                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      __________

      No. 06-4139
      __________

United States of America,             *
                                      *
            Appellee,                 *
                                      *
      v.                              *
                                      *
Kent Raymond Platter,                 *
                                      *
            Appellant.                *

      __________
                                             Appeal from the United States
      No. 07-1134                            District Court for the
      __________                             Northern District of Iowa.


United States of America,             *
                                      *
            Appellee,                 *          [PUBLISHED]
                                      *
      v.                              *
                                      *
Timothy Allen Platter,                *
                                      *
            Appellant.                *

                              ________________

                              Submitted: September 24, 2007
                                  Filed: January 10, 2008
                              ________________
Before WOLLMAN, HANSEN, and RILEY, Circuit Judges.
                      ________________

HANSEN, Circuit Judge.

       A jury found Kent Platter guilty of being both a felon and a drug user in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and (g)(3). Kent was
sentenced to 70 months of imprisonment for one count of illegal possession of a
firearm. In connection with the same operative facts, Kent's brother, Timothy Platter,
pleaded guilty to two counts of being a felon in possession of a firearm and was
sentenced to 137 months of imprisonment, the top of the advisory Guidelines range.
In these consolidated appeals, Kent challenges the district court's1 denial of his motion
to dismiss one of the alternate counts charged under § 922(g). Timothy appeals his
sentence. We affirm.

                                           I.

      On the morning of December 22, 2005, a Black Hawk County sheriff's deputy
spotted Timothy Platter's truck stopped on the side of the road. As the deputy
approached the vehicle, Timothy threw a stolen, nine-millimeter handgun onto the
roadbed. The deputy discovered the handgun, which had been stolen during the
burglary of an Iowa home approximately one month earlier. Timothy was arrested.

      On the same day, officers applied for, and received, a warrant to search
Timothy Platter's Waterloo residence for evidence of other stolen goods. Timothy's
brother, Kent Platter, also resided there. To execute the warrant, officers escorted
Kent from his place of work to the home, where Kent directed the officers to his
bedroom. Kent lived in a garage adjoining the home, in which he kept a davenport,


      1
       The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.

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television, a large wardrobe, clothes, tools, and various personal effects. Inside the
wardrobe, officers discovered a stolen .20 gauge shotgun that was wrapped in a
blanket, and the officers also found .20 gauge ammunition hidden in a sock. Inside
a roll-away tool cabinet within the garage, officers found a small amount of marijuana
and drug paraphernalia, which included drug pipes, a scale, glass pipes and tubes,
rolling papers, and a rolling machine. Later, behind the davenport, the officers also
discovered a .22 caliber rifle.

       In February 2006, a grand jury returned a four-count indictment against Kent
and Timothy Platter. Counts one and two charged Timothy with being a felon in
possession of a firearm, § 922(g)(1), and were based on independent acts of
possession. Count three charged Kent with being a felon in possession of a firearm,
§ 922(g)(1), and count four charged him with being a drug user in possession of a
firearm, § 922(g)(3). Both of these counts were based on the same act of possession.
Timothy pleaded guilty to counts one and two, and the district court sentenced him to
137 months of imprisonment. Kent proceeded to trial.

       On June 9, 2006, a jury was selected, but not sworn, for Kent's trial on counts
three and four of the indictment. On the same day, the district court ordered a new
jury to be selected because it was concerned that trying Kent for being both a felon
and a drug user in possession of a firearm, under separate counts, would expose Kent
to multiplicitous counts. In response to Kent's Motion to Dismiss Alternate Counts
of the indictment, the district court ordered counts three and four to be merged and
presented to the jury as alternative theories for one charged offense. United States v.
Platter, 435 F. Supp. 2d 913, 919 (N.D. Iowa 2006).

       After a new jury was empaneled, Kent was tried by the new jury. Kent
stipulated that he was a convicted felon at the time he allegedly possessed a firearm
illegally. At trial, the Government was allowed to prosecute Kent under the theory
that he was a felon in possession of a firearm, and alternatively, that he was a drug

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user in possession of a firearm. The jury found Kent guilty of violating § 922(g)
under both theories of criminal liability, and thereafter, the district court sentenced
him to 70 months of imprisonment. This appeal follows.

                                          II.

       On appeal, Kent Platter argues that the district court abused its discretion by
denying his Motion to Dismiss Alternate Counts. We review de novo the district
court's determination that counts in an indictment are multiplicitous. United States v.
Roy, 408 F.3d 484, 491 (8th Cir. 2005). We review the district court's failure to
compel the Government to elect one theory of prosecution, as a remedy for a
multiplicitious indictment, for an abuse of discretion. United States v. Moore, 149
F.3d 773, 779 (8th Cir. 1998); Brennan v. United States, 240 F.2d 253, 261 (8th Cir.),
cert. denied, 353 U.S. 931 (1957).

       We recognize that Kent does not meaningfully contend that he was convicted
of, or punished for, multiplicitous counts in contravention of the Double Jeopardy
Clause of the Fifth Amendment. But we begin our analysis with the multiplicitous
nature of the indictment because it is helpful to our analysis of whether the district
court abused its discretion in remedying the defective indictment.

       An indictment is multiplicitous if it charges the same crime in separate counts.
United States v. Chipps, 410 F.3d 438, 447 (8th Cir. 2005). "The primary problem is
that the jury can convict on both counts, resulting in two punishments for the same
crime in violation of the Double Jeopardy Clause of the Fifth Amendment." United
States v. Ansaldi, 372 F.3d 118, 124 (2d Cir.), cert. denied, 543 U.S. 949 and cert.
denied, 543 U.S. 960 (2004). If the same statutory offense is charged twice, the
operative "question is whether the facts underlying each count were intended by
Congress to constitute separate units of prosecution." Id. (internal marks omitted).



                                         -4-
        Section 922(g) makes it a crime for a person in one of nine classes to "possess
in or affecting commerce, any firearm or ammunition." As relevant to this appeal, it
is illegal for a person to possess a firearm if that person has been convicted of a
felony, § 922(g)(1), or if that person "is an unlawful user of or addicted to any
controlled substance," § 922(g)(3).

       In United States v. Richardson, our en banc court aligned itself with each circuit
that has addressed whether an individual, based on a single act of possession, can be
separately convicted and punished pursuant to § 922(g) under more than one
classification. 439 F.3d 421, 422 (8th Cir. 2006) (en banc). The en banc court held
that separate convictions for a single act of possession are not authorized under the
statute because "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." Id. at 422 (quoting Bell v. United States, 349 U.S. 81, 81 (1955)). The
en banc court directed the district court on remand to "vacate the sentence, merge the
counts of conviction into one count, and resentence the defendant based on a single
conviction . . . ." Id. at 423.

       Here, the district court recognized that charging Kent with two violations of
§ 922(g) for one act of possession improperly exposed Kent to multiplicitous counts.
Consistent with Richardson, the district court merged the count charging Kent with
being a felon in possession with the count charging Kent with being a drug user in
possession. Kent was then convicted and punished for a single violation of § 922(g),
even though the jury found Kent guilty under both theories of criminal liability. The
district court's actions are consistent with Richardson, and, as a result of the district
court's corrective action, Kent was in no way exposed to or convicted of multiplicitous
counts.




                                          -5-
        Kent focuses his challenge on the district court's remedy for the multiplicitous
indictment. Kent argues that the district court should have granted his motion to
dismiss, thereby compelling the Government to elect one theory of prosecution under
§ 922(g), and preventing the Government from introducing evidence under both
theories. According to Kent, the district court's failure to do so resulted in the
introduction of prejudicial, and otherwise inadmissible evidence, which denied him
a fair trial.

       In Brennan, this court recognized that the district court has discretion to require
the government to elect between multiple counts of an indictment. 240 F.2d at 261
("[T]he motion [to require the government to elect between counts I and II of the
indictment] was addressed to the sound judicial discretion of the court . . . ."); see also
United States v. Webber, 255 F.3d 523, 527 (8th Cir. 2001) ("[I]n a rare case [the] risk
[of a prejudicial compromise verdict] might justify requiring the government to elect
among or consolidate counts at trial . . . ."); United States v. Johnson, 130 F.3d 1420,
1426 (10th Cir. 1997) ("A decision of whether to require the prosecution to elect
between multiplicitous counts before trial is within the discretion of the trial court."),
cert. denied, 525 U.S. 829 (1998).

        While the district court has discretion to require election, the Supreme Court
has recognized that the government has "broad discretion to conduct criminal
prosecutions, including its power to select the charges to be brought in a particular
case." Ball v. United States, 470 U.S. 856, 859 (1985). Generally, the government
is free to prove a defendant's liability for one criminal offense using multiple theories
of guilt. Federal Rule of Criminal Procedure 7(c)(1) expressly permits the
government to allege "that the defendant committed [an offense] by one or more
specified means." We have observed that "where a statute specifies two or more ways
in which one offense may be committed, all may be alleged in the conjunctive in one
count of the indictment, and proof of any one of the methods will sustain a
conviction." Roy, 408 F.3d at 492 n.4 (internal marks omitted); see also United States

                                           -6-
v. Shea, 211 F.3d 658, 673 (1st Cir. 2000) ("[I]t is clear enough that the government
is entitled to get both theories[–that the defendant was a drug-user and felon in
possession of a firearm–] before the jury, whether in one count or two."), cert. denied,
531 U.S. 1154 (2001).

       In light of the government's broad discretion in carrying out criminal
prosecutions and Rule 7(c)(1)'s express approval of the government's prosecution of
one offense using alternative theories of liability, with the facts of this case, the
district court did not abuse its discretion by denying Kent's motion to compel the
Government to elect one theory of prosecution. The district court's ruling is consistent
with Eighth Circuit precedent, which provides that the proper remedy when a
defendant is convicted of multiplicitous counts is merger of the counts into one count,
not a retrial under just one theory of liability. See Richardson, 439 F.3d at 423; Roy,
408 F.3d at 492 & n.4 (vacating one of Roy's convictions as multiplicitous, and
directing the Government, in future cases, to allege alternative means of committing
one offense in the same count of the indictment).

       Kent would have us adopt a per se rule requiring election for any prosecution
in which the Government seeks to prove that the defendant is either a felon or a drug
user in possession of a firearm. But implicit in the Richardson court's concluding
direction is the determination that the Government's intention to present evidence that
a defendant is both a felon and a drug user in possession of a firearm does not,
standing alone, require the Government to elect one theory of illegal possession under
the statute. We decline Kent's invitation to craft a per se rule of election for every
prosecution under § 922(g)(1) and § 922(g)(3); whether the district court abused its
discretion by declining to require election must be reviewed on a case-by-case basis.
Here, Kent makes no showing that the circumstances of this case are exceptional in
comparison to other cases in which federal courts have permitted prosecution for one
count under two theories under similar circumstances. Moreover, Kent directs us to



                                          -7-
no similar case in which this court has held that the district court abused its discretion
by failing to require the government to elect one theory of prosecution.

        We also conclude that Kent was not prejudiced by the government's
presentation of both firearm-possession theories to the jury. First, the district court
clearly instructed the jury that "[t]he indictment in this case charges [Kent Platter]
with one criminal offense," (Jury Instruction #10), and the jury never saw the
multiplicitous indictment. See Roy, 408 F.3d at 491 ("[M]ultiplicitous indictments
may be saved at the trial stage if the district court submits an appropriate instruction
to the jury."); United States v. Moore, 149 F.3d 773, 779 (8th Cir. 1998) (holding that
the defendants were not prejudiced by a "potentially multiplicitous" indictment
because "the jury did not see the indictment" and, consistent with Fed. R. Crim. P.
7(c)(1), the potentially multiplicitous counts were submitted together on a single
verdict form). Moreover, the jury found Kent guilty under both theories of
possession; thus, there is no possibility that the jury reached a comprise verdict as a
result of its exposure to evidence that Kent was both a felon and a drug user. See
Johnson, 130 F.3d at 1426 (concluding that Johnson was not prejudiced by a
"compromise verdict" as a result of multiplicitous counts, where the evidence on both
§ 922(g) counts was overwhelming and the jury found Johnson guilty on both counts).



       Finally, we respectfully disagree with Kent's contention that he was unduly
prejudiced by the Government's presentation of evidence that he was both a felon and
a drug user. Like the district court, we agree that theoretically the prosecution of a
defendant under alternative theories of guilt may result in the admissibility of
otherwise inadmissible 404(b) evidence. See Fed. R. Evid. 404(b). But this potential
for prejudice is inherent in most prosecutions relying on multiple theories of guilt, a
practice approved by Rule 7. And here, any such prejudice was negligible. Kent was
hardly prejudiced by evidence that he was a felon. Kent stipulated to this fact, and the
Government merely read the stipulation into the record. Kent's stipulation is

                                           -8-
nondescript and includes no information regarding his prior felony offense. Likewise,
the evidence that Kent was a drug user resulted in minimal prejudice. The evidence
that Kent was a drug user could have had no effect on the jury's finding that Kent was
a felon because Kent agreed to his status as a felon. And insofar as Kent argues that
this evidence led the jury to reason that it was more likely that he possessed a firearm,
this argument is without merit. In every prosecution under § 922(g), even when only
one theory is put forth, the jury will be presented with evidence of the defendant's
disqualifying status, which risks the same inference on which Kent urges this court to
grant him a new trial.

       Further, our conclusion that Kent was not prejudiced by the Government's
introduction of evidence under both theories is supported by the strength of the
evidence. See Chipps, 410 F.3d at 449 (rejecting Chipps's argument that
multiplicitous counts tainted the jury's deliberations, finding that the district court's
instructions to consider each count separately together with the strong evidence of
guilt on the valid counts, limited any prejudice to Chipps such that a new trial was not
warranted). Inside Kent's living quarters, which included Kent's personal belongings,
officers discovered a substantial amount of drug paraphernalia and a bag of marijuana
in a roll-away chest that was close to the davenport on which Kent slept. Similarly,
the officers discovered the shotgun hidden inside the wardrobe that contained Kent's
clothes. See, e.g., United States v. Abdul-Aziz, 486 F.3d 471, 477 (8th Cir. 2007)
("Constructive possession of the firearm is established if the person has dominion over
the premises where the firearm is located . . . . Constructive possession can also be
established by a showing that the firearm was seized at the defendant's residence."
(internal marks and citation omitted)). The strength of this evidence minimizes the
risk of any prejudice to Kent.

        The judgment of the district court with respect to Kent Platter in No. 06-4139
is affirmed.



                                          -9-
                                           III.

       Timothy Platter's sole argument on appeal is that the district court erred by
treating the advisory Guidelines as presumptively reasonable.

       Timothy's argument is unsupported by the record. The sentencing transcript
clearly indicates that the district court treated the Guidelines as its starting point and
gave them no presumptive weight. The district court recognized that it is "required
to consider all of the applicable factors under 18 [U.S.C. §] 3553(a)." (Sent. Tr. at
20.) And the record makes clear that the district court considered the advisory
Guidelines, other available sentences, the nature and circumstances of Timothy's
offense, Timothy's history and characteristics, and the remaining sentencing factors
before imposing its sentence. Timothy's argument is without merit.

      The judgment of the district court with respect to Timothy Platter in No. 07-
1134 is affirmed.
                     ______________________________




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