               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-
