United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 13, 1998 Decided August 3, 1999
No. 97-3168
United States of America,
Appellee
v.
Andre P. Clark,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 97cr00006-01)
James M. Johnstone, appointed by the court, argued the
cause and filed the briefs for appellant.
Sharon A. Sprague, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney, John R. Fisher and Thomas C. Black,
Assistant U.S. Attorneys.
Before: Silberman, Rogers and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: After a jury trial, defendant An-
dre Clark was found guilty of unlawful possession of a firearm
by a convicted felon, unlawful possession of ammunition by a
convicted felon, and attempted bribery of a government offi-
cial. He was sentenced to 90 months in prison on each count,
to run concurrently. He challenges his convictions on the
following grounds: (1) that the evidence was insufficient to
warrant conviction on any count; (2) that the district court
abused its discretion and failed to protect him from undue
prejudice by permitting the jury to learn of his prior convic-
tion; and (3) that the district court committed a series of
prejudicial trial errors. We reject all of these challenges.
Clark also contends that he should only have been convicted
once rather than twice for unlawfully possessing both a
firearm and the ammunition with which it was loaded. The
government does not contest this point, and we agree that
defendant is correct. Accordingly, we remand for vacation of
one of the two possession convictions, and otherwise affirm
the district court's judgment in all respects.
I
Early on the morning of December 11, 1996, police officers
Otis McGinnis and Daymeion Harris stopped an automobile
that was traveling over 40 miles per hour in a 25 miles per
hour zone. Andre Clark was the driver and sole occupant of
the car. Officer McGinnis approached the driver's side win-
dow, while Officer Harris went to the passenger's side.
McGinnis asked Clark for his driver's license and car regis-
tration. Clark reached toward the back seat of the car and
the back floorboard. Tr. 97-98. After feeling around on the
back floorboard, he reached to the back seat and retrieved a
document which he handed to the officer. Tr. 111-15. The
document was a cellular phone contract in the name of Paul
Green. When McGinnis realized what he had been given, he
again asked for a license and registration. Tr. 98, 113-14.
Clark returned the contract to the back seat, felt around
again, and pulled out the same cellular contract. Id. Finally,
Clark produced an expired learner's permit from New York
which also bore the name Paul Green. Officer McGinnis
asked whether defendant had his license, and when Clark said
he did not, McGinnis asked him to step out of the car. Tr.
98-100, 116-17. After a radio check disclosed that defendant
did not have a valid license, he was placed under arrest for
driving without a permit.
Officer McGinnis then began to search the passenger com-
partment. The first place he looked was under the rear of
the driver's seat, "because that's where I saw defendant
reaching for his registration." Tr. 101. McGinnis found a
loaded .45-caliber handgun on the floor to the rear of the
seat, and immediately told his partner. Upon hearing this,
Clark said to McGinnis: "I can call my girl right now and
give you $5,000." Tr. 126; see id. at 102-04, 106-08, 140-41.
As Officer Harris placed Clark in the squad car, Clark added:
"Come on, man. I know what you all really want, I know
what you all really want. You all could just go ahead and let
me go. I know what you all really want." Tr 142, 167.
Clark also told the officers his name was Paul Green. Tr.
142-43.
Clark was indicted on three counts: (1) unlawful possession
of a firearm by a convicted felon in violation of 18 U.S.C.
s 922(g)(1); (2) unlawful possession of ammunition by a con-
victed felon, also in violation of section 922(g)(1); and (3)
attempted bribery of a government official in violation of 18
U.S.C. s 201(b)(1)(A), (C). At trial, the government offered
the testimony of the two police officers as well as a stipula-
tion, entered into by both sides, that Clark "had been previ-
ously convicted of a criminal offense punishable by a term of
imprisonment exceeding one year." The nature of Clark's
previous conviction was not mentioned. The defense called
Keisha Harling, the mother of Clark's then-6-week-old child
and the owner of the car Clark was driving at the time he was
arrested. Harling testified that, unbeknownst to Clark, she
had purchased the gun from a man in the neighborhood and
had left it under the driver's seat several days prior to the
arrest. The defense also called Kevia Williams, a longtime
friend of Harling's, who testified that she saw Harling pur-
chase the gun in November 1996 and place it under the
driver's seat in early December. The jury convicted Clark on
all three counts.
II
Clark argues that the government lacked sufficient evi-
dence to support the jury's verdict on either the possession or
the bribery charges. We review such a challenge de novo,
United States v. Lucas, 67 F.3d 956, 959 (D.C. Cir. 1995), and
must affirm the jury's verdict if " 'any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.' " Id. (quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979)) (emphasis in original). In making that
determination, "the prosecution's evidence is to be viewed in
the light most favorable to the government, drawing no
distinction between direct and circumstantial evidence, and
giving full play to the right of the jury to determine credibili-
ty, weigh the evidence and draw justifiable inferences of fact."
United States v. Foster, 783 F.2d 1087, 1088 (D.C. Cir. 1986)
(internal citations and quotations omitted).
A
Clark's felon-in-possession charges were based on the theo-
ry that he was in constructive possession of the weapon found
under his seat. See United States v. Morris, 977 F.2d 617,
619-20 (D.C. Cir. 1992). This "requires [evidence] that the
defendant knew of, and was in a position to exercise dominion
and control over" the weapon, but does not require that it be
on his person. United States v. Byfield, 928 F.2d 1163, 1166
(D.C. Cir. 1991). Constructive possession may be inferred
from circumstantial evidence, see United States v. Raper, 676
F.2d 841, 847-48 (D.C. Cir. 1982), but neither knowledge nor
proximity alone is sufficient to permit a jury to infer posses-
sion. See, e.g., Morris, 977 F.2d at 619-20. "There must be
some action, some word, or some conduct that links the
individual to the [contraband] and indicates that he had some
stake in [it], some power over [it]." United States v. Pardo,
636 F.2d 535, 549 (D.C. Cir. 1980).
Although the case for constructive possession is relatively
close, contrary to Clark's characterization this is not simply a
case in which the defendant was found in a car that happened
to contain a gun. Nor does the fact that the officers never
saw Clark look under the seat establish, as defendant claims,
that he did not know it was there. Officer McGinnis testified
that Clark felt around on the back floorboard behind his seat,
that this made McGinnis suspicious enough to cause him to
search that area first, and that when he did he immediately
found the gun "where I saw him reaching." Tr. 101, 115.
Clark's reaching actions are sufficient to link him to the gun
and to indicate that "he had some stake" in it--and the fact
that it was located directly under his seat further indicates
that he had "some power over [it]." Pardo, 636 F.2d at 549.
As we said in United States v. Hernandez with respect to a
very similar fact pattern: "[I]f proximity is coupled with a
gesture toward the contraband, suggesting an ability to con-
trol the item in question, constructive possession may be
inferred. An occupant of a car therefore need merely signify
control of a particular space in the car to give rise to an
inference of constructive possession of contraband later found
in that space." 780 F.2d 113, 117 (D.C. Cir. 1986) (internal
citations omitted). Accordingly, in Hernandez we held there
was sufficient evidence to sustain a jury verdict where the
defendant "ben[t] over and ma[d]e a motion in front of his
[car] seat," and the officer subsequently found a loaded
weapon on the floorboard "where he had seen [defendant]
bend down." 780 F.2d at 115. See Morris, 977 F.2d at 620
(holding that "proximity coupled with 'evidence of some other
factor--including ... a gesture implying control ...' is
enough to sustain a guilty verdict" for constructive posses-
sion) (quoting United States v. Gibbs, 904 F.2d 52, 56 (D.C.
Cir. 1990)); see also Unites States v. (John) Richardson, 161
F.3d 728, 732-33 (D.C. Cir. 1998).
Based on this case law, the officers' testimony is sufficient
to sustain a verdict on the prosecution's theory: that Clark's
purported effort to reach behind his seat for his license and
registration was only a ruse to permit him to push the gun
farther out of the officers' view. This theory is further
bolstered by the fact that, as he finally conceded to the
officers, Clark had neither document. It is also supported by
the fact that the location in which Clark ostensibly searched
for the documents, the car's rear floorboard, would have been
an unusual place to store them--even if he had had them.
It is true that there are some inconsistencies between
McGinnis' testimony and that of his partner. McGinnis testi-
fied that Clark first reached to the floorboard, and then
grabbed the cellular contract from the back seat. Tr. 98.
Harris testified that the events occurred in the reverse order.
Tr. 137-38. Both, however, were clear that Clark felt around
on the floorboard behind the seat. Tr. 115, 138. A more
important inconsistency arises from McGinnis' testimony that
Clark ultimately found the expired learner's permit on the
front seat, as compared to Harris' (somewhat unclear) testi-
mony that it was on the rear floorboard. Tr. 98, 138. The
significance of these inconsistencies, however, was for the
jury to assess. Although a reasonable jury might have found
the inconsistencies reason to doubt the officers' credibility, it
might also have found them the product of honest differences
in recollection, and proof that the officers did not conspire to
create a consistent story. See Gibbs, 904 F.2d at 57 ("While a
jury might have doubted this testimony regarding the defen-
dant's alleged attempt to bend down and hide the drugs, ...
the assertions and credibility of the witness describing an
attempt to 'bend down as if doing something with their hands'
were for the jury to consider."). Similarly, while crediting
Harris' recollection might have given the jury an innocent
explanation for why Clark was reaching to the rear floor-
board, a reasonable jury might also have believed that
McGinnis--who alone questioned Clark, stood right beside
him, and had "a good focus on [him]," Tr. 110--had the better
recollection. McGinnis' testimony was plainly "the more fa-
vorable to the government," and we are bound to view the
prosecution's evidence in that light. Foster, 783 F.2d at 1088.
The prosecution's theory of the case is further supported
by the testimony of both police officers that, when Clark
heard McGinnis had found the gun, he immediately offered
McGinnis a bribe. Like the fact that Clark gave the police
the alias Paul Green, see United States v. Glass, 128 F.3d
1398, 1408 (10th Cir. 1997), the bribery attempt is evidence of
Clark's "consciousness of guilt" with respect to the gun
offense, see United States v. Mendez-Ortiz, 810 F.2d 76, 79
(6th Cir. 1986). It may be, as Clark's appellate counsel
argues, that a rational jury could have viewed the bribe as
nothing more than an attempt to avoid an unfair conviction
for possessing a gun of which he had no knowledge. But it
was also justifiable for a jury to reach the prosecutor's
conclusion, and we are required to give "full play to the right
of the jury" to "draw justifiable inferences of fact." Foster,
783 F.2d at 1088. In any event, appellate counsel's argument
was never made to the jury, since defendant's contention was
that he never offered the bribe in the first place. See Tr.
295-96.
Finally, there was the testimony of Keisha Harling, the
mother of Clark's child, and the partially corroborating testi-
mony of Kevia Williams, Harling's longtime friend. Harling
testified that she had purchased the gun, forgotten it under
the driver's seat several days prior to the arrest, and never
told Clark about it. Once again, the assessment of witness
credibility is a job for the jury rather than this court. See
Foster, 783 F.2d at 1088. And a reasonable juror could
surely have discerned bias in these witnesses, or simply
disbelieved their claim that Harling left a loaded gun (assert-
edly bought for her protection) unattended in a car for
several days and never told Clark about it.
In sum, viewing the evidence in the light most favorable to
the government, we conclude there was sufficient evidence to
sustain Clark's conviction for constructive possession of the
gun and its ammunition.
B
Clark also challenges the sufficiency of the evidence sup-
porting his conviction for attempted bribery. Both McGinnis
and Harris testified that Clark made the $5,000 offer to
McGinnis as soon as he found the gun. Harris further
testified that Clark made a similar offer to him as he placed
Clark in the squad car. Clark did not testify himself, and
there was no other contrary testimony. Nor does Clark
contend that the offers were too ambiguous to constitute
attempted bribes.
Clark does correctly note that the officers did not record
the bribery attempt in their incident reports. He asks us to
adopt a per se rule that no prosecution for attempted bribery
can reach a jury when the only evidence is the testimony of
police officers uncorroborated by contemporaneous reports.
As counsel conceded at oral argument, however, there is no
authority for such a rule. Although the officers' failure to
record the incident may call the credibility of their testimony
into question, that credibility is for the jury to assess. See
Foster, 783 F.2d at 1088. Here, two officers testified to the
bribe, while the discovery of the gun provided evidence of
motive. Defendant was afforded a full opportunity to cross-
examine the officers about their failure to report the offer.
Under these circumstances, we cannot say that no reasonable
juror could have found Clark guilty of attempted bribery.
III
An element of the offense of unlawful possession of a
firearm by a convicted felon is that the defendant be previ-
ously convicted of "a crime punishable by imprisonment for a
term exceeding one year." 18 U.S.C. s 922(g)(1). In this
case, that element was proven by a stipulation that mirrored
the words of the statute, with no mention made of the
particular crime involved. Clark contends that the district
court abused its discretion and failed to protect him from
undue prejudice by permitting the jury to learn of the fact
(although not the nature) of his prior conviction through the
stipulation. Before trial, Clark moved to sever the felon-in-
possession counts from the attempted bribery count, relying
on United States v. Dockery, 955 F.2d 50 (D.C. Cir. 1992), and
Fed. R. Crim. P. 14 (court may order separate trials of counts
if defendant is prejudiced by joinder). In the alternative, he
moved for "bifurcation," which he described as "a split trial in
which the jury would initially hear only the evidence bearing
on the bribery attempt and the possession elements of the
gun charges. Only if and after the jury found these charges
established would evidence of defendant's felon status be
introduced." Def. Br. at 25. Clark also offered, as another
alternative, to stipulate that he was a "prohibited person"
under the unlawful possession statute.
In Dockery, we overturned a district court's decision not to
sever a felon-in-possession count from others in the indict-
ment. 955 F.2d at 53. In so doing, however, we noted that
there is no "per se rule" requiring severance of a felon-in-
possession charge from other counts. Id. Instead, we pro-
ceed on a case-by-case basis, requiring that " 'sufficiently
scrupulous regard' ... be shown to protect the defendant
from any undue prejudice resulting from joinder." Id. at 50
(quoting United States v. Daniels, 770 F.2d 1111, 1118 (D.C.
Cir. 1985)); see United States v. Bowie, 142 F.3d 1301, 1306
(D.C. Cir. 1998); United States v. (Opio) Moore, 104 F.3d
377, 382 (D.C. Cir. 1997). We review a district court's
decision whether to sever a trial under Fed. R. Crim. P. 14
"only for abuse of discretion." Bowie, 142 F.3d at 1306; see
Dockery, 955 F.2d at 54.
The most important difference between Dockery and this
case is that in Dockery the evidence of the felon-in-possession
count would have been inadmissible in a trial limited to the
other counts. See Dockery, 955 F.2d at 50. Here, by con-
trast, Clark's violation of section 922(g)(1) (including, as dis-
cussed infra, its prior-felony element) was admissible as
evidence of his motive for the attempted bribery--namely, to
avoid arrest for that violation. See Fed. R. Evid. 404(b) (other
crimes admissible to show motive). And, as we noted above,
the bribery was in turn admissible as evidence that Clark had
knowledge of the gun. Hence, severance would have accom-
plished little in this case, since proof of each crime would have
been admissible in the separate trials. See United States v.
(Corey) Moore, 97 F.3d 561, 564 (D.C. Cir. 1996) ("Joined
offenses need not be severed ... if the evidence of each crime
would be admissible in a separate trial for the other.").
Perhaps for this reason, on appeal Clark does not assert that
the failure to sever was itself an abuse of discretion under
Rule 14. See Def. Br. at 24.
Of course, even where severance is not required, courts still
must " 'proceed with caution' to avoid undue prejudice" to a
defendant. Dockery, 955 F.2d at 53 (quoting Daniels, 770
F.2d at 1118). But in that respect, too, this case is different
from Dockery. There, the government rejected defendant's
offer of a stipulation, and insisted on proving the fact of
defendant's prior conviction through the testimony of his
probation officer. Dockery, 955 F.2d at 52, 54. There, too,
the government repeatedly and unnecessarily referred to the
defendant's prior conviction during the trial, a point we
regarded as "[p]erhaps most significant[ ]" in assessing the
prejudice involved. Id. at 56. In Clark's case, by contrast,
the government proved the fact of the prior felony solely
through the stipulation, and referred to it no more than was
permissible to show the jury it had established an essential
element of the offense.
There remains the question of whether it was an abuse of
discretion to reject defendant's suggested alternatives of: (1)
bifurcating the trial in a way that would delay the jury's
hearing about his prior felony until after it found him guilty
of possessing the gun; or (2) removing the issue from the
trial altogether through a stipulation that Clark was a "pro-
hibited person" who was not permitted to possess a weapon.
In Old Chief v. United States, 519 U.S. 172 (1997), the
Supreme Court found a district court had abused its discre-
tion by refusing defendant's request to limit the evidence of
the prior-conviction element of section 922(g)(1) to a stipula-
tion that he had "been convicted of a crime punishable by
imprisonment exceeding one (1) year." Id. at 174-75. Old
Chief had been charged with assault with a dangerous weap-
on, use of a firearm in a crime of violence, and being a felon-
in-possession. The Court held that "whenever the official
record offered by the government would be arresting enough
to lure a juror into a sequence of bad character reasoning,"
evidence of the name or nature of a defendant's prior offense
would be substantially more prejudicial than probative and
hence barred under Fed. R. Evid. 403. Id. at 185. "Where a
prior conviction was for a gun crime or one similar to other
charges in a pending case," as was Old Chief's prior convic-
tion for assault, "the risk of unfair prejudice would be espe-
cially obvious." Id.
Needless to say, Clark's proposals for dealing with his prior
conviction go beyond anything required by Old Chief. In-
deed, in this case the trial court did exactly what Old Chief
commanded: it accepted the defendant's stipulation and kept
from the jury the name and nature of his prior offense. Old
Chief did not, and does not, require more. The Court did not
even mandate use of a stipulation for every prior offense, but
only where "the prior conviction is for an offense likely to
support conviction on some improper ground," id. at 191, such
as "a gun crime or one similar to other charges in [the]
pending case," id. at 185. Here, the nature of Clark's prior
conviction was completely sanitized, and there was nothing
about the stipulation that would "lure a jury into a sequence
of bad character reasoning." Id.
Moreover, while the district court's approach in this case
was not unduly prejudicial to defendant, defendant's alterna-
tives might well have deprived the prosecution of its rightful
opportunity, recognized in Old Chief, "to convince the jurors
that a guilty verdict would be morally reasonable." Id. at
188. The effect of those alternatives would have been to keep
from the jury the fact that the reason it was unlawful for
Clark to possess a gun was that he was an ex-felon. As we
noted in United States v. Mangum, when a jury is not "told
all the elements of the crime, it may, justifiably, question
whether what the accused did was a crime.... Possession of
a firearm by most people is not a crime.... Doubt as to the
criminality of [the defendant's] conduct may influence the
jury when it considers the possession element." 100 F.3d
164, 171 n.11 (D.C. Cir. 1996) (quoting United States v.
Collamore, 868 F.2d 24, 28 (1st Cir. 1989)). For that reason,
we rejected defendant Mangum's contention that the district
court should have "bifurcate[d] the ex-felon element and the
other elements" of section 922(g)(1). Id. at 171. For the
same reason, we reject Clark's suggestion that bifurcation
was required here, as well as his alternative proposition that
the court should simply have told the jury that he was a
"prohibited person." As to the latter, we are doubtful that
labeling defendant in that way would have materially reduced
whatever prejudice he suffered from the stipulation; indeed,
it seems equally possible that such a label would have gener-
ated even worse speculation as to the reason for the prohibi-
tion.
United States v. Bowie, provides further support for our
conclusion. In Bowie, the defendant contended that the
district court had abused its discretion by failing either to
sever his felon-in-possession counts from the other charges,
or to bifurcate the felon-in-possession counts so that the jury
would decide only the element of possession. We rejected
defendant's challenge, finding that the steps the court had
taken to minimize prejudice resulting from mention of the
prior conviction "demonstrated sufficiently scrupulous regard
for [defendant's] right to a fair trial." Bowie, 142 F.3d at
1303. The district court had required the prosecution to
prove the prior conviction by stipulation alone and without
reference to the nature of the underlying crime; the stipula-
tion had stated only that defendant "had previously been
convicted of an offense punishable by a term of imprisonment
exceeding one year"; and the court had ensured that the only
references made to the prior conviction were those necessary
to explain the charge to the jury. Id. at 1304. In all these
respects, Bowie's case is the same as Clark's.
The only additional step the trial court took in Bowie, but
did not take here, was to admonish the jury not to consider
the fact of the defendant's prior conviction for anything other
than that element of the felon-in-possession counts. Although
the absence of such an instruction is not unimportant, we note
that Clark did not request one,1 and that Bowie emphasized
__________
1 While the court does have "a continuing obligation to assure a
fair trial," and "appropriate instructions are one way" to do so, "the
trial court bears no burden to offer cautionary instructions sua
sponte each time prior crimes evidence is introduced." Dockery,
955 F.2d at 56.
there is no "per se rule regarding what steps a district court
must take to minimize the prejudice of other crimes evi-
dence." Bowie, 142 F.3d at 1306 (citing Daniels, 770 F.2d at
1118). Indeed, more important than the absence of the
instruction here is the presence of the factor mentioned at the
start of this analysis--that in Clark's case, unlike Bowie's,
proof of the felon-in-possession offenses would have been
admissible even in a separate trial of the remaining offense.
Accordingly, we reject the defendant's efforts to distinguish
Bowie, and conclude that the district court did not abuse its
discretion either by refusing to sever the section 922(g)(1)
charges, or by permitting proof of Clark's prior conviction
through the parties' stipulation.
IV
Clark alleges that the district court committed a series of
other trial errors that prejudiced his right to a fair trial.
With one exception, which we discuss in Part V, these argu-
ments are without merit and demand only brief attention to
their core allegations.
First, citing United States v. Donato, 99 F.3d 426 (D.C. Cir.
1996), Clark contends that the district court undermined his
defense by directing unjustified criticism at his counsel in the
presence of the jury. Although Donato did hold that criti-
cism from the bench may be so hostile as to prejudice a
defendant's right to a fair trial, id. at 435, 438, we also
emphasized that
a district judge has wide discretion in monitoring the
flow of a criminal trial. It is well within her discretion to
rebuke an attorney, sometimes harshly, when that attor-
ney asks inappropriate questions, ignores the court's
instructions, or otherwise engages in improper or delay-
ing behavior. Sharp words spoken by a trial court to
counsel do not by themselves establish impermissible
bias.
Id. at 434.
In this case, a careful examination of the trial record has
not given us any doubt that defendant received a fair trial.
In most of the exchanges cited by Clark, the court correctly
ruled that defense counsel had failed to properly frame his
questions. Sometimes counsel's questions did not manifest
their relevance; sometimes they were leading; and some-
times they suffered from a little of both. When the court
sustained a relevance objection, counsel would often try to
solve the problem by leading his witness into a show of
relevance. This, in turn, would prompt the court to take
counsel to task for both problems. See, e.g., Tr. 200.
There is no indication that the court was any tougher on
the defense counsel than on the prosecutor with respect to
these matters of trial technique. See, e.g., id. at 99, 133-34,
139, 165-67, 217, 248. Moreover, the court took care to
instruct the jury not to take its rulings on motions or objec-
tions by counsel as any indication of its opinion regarding the
facts.2 See United States v. Logan, 998 F.2d 1025, 1029 (D.C.
Cir. 1993). Most important, the court's comments were di-
rected at the attorneys, not at defendant or his witnesses.
See Donato, 99 F.3d at 437-38; United States v. Edmond, 52
F.3d 1080, 1101-02 (D.C. Cir. 1995). The jury heard nothing
to suggest the court was biased against the defendant or
disbelieved his defense.
Clark's second contention is that the district court erred
when it ruled out testimony from Keisha Harling regarding a
quarrel she and defendant had shortly before his arrest. We
agree that the court erred in concluding such testimony would
be irrelevant. While Clark urges the testimony's relevance
on a number of grounds, the argument he stresses, and the
one we find persuasive, is that "evidence of hostility between
defendant and Ms. Harling was relevant to Ms. Harling's
__________
2 In its closing instructions, the court told the jury that "[m]y
actions during the course of this trial in ruling on motions or
objections by counsel, any comments I may have made to counsel,
any questions I may have put to witnesses ... are not to be taken
by you as any indication of my opinion as to how you should
determine the issues of fact. If you believe that I have expressed
or intimated any opinion as to the facts, not only should you
disregard it, I instruct you to totally disregard it." Tr. 308.
credibility by tending to counter any inference that she was
testifying because of her friendship for defendant." Def. Br.
at 29. Nonetheless, we find the error harmless in that it did
not have a "substantial and injurious effect or influence in
determining the jury's verdict." Kotteakos v. United States,
328 U.S. 750, 776 (1946); see United States v. Smart, 98 F.3d
1379, 1390 (D.C. Cir. 1996). Notwithstanding the court's
ruling, Harling still managed to testify (on cross-examination)
both that the quarrel took place and to the aspect of the
quarrel most relevant to her credibility: the fact that Clark's
relationship with her allegedly terminated the night of his
arrest. Tr. 219 ("After we had an argument that night, it was
over, he took my car, and that did it."); see also id. at 187.
We do not see how the additional, comparatively insignificant
details about the quarrel that were excluded could have had a
substantial effect on the jury's assessment of Harling's credi-
bility, let alone on the ultimate verdict.
Third, Clark contends that the court improperly admitted
testimony regarding his use of the alias, Paul Green, and
wrongly refused to strike references to the alias from the
indictment. Defendant contends that because the alias was
"irrelevant for any legitimate purpose," the testimony should
have been excluded under Fed. R. Evid. 401. Def. Br. at 31.
But Clark's alias was not irrelevant. It is well-settled that
"[a] defendant's use of an alias to conceal his identity from
law enforcement officers is relevant as proof of consciousness
of guilt." Glass, 128 F.3d at 1408; accord Levy v. Gozlon-
Peretz, 865 F.2d 551, 558 (3d Cir. 1989) (en banc); United
States v. Kalish, 690 F.2d 1144, 1155 (5th Cir. 1982); see
United States v. Stewart, 104 F.3d 1377, 1391 (D.C. Cir. 1997)
(holding that use of alias supported jury verdict that defen-
dant knowingly failed to appear as required). Here, the fact
that Clark gave the police an alias was relevant to the
prosecution's charge that he knowingly possessed the gun
found under his seat. Defendant further contends that the
district court should have struck the references to his alias
from the indictment under Fed. R. Crim. P. 7(d) because,
although the government told the court they were necessary
to show identity, in the end they were not. Even if that had
been the government's sole ground for inclusion of the refer-
ences in the indictment, Clark's claim would fail because he
has not established any prejudice; the jury properly learned
of defendant's use of the name Paul Green through the
officer's testimony that defendant gave the name when ar-
rested. See, e.g., United States v. Oakar, 111 F.3d 146, 157
(D.C. Cir. 1997) ("Material that can fairly be described as
'surplus' may only be stricken [from an indictment] if it
irrelevant and prejudicial.").
Fourth, Clark argues that he was prejudiced by the court's
improper handling of the fact that a documentary about the
jury process was broadcast on CBS television the night after
the jury began its deliberations. The next day, defense
counsel advised the court of the broadcast, asserted that
"there was a definition of reasonable doubt given in that
program which is inconsistent with the federal court defini-
tion," and requested that the court voir dire the jurors about
the program. Tr. 356. The court declined to conduct a voir
dire at that time. Instead, it instructed the jury to disregard
anything they might have seen on the program, and then
reinstructed them on the proper definition of reasonable
doubt.3 After the jury delivered its verdict, the court con-
ducted a voir dire. Although several jurors had seen at least
a part of the broadcast or heard it discussed, all assured the
court to its satisfaction that the program had had no impact
on their deliberations. Tr. 373-91.
We need not discuss this challenge in detail because defen-
dant has failed, both in the district court and here, to satisfy
__________
3 The court said: "I'm informed by counsel that there may have
been some television show last night on the question of reasonable
doubt. If there were, and if you saw it ... you must totally
disregard it, because it has nothing whatever to do with this case. I
am instructing you as to the law as it applies to this case, the case
you heard. So, if any of you did happen to see any such program,
please totally disregard it, because it has nothing to do with the law
that you are to follow in this case." Tr. 358-59. The court then
repeated the standard federal jury instruction regarding the mean-
ing of "reasonable doubt." Tr. 359-60. See Instruction 2.09, Crimi-
nal Jury Instructions, Young Lawyers Section, The Bar Association
of the District of Columbia (4th ed. 1993).
the threshold requirement for such a claim of improper media
exposure: that he show a "likelihood of prejudice." United
States v. Williams-Davis, 90 F.3d 490, 501 (D.C. Cir. 1996).
Defense counsel told the district court that he had not himself
seen the program, and had only heard about it from others.
He did not (because he could not) tell the court what was said
on the program concerning reasonable doubt, nor in what way
it was "inconsistent" with the federal definition. Tr. 390-91.
Despite the court's express invitation that he file a post-trial
motion, defendant never submitted either a transcript or
videotape of the broadcast. Nor has defendant's state of
knowledge improved on appeal. On this record, therefore, we
are unable to say either that there was anything prejudicial in
the broadcast, or that the corrective measures taken by the
trial court were inadequate.
Fifth, Clark argues that the district court "manipulated the
jury selection process" by first seating those members of the
venire who had been assigned even numbers by the Jury
Office's computer, and thereafter seating odd-numbered
members until the complete jury was chosen. Defendant
contends that the court's procedure "infringed his constitu-
tionally guaranteed rights to counsel, due process and equal
protection,"4 although he concedes there is no authority "ap-
proving or disapproving the trial judge's unusual practice."
Def. Br. at 35 & n.16. We do not understand why the court
adopted the selection procedure it did, but defendant has
been unable to demonstrate how that procedure interfered
with his constitutional rights. Although the procedure is
unusual, it is not necessarily less random than alternating
even- and odd-numbered jurors. Without any evidence to
suggest there were relevant differences in the people as-
signed even and odd numbers, or that the court used the
procedure as a mechanism for intentional discrimination,
there is no basis for defendant's claim of a constitutional
__________
4 Defendant does not challenge the procedure under the Jury
Selection and Service Act, 28 U.S.C. s 1861, noting that his failure
to raise the issue below renders such a challenge untimely under 28
U.S.C. s 1867(a). Def. Br. at 35 n.16.
violation. See generally United States v. Ovalle, 136 F.3d
1092, 1104-05 (6th Cir. 1998).
V
Clark's final argument is that he may not be convicted of
more than one violation of section 922(g)(1) for possessing
both a firearm and the ammunition it contained, and that the
district court therefore erred in denying his pretrial motion to
compel the government to elect between the two possession
counts. Although the government did not respond to this
argument, we note that it has conceded the point in at least
three other cases. See United States v. Pittman, 172 F.3d
922 (D.C. Cir. 1998) (table case), available at 1998 WL 939519,
at *1; United States v. (John) Richardson, 161 F.3d 728, 730
n.1 (D.C. Cir. 1998); United States v. Hall, 77 F.3d 398, 402
(11th Cir. 1996).
Because "[t]he legislature remains free under the Double
Jeopardy Clause to define crimes and fix punishments,"
Brown v. Ohio, 432 U.S. 161, 165 (1977), the validity of
Clark's claim turns on whether Congress intended the posses-
sion of a loaded firearm to constitute one or two "units of
prosecution" under 18 U.S.C. s 922(g)(1). See Bell v. United
States, 349 U.S. 81 (1955). Section 922(g)(1) states: "It shall
be unlawful for any person who has been convicted in any
court of, a crime punishable by imprisonment for a term
exceeding one year ... [to] possess in or affecting commerce,
any firearm or ammunition." 18 U.S.C. s 922(g)(1) (empha-
sis added). It would not be unreasonable to read the phrase
"any firearm or ammunition" as permitting separate charges
for each. Such a reading would be consistent with a congres-
sional intent to permit greater punishment for more danger-
ous acts, the possession of a gun loaded with ammunition
being more dangerous than the possession of either alone.
On the other hand, an affirmative intention to permit two
separate charges for a gun and its ammunition is not clear on
the face of the statute. Indeed, if the statute were read that
way, it might just as readily permit fourteen charges against
Clark, one for the gun and one for each of its thirteen bullets.
In Bell v. United States, the Supreme Court instructed that
"if Congress does not fix the punishment for a federal offense
clearly and without ambiguity, doubt will be resolved against
turning a single transaction into multiple offenses." 349 U.S.
at 84 (holding that interstate transportation of two women on
same trip in same vehicle constitutes single violation of Mann
Act, 18 U.S.C. s 2421); see United States v. Anderson, 59
F.3d 1323, 1333 (D.C. Cir. 1995) (en banc). The question of
whether section 922(g)(1) is ambiguous has already been
decided in this circuit by United States v. Cunningham, 145
F.3d 1385 (D.C. Cir. 1998), which considered the propriety of
multiple section 922(g)(1) charges for the possession of multi-
ple weapons. Cunningham concluded that the word "any" in
the phrase "any firearm or ammunition" creates ambiguity as
to the unit of prosecution intended by Congress, and that as a
consequence, "[w]hen a felon possesses multiple weapons,
only one offense is committed, unless the weapons are stored
or acquired at different times or places." Id. at 1398.5
Because the phrase is no less ambiguous for charges based on
weapons and ammunition than for charges based on multiple
weapons, Cunningham compels the conclusion that posses-
sion of a loaded weapon constitutes a single offense as well.
In so holding, we join every other circuit that has considered
the issue.6
Upon finding that a defendant has been convicted of two
charges for a single offense, the usual remedy is to hold that
the convictions have merged and order that one be vacated.
Ball v. United States, 470 U.S. 856, 864 (1985); see Cunning-
ham, 145 F.3d at 1399; United States v. (Billy) Richardson,
__________
5 Accord United States v. Szalkiewicz, 944 F.2d 653, 654 (9th
Cir. 1991); United States v. Valentine, 706 F.2d 282, 294 (10th Cir.
1983); United States v. Frankenberry, 696 F.2d 239, 244 (3d Cir.
1982); United States v. Powers, 572 F.2d 146, 150 (8th Cir. 1978).
6 See United States v. Dunford, 148 F.3d 385, 390 (4th Cir.
1998); United States v. Keen, 104 F.3d 1111, 1119-20 (9th Cir.
1996); United States v. Hall, 77 F.3d 398, 402 (11th Cir. 1996);
United States v. Berry, 977 F.2d 915, 919-20 (5th Cir. 1992);
United States v. Throneburg, 921 F.2d 654, 657 (6th Cir. 1990);
United States v. Pelusio, 725 F.2d 161, 168-69 (2d Cir. 1983);
United States v. Oliver, 683 F.2d 224, 232-33 (7th Cir. 1982).
167 F.3d 621, 628 (D.C. Cir. 1999). Clark, however, contends
that it was "possibly prejudicial" for the court to have "al-
low[ed] the government to charge and try both offenses," and
implies that we should therefore vacate both. Def. Br. at 32
n.13. We detect no prejudice, since the evidence that Clark
possessed the gun and that he possessed the ammunition was
identical, and since the jury would have learned of both
regardless which separate charge was brought. Accordingly,
the only remedy that is necessary is to "vacate one of the
underlying convictions." Ball, 470 U.S. at 864; see id. at
859-60 & n.8; United States v. Berry, 977 F.2d 915, 920 (5th
Cir. 1992).
VI
The judgment of the district court is affirmed with the
exception of defendant's separate convictions for unlawfully
possessing both a gun and the ammunition with which it was
loaded. As to those, the case is remanded with instructions
that the district court vacate one of the convictions and
resentence the defendant.