

UNITED STATES OF AMERICA, PLAINTIFF—APPELLEE v. CHRISTOPHER ... , 422 F.3d 750 ( 2005 )

United States v. Correy Jefferson , 334 F.3d 670 ( 2003 )

98-cal-daily-op-serv-5342-98-daily-journal-dar-7493-united-states-of , 147 F.3d 1178 ( 1998 )

Jackson v. Virginia , 99 S. Ct. 2781 ( 1979 )

Huddleston v. United States , 94 S. Ct. 1262 ( 1974 )

United States v. Ronald R. Erdman , 953 F.2d 387 ( 1992 )

United States of America, Plaintiff-Appellee-Cross-... , 180 F.3d 216 ( 1999 )

United States v. William D. Pierce, United States of ... , 479 F.3d 546 ( 2007 )

United States v. Eldon Gene Nattier, United States of ... , 127 F.3d 655 ( 1997 )

Bobbie E. Cochenour v. Josephine Kay Cochenour J. William ... , 888 F.2d 1244 ( 1989 )

Gray v. United States , 174 F.2d 919 ( 1949 )

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