                         United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                      __________

                                      No. 02-1816
                                      __________

 United States of America                  *
                                           *
          Petitioner/Appellee,             *
                                           *     On Appeal from the United
          v.                               *     States District Court for the
                                           *     Western District of Missouri
 M. C. Worthon,                            *
                                           *
          Defendant/Appellant.             *
                                      __________

                                 Submitted: November 5, 2002
                                     Filed: January 13, 2003
                                      __________

Before McMILLIAN and SMITH, Circuit Judges, and LONGSTAFF,1 District Judge.
                                       __________


RONALD E. LONGSTAFF, District Judge.

      M.C. Worthon (Worthon) appeals from a March 11, 2002 judgment entered
against him after a jury trial in the district court2 on two counts of Mail Theft by an
Employee.

      1
       The Honorable Ronald E. Longstaff, Chief Judge, United States District
Judge for the Southern District of Iowa, sitting by designation.
      2
      The Honorable Gary A. Fenner, United States District Judge for the
Western District of Missouri.
      Specifically, Worthon argues that the court improperly allowed the trial to
proceed on both counts, rather than forcing election by the government, thus
presenting him to the jury as more culpable than he might have seemed otherwise.
Worthon also argues that the court erred by allowing the introduction of evidence of
prior missing compact discs (CDs), in violation of Rule 404(b) of the Federal Rules
of Evidence.



                                            I.
      Worthon worked for the U.S. Postal Service in Springfield, Missouri, from
September 1987 to April 2001. Beginning in March 2001, the Customer Service
Supervisor of the Springfield, Missouri Main Post Office reported that approximately
15 to 20 post office box customers had complained of parcels missing when they
attempted to retrieve them at the post office. The majority of the losses were reported
on Monday mornings. Worthon had weekend access to the general area where the
post boxes were located.

       During their investigation of the missing parcels, U.S. Postal Inspectors
surveilled the post office box area. On Sunday, April 8, 2001, at approximately 10:30
p.m., two inspectors observed Worthon crushing two small cardboard boxes. They
approached him and discovered that the boxes were addressed to Vickie Gray and
Trish Wallace. The inspectors also discovered that Worthon had a large box with 17
CDs in it. Worthon waived his Miranda rights and was questioned by the postal
inspectors. He admitted that he did not have permission to take the CDs.

      Vickie Gray and Trish Wallace were contacted, and both acknowledged that
they were expecting CDs from Columbia House and BMG Music Companies,
respectively. They had not given Worthon permission to take their CDs. During
further investigation, the inspectors received a pawn shop record report from the
Springfield, Missouri Police Department indicating that Worthon had sold

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approximately 500 CDs and 65 cassette tapes during 1998 and 1999 to Springfield
area pawn shops. The inspectors also obtained payout forms to Worthon from
Springfield area pawn shops indicating that the defendant had sold approximately 250
CDs, 70 cassette tapes, and 14 video tapes during 2000 and 2001.

       On June 27, 2001, the Grand Jury for the Western District of Missouri brought
an indictment against Worthon on two counts of violation of 18 U.S.C. § 1709 (postal
employee knowingly stealing, abstracting, and removing articles from packages): one
count for the package to Vickie Gray and one count for the package to Trish Wallace.

      The district court3 referred pretrial matters to a magistrate judge.4 On August
6, 2001, Worthon moved to dismiss either count one or count two as cumulative
prosecution, violating his constitutional rights. The magistrate judge denied the
motion, reasoning that the appropriate remedy would be for the court to force election
of counts at trial, not before. Worthon did not renew his motion at trial, however.

      In opening arguments at trial, Worthon’s counsel made statements indicating
that Worthon had a defense of mistake of fact, in that he believed the parcels were
intended for discard as trash, and that he was "framed." In its case-in-chief, the
United States introduced evidence of the missing package complaints in order to
support its case that there was no mistake of fact and the defendant was not framed.
Contrary to the government’s assumption, Worthon did not testify on his behalf.
Thus, the anticipated defense never materialized at trial. Worthon now argues that
introducing evidence of the complaints prejudiced his case in the eyes of the jury,
who found him guilty of the charges.


      3
        The Honorable Scott Wright, United States District Judge for the Western
District of Missouri.
      4
       The Honorable James England, United States District Magistrate Judge for
the Western District of Missouri.
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      After the jury’s verdict, the district court sentenced Worthon to five years of
supervised probation and imposed a special assessment of $200.00 payable to the
Crime Victim Fund ($100.00 for each count).

                                            II.
       We will first address the district court’s treatment of the issue of misjoinder of
counts in Worthon’s indictment and trial. This court reviews a district court’s denial
of a timely request to remedy misjoinder as abuse of discretion. United States v.
Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986).

       A “multiplicitous” indictment is one that charges a single offense in multiple
counts and generally is not improper in a well-pleaded indictment. United States v.
Webber, 255 F.3d 523, 527 (8th Cir. 2001). "[W]hether an aggregate of acts
constitutes a single course of conduct and therefore a single offense, or more than
one, may not be capable of ascertainment merely from the bare allegations of an
information and may have to await the trial on the facts." United States v. Universal
C.I.T. Credit Corp., 344 U.S. 218, 225, 73 S.Ct. 227, 231, 97 L.Ed. 260 (1952). Thus,
the magistrate judge was correct in holding that whether the counts are duplicative
could not be decided on the face of the indictment and, rather, must await
determination based on the facts brought out at trial. Worthon failed to renew his
motion either during trial or at the end of trial.

       If a defendant’s motion for severance in pretrial proceedings is denied for lack
of authority, and the defendant fails to renew his motion during trial or during the
post-trial motion period, then the defendant has waived his right to appeal on the
issue of denial of severance. United States v. Luschen, 614 F.2d 1164, 1174-75 (8th
Cir. 1980); United States v. Brim, 630 F.2d 1307, 1310 (8th Cir. 1980); United States
v. Porter, 441 F.2d 1204, 1212 (8th Cir. 1971).




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       Because Worthon did not renew his motion during the appropriate time period,
he has waived his right to seek review by this Court. This Court rejects Worthon’s
argument that the district court should have dismissed one of the counts by its own
motion. As we find the defendant’s failure to make the motion dispositive on this
issue, we need not address the merits of Worthon’s cumulative prosecution argument.
See Brim, 630 F.2d at 1310 (failure to renew motion for severance at close of
government’s case or conclusion of all evidence constituted waiver).

                                         III.
      We next address the district court’s admission of testimony regarding customer
complaints of prior thefts. This court reviews a district court’s evidentiary rulings for
abuse of discretion. United States v. Looking, 156 F.3d 803, 811 (8th Cir. 1998).

      As set forth above, Worthon contends that the district court erred in allowing
evidence of previous thefts and disappearance of items from the post office that were
not proved to be connected to him. To be admissible under Rule 404(b) of the
Federal Rules of Evidence,

      such evidence must meet four requirements: (1) the evidence of the bad
      act must be admissible on a material issue raised; (2) the evidence must
      be similar in kind and reasonably close to the charge; (3) the evidence
      of the other crime or bad act must be clear and convincing; (4) the
      probative value of the evidence must not be outweighed by its prejudice.

United States v. Horvath, 731 F.2d 557, 560 (8th Cir. 1984). We conclude that the
evidence of prior thefts was improperly admitted in that the United States did not
show a connection between the defendant and those other acts by clear and
convincing evidence.

     However, “it is the duty of a reviewing court to consider the trial record as a
whole and to ignore errors that are harmless, including most constitutional

                                           -5-
violations.” Id. (quoting United States v. Hasting, 461 U.S. 499, 509, 103 S.Ct. 1974,
1980, 76 L.Ed.2d 96, 106 (1983)). “The test for harmless error is whether the
erroneous evidentiary ruling had a substantial influence on the jury’s verdict.” United
States v. Oleson, — F.3d —, —, 2002 WL 31557351, at *4 (8th Cir. Nov. 20, 2002)
(No. 02-1432), (quoting Peterson v. City of Plymouth, 60 F.3d 469, 475 (8th Cir.
1995)).

       The introduction of evidence that Worthon had sold over 750 CDs to pawn
shops over a 4-year period, though circumstantial, as well as the eyewitness testimony
of the postal employees, is sufficient evidence of his guilt without the inclusion of the
evidence Worthon sought to exclude. Thus, although the district court erred in
allowing the testimony of prior thefts at the post office, such error was harmless in
light of the overwhelming evidence that Worthon did commit the offenses as listed
in the indictment.

      The decision of the district court is AFFIRMED.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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