* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable Tena Campbell, United States DistrictJudge for the District of Utah, sitting by designation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 18 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. VERLE DEAN MEEKS, Defendant-Appellant. No. 97-8113 (D.C. No. 96-CR-83-001) (District of Wyoming)

ORDER AND JUDGMENT *

Before PORFILIO and ANDERSON , Circuit Judges, and CAMPBELL , District Judge **

A jury convicted Verle Dean Meeks of violation of 1 8 U.S.C. § 922(g) which prohibits a person convicted of a felony frompossessing a firearm. Mr. Meeks presents three issues for review. First, he contends the evidence supporting his conviction was highly prejudicial an d should have been excluded- 2 -

under Old Chief v. United States , 519 U.S. 172, 117 S. Ct. 644 (1997). Second, he maintains a substantial variance between the cha rges in the indictment and the government’s proof prejudiced his right to notice, due process, and a fair trial. Third, he urges the evidence of possession was insu fficient and the court erred in instructing the jury on constructive possession. F inding no error, we affirm. Verle Meeks owns a ranch on the Wind River Indian R eservation in Wyoming. In the summer of 1995, he met Robin Rose, her parents, and four children, who were camping in a nearby campground. Ms. Rose’s mother was related to Mr. Meeks and was visiting the area to r esearch her family’s history. For the several weeks the Rose family was in the ar ea, invited them to his ranch to ride horses. Although the family returned to Ut ah at the end of the summer, Ms. Rose and the children visited Mr. Meeks that fa ll for a month. The following spring, Ms. Rose and her daughter, Ashley, then 7, son, Glen, age 9, and a niece, Dawn Gilbert, age 11, moved in with Mr. Meeks. In July, another niece, Jennifer Brock, Dawn’s half-sister joined the family. In the middle of the night of July 7, 1996, tribal police arrested Mr. Meeks at his home in response to allegations he sexually molested the children. On July 26, 1996, an indictment charged Mr. Meeks withfive counts of abusive sexual contact with a minor and four counts of aggr avated sexual abuse of a minor. Six months later, the government filed a superceding indictment adding a- 3 -

tenth count, charging a violation of 18 U.S.C. § 92 2(g)(1), alleging Mr. Meeks possessed a firearm after he was convicted in 1974 of forcible rape. At a pre-trial motions hearing in July 1997, Mr. Me eks’ counsel moved to bifurcate the trial of count 10 from that of counts 1 through 9, arguing the circumstances of the prior conviction would be high ly prejudicial. Considerable discussion was engaged in between the court and cou nsel, with the government’s first resisting any notion of severing counts but then agreeing to the possibility of a bifurcated trial. As outlined by the court, evid ence would be taken on the sexual assault counts first, the jury would deliber ate, and after the verdict was rendered, trial of the firearm count would immediat ely follow before the same jury. During the course of discussion, defense cou nsel stated her principal concern was to insure that during the trial of the sex offense counts, the jury was not made aware that defendant’s prior felony involv ed forcible rape. She noted, “it’s such a harsh word and evokes so much prejudic e.” The court then suggested counsel could merely stipu late to defendant’s prior felony conviction without identifying the nat ure of the crime and avoid the necessity of the bifurcated trial. Before counsel who seemed in agreement with that suggestion could respond, however, the court s tated: “I will grant [defense counsel’s] motion to bifurcate or, in the alternati ve, if you can work out a- 4 -

stipulation, I will allow you to do that and we can present the whole thing in one fell swoop.” What occurred in the interim is not clear, but tria l was staged in two segments in accordance with the bifurcated arrangem ent. We presume, therefore, the parties were unable to reach a pretrial stipulation, given the court’s prior ruling. After four days of testimony, the jury returned a n ot guilty verdict on the first nine counts. As proposed, the second stage b egan immediately, and Mr. Meeks was found guilty later that day of violation of 18 U.S.C. § 922(g)(1). The court sentenced Mr. Meeks to twenty-one months’ imp risonment. Mr. Meeks bases his contention the court erred in p ermitting the government to present the circumstances of his prio r conviction on Old Chief. That case proscribed such evidence under Rule 403 o nce the defendant has conceded the fact of conviction. 117 S. Ct. at 647 . In this case, defendant’s counsel hypothesizes the jury which had just acquitted him of nine counts of sexual contact with a child, perhaps after disbelie ving the children’s testimony and feeling sympathy for this otherwise weathered r ancher, became angered when it discovered defendant’s prior felony conviction w as for forcible rape. The swiftness of the jury’s second verdict, he maintain s, attests to the extreme prejudice the evidence of the nature of his prior f elony caused. The argument3 In his brief, defendant states the stipulation was defense counsel’s

“accept[ance of] the lesser of two evils.” The rec ord does not justify this statement. It is clear defense counsel’s intent wa s to enter the stipulation from (continued...) - 5 - rings hollow, however, in light of what actually oc curred at trial. Despite all the wrangling over whether the jury should find out Mr. Meeks had been convicted of forcible rape, the damning evidence went to the jury by stipulation. At the outset of the second phase of the trial, the government offered the testimony of the victim of the rape offense to esta blish the fact of conviction and to identify Mr. Meeks as the perpetrator. Defense counsel objected, and outside the presence of the jury stated: “I wanted to infor m the Court that we will stipulate to the fact that he has a rape conviction . I alluded to that yesterday, but I didn’t enter formal stipulation, but my client wi ll stipulate to that, Your Honor.” Although the court replied the government did not h ave to accept the stipulation, the prosecutor, referring to Old Chief , advised the court it could be an abuse of discretion for the court to proceed in that fashion . After some discussion, the court asked defense counsel, “The other stipulationis that Verle Meeks was convicted of forcible rape” to which counsel interj ected, “Yes,” and the court continued, “on the date alleged in this document?” Although counsel’s agreement occurred before the court finished its statement, g overnment counsel then asked her, “Stipulate the admission of written documents without [the victim’s] testimony? To which she replied, “Yes.” 33 (...continued)

the outset. Indeed, before the court erroneously s tated the government did not have to accept the stipulation, she told the court she had “alluded to that [stipulation] yesterday.” She does not suggest she was pressed into accepting a distasteful compromise. To the contrary, her priorallusion suggests a calculated choice on her part. Moreover, her intent to stipul ate entirely conforms to the prospect established by the court’s pretrial order. To say this was the “lesser of two evils” contradicts what is plain in the record. - 6 - Turning to the jury, the court then read to it from the stipulated documents. Among the facts read were that Mr. Meeks had been c harged with the crime of rape, that the rape was committed “forcibly and aga inst [the victim’s] will,” and that Mr. Meeks was convicted and sentenced to a ter m of five years.
In United States v. Wilson , 107 F.3d 774 (10th Cir. 1997), we concluded although it was Old Chief error to introduce evidence of the nature of a pri or conviction after defendant offered to stipulate, th e error was harmless because of overwhelming additional evidence assuring the “prio r conviction evidence” did not substantially influence the outcome of the tria l. Id. at 786. In United States
v. Wacker , 72 F.3d 1453, 1472 (10th Cir. 1995), we held, pre

- Old Chief , the district court abused its discretion in permitting the government to introduce evidence of the prior conviction after defendant of fered to stipulate to the element. Again, however, the court held the error was harmless in the face of substantial evidence of guilt. We therefore proceed on the basis Old Chief error is subject to harmless error review and conclude any error the district court might have made with respect to defendant’s Old Chief objection was harmless.- 7 -

We reach this conclusion because defendant’s stipul ation allowed the seemingly objectionable facts to go to the jury. A lthough defendant argues the government exacerbated the prejudicial effect of th e evidence by its subsequent examination of witnesses without objection and in r esponse to defendant’s prior testimony of good character, that argument is merit less because of his own judicial admission. Defendant next contends though the government had c harged him with possession of a .22 caliber rifle, it introduced an array of evidence of other firearms and ammunition of which he had no notice o r opportunity to rebut. He claims this resulted in a variance between the proo f and the charges. No objection was made to this evidence, and defendant recognizes this contention is also subject to harmless error analysis. The basis of this offering is the testimony of DawnGilbert, Glen Rose, and Robin Rose who were asked during the first phase ab out all of the guns at the house and Mr. Meeks’ using them to shoot coyote andother prey threatening his sheep and cattle. None of this evidence was introd uced during the second phase of the trial. “A variance arises when the evidence adduced at tri al establishes facts different from those alleged in an indictment.” United States v. Edwards, 69 F.3d 419, 432 (10th Cir. 1995). The variance is re versible error only if it affects- 8 -

the substantial rights of the accused. United States v. Ailsworth , 138 F.3d 843, 848 (10th Cir.), cert. denied, 119 S. Ct. 221 (1998). Defendant now argues the substantial right of whichhe was deprived was the right to notice. But, as the government points out, he received notice on July 28, 1997, one week before trial, that the gove rnment would offer “Inextricably Intertwined Evidence.” If that did n ot provide him ample time to prepare his defense, he made no effort to call the problem to the attention of the district court. Defendant also suggests the government was improper ly permitted to use the evidence of the presence of other weapons in hi s home to prove his guilt of the possession of a single firearm. However, the d istrict court carefully instructed the jury in phase two that the defendant was not on trial for any act or conduct not specifically charged in the indictment and that the only crime of which he was charged was the possession of a specific rifle. Un der these circumstances, we see no plain error. Finally, Mr. Meeks urges the evidence to support hi s conviction was insufficient and the court’s instruction on constru ctive possession was improper when all the evidence was directed to actual posses sion. His first point is underscored by his peroration on the inherent incre dibility of the witnesses in the first phase, and the second by the fact there was n o objection to the instruction.4 Dawn, Glen, and Robin did not testify in phase two. - 9 - In light of the way in which the evidence was prese nted in two phases, we find it difficult to follow the point defendant att empts to make about whether the jury could disbelieve the testimony about the sexua l offenses and still credit the testimony of the witnesses about the defendant’s po ssession of firearms. In phase two, the principal government witness was defendant ’s son who stated he left his own rifle in defendant’s house and recovered it aft er defendant’s arrest. 4 This was the rifle upon which the charge was predicated, and the son’s testimony clearly placed the rifle in a home owned and occupi ed by the defendant.
In United States v. Mills , 29 F.3d 545 (10th Cir. 1994), we reversed a § 922(g) conviction, stating the government must pr ove defendant knowingly possessed a firearm. Id. at 549. We noted actual or constructive possessio n satisfies the statute. Id. A person has constructive possession when he knowingly holds ownership, dominion, or control ove r the object and the premises where it is found. Id. (citations omitted). While the government may pro ve constructive possession by circumstantial evidence, it may be inferred if defendant has exclusive control of the premises. I n Mills , however, there was joint occupancy and the guns were placed in a garag e separate from defendant’s house. Here, there’s no question defendant had exc lusive possession of the house where the rifle was found. We believe the evidence was sufficient.- 10 -

Arguing the impropriety of the instruction, defendant relies on United
States v. James , 819 F.2d 674 (6th Cir. 1987), which reversed a co nviction and remanded for new trial because the only evidence in volved two different stories whether defendant was holding the gun or the office rs found the gun under the mattress. Mr. Meeks characterizes this case similarly – all of the evidence either sought to establish he owned this rifle or he didn’ t. Reviewing this allegation under plain error analysi s, we believe it is unavailing. Because the government’s evidence esta blished the presence of the rifle in the defendant’s house at a time when he wa s absent, it was proper for the jury to consider whether his possession of the weap on was constructive. The
James case is simply inapposite.
AFFIRMED

. ENTERED FOR THE COURT

John C. Porfilio Circuit Judge