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.
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
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 learned Kelley's whereabouts and arrested him in December 2010.
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 court
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).
Id., quoting United States v. Aldridge, 664 F.3d 705, 715 (8th Cir.2011).
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
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. 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 Fed.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.
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, 94 S.Ct. 1262, 39 L.Ed.2d 782 (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 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
Stegmeier and two amici
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, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). That right is not unlimited. The Supreme Court recognized the continued validity of statutes prohibiting felons from possessing firearms. Id. at 626-27, 128 S.Ct. 2783. "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.
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:
Stegmeier objected to both special interrogatories during and after trial.
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 separately from providing a firearm to a fugitive.
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.
Ryan, 9 F.3d at 671.
Stegmeier and amicus
The first instruction reads:
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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (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 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.
The second instruction reads:
The district court did not abuse its discretion by giving this instruction.
The judgment of the district court is affirmed.