                                                                         F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      August 28, 2006
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                    No. 05-5224
          v.                                            (N . D. Okla.)
 ARTHUR EARL TAYLOR,                          (D.C. No. 05-CR-023-001-HDC)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, HA RTZ, and TYM KOVICH, Circuit
Judges.


      Arthur Earl Taylor was charged in a one-count indictment in the United

States District Court for the Northern District of Oklahoma w ith possession of a

firearm and ammunition by a convicted felon, see 18 U.S.C. §§ 922(g)(1). He

was convicted by a jury and sentenced to 188 months’ imprisonment. On appeal




      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
he contends that the indictment was improperly duplicitous because it charged

him with two or more separate offenses in the same count. W e affirm.

I.    B ACKGR OU N D

      M r. Taylor was charged with illegally possessing a firearm and ammunition

between September 19, 2004, and September 30, 2004. The possession began

when M r. Taylor broke into an unoccupied house between September 16 and 19

and stole a gun and ammunition. It ended at about 11 p.m. on the night of

September 29, when he showed police officers where he had secreted the gun.

The police officers had gone to M r. Taylor’s house upon receiving a tip; after

speaking with the officers, M r. Taylor took them to an abandoned car in the

backyard of a nearby house. Inside the car the officers found a bag containing a

gun and two loaded ammunition clips. M r. Taylor afterwards provided the

following written statement to the police:

      About two weeks ago I went into a house which the front door was
      standing wide open and I went in and saw a bunch of stuff scatered
      all over the dining room floor. A couple of days I had broken my
      right little toe and my toe was bothering me realy bad and I took my
      boots off. I then went through the kitchen into the bedroom, my keys
      got caught on the striker plate and broke the ring on my keys were
      hanging from and I layed them on a w eight bench. I look in the
      closet and on the top shelf was a gun box. I grabed it and went out
      the back door w as unlocked and I left.

Aplt. Br. Ex. C.

      During closing arguments at trial the prosecutor distinguished between

actual and constructive possession, stating that “in this instance . . . we know that

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the defendant had both actual possession of the firearm as well as constructive

possession, both the power and ability to exercise dominion and control over the

firearm.” R. Vol. IV at 131. He then cited four instances of actual possession—

when M r. Taylor took the gun from the house, when he took it out of its case,

when he placed it in a bag, and when he placed it in the back of the car in which

it was eventually discovered. The prosecutor stated that M r. Taylor was in

constructive possession of the gun while the gun was in the car.

I.    D ISC USSIO N

      M r. Taylor acknowledges that “possession ‘is a course of conduct; by

prohibiting possession Congress intended to punish as one offense all of the acts

of dominion which demonstrate a continuing possessory interest in a firearm.’”

Aplt. Br. at 7 (quoting United States v. Rivera, 77 F.3d 1348, 1351 (11th Cir.

1996)). But he argues that the prosecutor’s closing statement rendered the

indictment (which had previously been sound) duplicitous because “the

government did not argue that the possession was a single continuous event.

Instead, the government identified differing ‘instances’ or ‘times’ when

possession occurred.” Aplt. Br. at 7. M r. Taylor contends that the “argument

erroneously converted the charge into multiple offenses, contrary to the

requirement that a count charge a single crime.” Id. at 8.

      W e must first decide the standard under w hich to review M r. Taylor’s claim

that the indictment was rendered defective. M r. Taylor admits that he “did not

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raise any objection or contention in district court that the Indictment was

defective.” Id. at 6. But he argues that his claim should be reviewed de novo

rather than under the plain-error standard “[b]ecause the event which ripened the

error occurred at the time of the government’s closing arguments, [so] it was

impossible for the Defendant to file a pre-trial motion to preserve error.” Id. at 9.

W hile this may be true, nothing prevented M r. Taylor from objecting at the time

the alleged error occurred, and he did not do so. W e thus review his claim under

the plain-error standard. See United States v. Phillips, 869 F.2d 1361, 1365 (10th

Cir. 1988). On plain-error review we will reverse the judgment below only if

“there is (1) error, (2) that is plain, which (3) affects substantial rights, and which

(4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.

2005) (en banc).

      W e have previously stated the rationale behind prohibiting duplicitous

indictments:

      The dangers of duplicity are three-fold: (1) A jury may convict a
      defendant without unanimously agreeing on the same offense; (2) A
      defendant may be prejudiced in a subsequent double jeopardy
      defense; and (3) A court may have difficulty determining the
      admissibility of evidence.

United States v. Trammell, 133 F.3d 1343, 1354 (10th Cir. 1998) (internal

quotation marks omitted). M r. Taylor’s argument on appeal points only to the

first danger; he contends that the closing argument was problematic because

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“[t]he jurors’ votes could have been distributed among the various discrete

possession acts identified by the government, without a unanimous consensus that

the Defendant committed a single possession continually during the period

charged in the indictment.” Aplt. Br. at 9-10.

      Even if we assume that M r. Taylor’s claim passes the first two prongs of

the plain-error test, it does not survive the third prong, which requires that his

substantial rights be affected. In order for an error to affect the defendant’s

substantial rights, it “must have affected the outcome of the district court

proceedings.” United States v. Olano, 507 U.S. 725, 734 (1993). The defendant

bears the burden of showing “a reasonable probability that, but for the error

claimed, the result of the proceeding would have been different.” United States v.

Najar, 451 F.3d 710, 721 (10th Cir. 2006) (internal quotation marks omitted).

That is not the case here. There is no reasonable probability that different jurors

based guilt on different possessions by M r. Taylor. The evidence presented to the

jury showed an ongoing possession from the time M r. Taylor stole the gun until

he led police officers to the car containing it. The prosecutor referred to differing

“instances” of possession in the course of clarifying the difference between actual

and constructive possession, not to focus on different evidence supporting several

distinct grounds for conviction. Nor did M r. Taylor’s counsel refer to different

instances of possession in closing argument. Instead he argued that M r. Taylor

never possessed the gun at all. He asserted that the only evidence connecting

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M r. Taylor to the gun was his written statement, and he challenged the

voluntariness of the statement. The jury, while it could have concluded that

M r. Taylor never came into possession of the gun, could have had no rational

basis for distinguishing between different incidents of possession within a

continuing course of possession.

III.   C ON CLU SIO N

       W e AFFIRM the judgment of the district court.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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