UNITED STATES COURT OF APPEALS

for the Fifth Circuit

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No. 93-5313

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

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

Defendant-Appellant.

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Appeal from the United States District Court

for the Western District of Louisiana

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(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
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. 

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

3

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
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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 fiveyear 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
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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.
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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
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).

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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
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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 Tshirt, 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
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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.