                     UNITED STATES COURT OF APPEALS
                          for the Fifth Circuit

                  _____________________________________

                               No. 93-5313
                  _____________________________________

                        UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                    VERSUS

           DAVID JAMES SOLOMON, a/k/a DAVIS JAMES CORMIER,

                                                      Defendant-Appellant.

       ______________________________________________________

            Appeal from the United States District Court
                for the Western District of Louisiana
       ______________________________________________________
                          (August 10, 1994)

Before WISDOM, DAVIS, and DUHÉ, Circuit Judges.

PER CURIAM:

       Defendant-Appellant David James Solomon was convicted of four

counts of possession with intent to distribute crack cocaine, two

counts of using a gun in relation to drug trafficking, and two

counts of being a felon in receipt of firearms.              We affirm the

convictions.

             I.   Evidence of "Use" of Firearm (Count VI)

       Solomon first argues that the evidence fails to show that he

knowingly used the revolver found in a poolhall office in relation

to any drug trafficking crime as is required for a conviction under

§ 924(c)(1) (Count VI).        Thirty-five minutes after an informant

made   a   controlled   buy   of   crack   cocaine   from   Solomon   in   the

poolhall, police entered the poolhall office and discovered a

revolver, bullets, crack cocaine, and money all within two steps of
each other.   The office was at the rear of the poolhall, which in

turn was behind a hair salon.   There was no evidence that Solomon

had entered the office itself when making the sale.       When the

police arrived Solomon fled the premises, was apprehended nearby,

and had the purchase money in his pocket.

     Solomon disavows any connection with the gun or even with the

office, arguing that the evidence does not therefore support an

inference that he used the gun in relation to drug trafficking.

     We hold that the evidence regarding the quantity of crack sold

to the informant sufficiently connects Solomon to the crack cache

in the office and to the nearby gun.    That Solomon actually sold

crack and fled the premises showing consciousness of guilt is no

longer disputed. Considering that no additional crack was found on

Solomon's person or elsewhere in the premises, the jury could have

reasonably inferred that his source for the drug transaction was

the drug cache, which was close to the firearm.      This evidence

establishes Solomon's control over the drugs, regardless of who

controlled the business.1   See United States v. Thompson, 700 F.2d

944, 952 (5th Cir. 1983) (recognizing that constructive possession

1
   Solomon contends that under United States v. Onick, 889 F.2d
1425 (5th Cir. 1989), the Government must show dominion and control
over the premises to show constructive possession of the weapon.
Onick recognized the principle that we do not lightly impute
dominion and control to a person found in another person's house.
Id. at 1429. Assuming, without deciding, that the same principle
would apply to control of business premises, we find sufficient
evidence to support an inference of Solomon's dominion and control
over things in the office.     Though Solomon's brother signed as
lessee of the premises, Solomon himself negotiated the lease and
had the right to come and go as he pleased. Accordingly, even
under an Onick analysis, sufficient evidence suggests Solomon's
knowing use of the gun in relation to the drug offense.

                                 2
may be sufficiently proved by either ownership, dominion, or

control over the drugs themselves, or dominion over the premises in

which the drugs are concealed).      This connection to the drugs and

the   nearby   gun   provides   sufficient   evidence   to   support   the

conviction for use of a firearm in relation to drug trafficking.

See United States v. Molinar-Apodaca, 889 F.2d 1417, 1424 (5th Cir.

1989) (to show "use" of the firearm, the Government need only prove

that the gun was available to defendant to provide protection in

connection with drug trafficking).

    II.   Evidence of "Receipt" of Firearms (Counts III and VII)

      Solomon also argues that because possession is necessary to

"receipt,"2 the conviction for being a felon who "received" the

revolver should also fail (Count VII).         Having found sufficient

evidence to establish Solomon's possession of the revolver, we

reject this argument.

      Solomon also challenges both of his "receipt" convictions on

the basis that the Government failed to prove when or where Solomon

received both firearms.         In addition to the revolver in the

poolhall incident (Count VII), Solomon was convicted of being a

felon in receipt of a firearm based on a pistol found during a

vehicle stop on Interstate 10 (Count III).       Both of these receipt

convictions require proof that he received a firearm which had been

shipped in interstate commerce while he was a convicted felon.          18

U.S.C. § 922(g).

      Defendant challenges the sufficiency of the evidence that he

2
    See Ball v. United States, 470 U.S. 856, 862 (1985).

                                    3
took possession of these firearms after committing the predicate

felony, that the receipt of the firearm occurred within the statute

of limitations, and that he received the firearms within the venue

of the district court.

     As   for   the      evidence   that       Solomon    took   possession       after

committing   the    predicate       felony,     we   note    that   the    auto    stop

incident occurred in 1988 and the poolhall incident in 1991.                        The

Government offered an armed robbery conviction of Solomon in 1981

to show that Solomon was a felon when he received both firearms.

Also, he was in prison))and therefore not in possession of either

firearm))in 1981.        Even if he possessed the guns before his term of

imprisonment,      his    taking    repossession         after   serving    his   time

constituted "receipt."         See United States v. Robbins, 579 F.2d

1151, 1153-54 (9th Cir. 1978) (defendant's regaining possession of

his gun constituted receipt).              Accordingly, the evidence amply

established that Defendant took possession of the guns after

committing the predicate felony.

     Defendant      also     challenges        the   sufficiency      of     evidence

establishing that receipt of the firearms occurred within the five-

year statute of limitations for non-capital offenses (18 U.S.C. §

3282), and that he received the firearms within the venue of the

district court.       Because Solomon made no objection at the close of

all the evidence, his objection to venue is waived.                        See United

States v. Black Cloud, 590 F.2d 270, 272 (8th Cir. 1979) (if

indictment contains proper allegation of venue, venue objection is

preserved for appeal if made at close of Government's case); see


                                           4
generally 2 Charles A. Wright, Federal Practice and Procedure § 306

(2d ed. 1982).

     The defendant's objection based on the statute of limitations

is also waived by the defendant's failure to raise and develop it

at trial.   United States v. Arky, 938 F.2d 579, 581-82 (5th Cir.

1991), cert. denied, 112 S.Ct. 1268 (1992).   Accordingly, we do not

address the merits of the alleged error based on § 3282.     Arky, 938

F.2d at 581 (rejecting the position that the statute of limitations

is a jurisdictional question which can be noticed for the first

time on appeal).

         III.    Jury Charge; Receipt (Counts III and VII)

     Counts III and VII charged Solomon with "receipt" of a firearm

by a felon, but the court instructed the jury on "possession" of a

firearm by a felon.    Although Solomon lodged no objection to this

charge, we may review the issue under the plain error doctrine.

United States v. Mize, 756 F.2d 353, 355 (5th Cir. 1985).    Reversal

is required if the court's charge "constitutes a constructive

amendment of the indictment," that is, if "the jury [wa]s permitted

to convict the defendant upon a factual basis that effectively

modifies an essential element of the offense charged."         United

States v. Young, 730 F.2d 221, 223 (5th Cir. 1984).

     "Receipt" is knowingly taking possession.     United States v.

Clark, 741 F.2d 699, 703 (5th Cir. 1984).       The only essential

discrepancy between the instructions and the indictment is the

element that defendant while a felon actually took possession

rather than simply remained in possession.     See United States v.


                                  5
Martin, 732 F.2d 591, 592-93 (7th Cir. 1984) (venue is not an

essential element); United States v. Winship, 724 F.2d 1116, 1124-

25 (5th Cir. 1984) (failure to instruct on venue is reversible only

when trial testimony puts venue in issue and the defendant requests

the instruction); United States v. Bowman, 783 F.2d 1192, 1197 (5th

Cir. 1986)    (time   the   offense   was    committed      is    not   essential

element).

     The evidence of Solomon's constructive possession of the

firearms     which    had   travelled      in        interstate    commerce     is

circumstantial evidence of his prior receipt.              Martin, 732 F.2d at

592 (one cannot possess a firearm without receiving it); see also

United States v. Beverly, 750 F.2d 34, 36 (6th Cir. 1984); United

States v. Craven, 478 F.2d at 1329, 1336-37 (6th Cir.), cert.

denied, 414 U.S. 866 (1973).              With the stipulation that the

firearms were not manufactured in Louisiana and had travelled in

interstate commerce (4 R. 115) and the uncontroverted evidence that

Solomon was in jail in 1981, the evidence precludes any possibility

that Solomon possessed the firearms as a felon without having

received them as a felon.      Cf. Ball, 470 U.S. at 862 n.9 (a felon

may possess a firearm without receiving it if he manufactured the

gun himself); Craven, 478 F.2d at 1336-37 (one cannot possess a

firearm     without   having   received         it     unless     the   possessor

manufactures it himself).

     United States v. Ylda, 653 F.2d 912, 914 (5th Cir. Unit A Aug.

1981), held that a jury charge requiring proof of receipt or of an

agreement    to   receive   money   did    not   constructively         amend   the


                                      6
indictment    for    receipt,    because   the   evidence   contained    no

suggestion    that   defendant    merely   agreed   to   receive,   without

actually receiving the money.       Similarly the evidence contained no

suggestion that Solomon possessed without having earlier received

the firearms. Additionally, as in Ylda, the district court charged

the jury that it was to decide whether Solomon was guilty or not

guilty and that he was being tried "only for the specific offenses

alleged in the indictment."        6 R. 64; cf. Ylda, 653 F.2d at 915.

Also, the district court provided the jury with copies of the

indictment.   See 6 R. 66; cf. Ylda, 653 F.2d at 915.        Accordingly,

the court's charge resulted in no uncertainty about whether the

jury convicted Solomon of an offense not charged in the indictment.

See Ylda, 653 F.2d at 915.       The discrepancy between the jury charge

and the words of the indictment was therefore "merely another of

the flaws in trial that mar its perfection but do not prejudice the

defendant."   Ylda, 653 F.2d at 914; Young, 730 F.2d at 223 (quoting

Ylda); see also Mize, 756 F.2d at 355 (if no constructive amendment

occurred, reversal is warranted only if discrepancy prejudices

substantial rights of defendant).3




3
   This case involves no possible prejudice to Defendant by his
suffering cumulative punishment for convictions for both receipt
and possession. Cf. Ball, 470 U.S. at 862-64 (requiring district
court to vacate either conviction); Martin, 732 F.2d at 592-93
(requiring that either receipt conviction or possession conviction
be vacated because the offenses are the same); United States v.
Burton, 629 F.2d 975, 977-78 (4th Cir. 1980) (holding that
cumulative punishment for convictions for felon's possession and
receipt of the same gun is not authorized where possession was
incidental to receipt), cert. denied, 450 U.S. 968 (1981).

                                      7
          IV.    Prosecutorial Statement (Counts I and II)

     Solomon notes that he possessed a small enough quantity (7.8

gr.) of drugs when arrested from the car that the district court

charged the jury on simple possession as well as distribution for

that count (Count I).         A simple possession conviction on Count I

would have eliminated the related conviction for use of a firearm

in relation to drug trafficking (Count II).                 See § 924(c)(2)

(limiting definition of "drug trafficking crime" to felonies).

Solomon argues that a misstatement by the prosecutor prevented the

jury from returning the verdict of simple possession on Count I and

acquitting on Count II.

     The officers in the auto-stop incident ordered Solomon out of

the car for a patdown.         Solomon handed the driver a bundled T-

shirt, explaining, "[H]ere, hold this while they search me."            The

shirt blew open revealing a pouch containing crack cocaine.             The

prosecutor argued during closing that actual distribution occurred

when Solomon handed the T-shirt to the driver.

     Solomon did not object to the statement, so we review only for

plain error.     United States v. Blankenship, 746 F.2d 233, 238 n.1

(5th Cir. 1984).     Plain error is "an error so obvious that our

failure   to    notice   it    would   seriously   affect    the   fairness,

integrity, or public reputation of [the] judicial proceedings and

result in a miscarriage of justice." United States v. Fortenberry,

914 F.2d 671, 673 (5th Cir. 1990), cert. denied, 499 U.S. 930

(1991).

     The error, if any occurred, is not so obvious.           We can reverse


                                       8
only if, considering the remark in the context of the entire trial,

the argument "seriously affected the fairness of the proceeding and

resulted in a miscarriage of justice."            United States v. Knezek,

964 F.2d 394, 400 (5th Cir. 1992).          Based on our review of the

record,   we   hold   that   the   prosecutor's    statement   regarding   a

distribution did not constitute plain error.

     The judgment of the district court is

     AFFIRMED.




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