United States Court of Appeals

For the Eighth Circuit

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No. 11-3776

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

William Stegmeier

lllllllllllllllllllll Defendant - Appellant

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Second Amendment Foundation; Montana Shooting Sports Association; The Fully

Informed Jury Association

lllllllllllllllllllllAmici on Behalf of Appellant

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 Appeal from United States District Court 

for the District of South Dakota - Sioux Falls

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 Submitted: October 19, 2012

 Filed: December 13, 2012

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Before LOKEN, SMITH, and BENTON, Circuit Judges.

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BENTON, Circuit Judge.
William “Bill” Stegmeier was convicted of harboring a fugitive and providing

a firearm to a prohibited person after allowing a felon to stay in his recreational

vehicle. He appeals his conviction for insufficiency of the evidence, improper use of

a special verdict form, and faulty jury instructions. Stegmeier also contends that the

firearm conviction violates his Second Amendment rights. Having jurisdiction under

28 U.S.C. § 1291, this court affirms.

I.

Thomas R. Kelley was convicted on several tax and financial charges. In

August 2010, he failed to appear for sentencing, becoming a fugitive from justice. 

Kelley asked his friend Stegmeier for a place to stay. Stegmeier permitted Kelley to

stay in his recreational vehicle, which was parked at Stegmeier’s home in South

Dakota. As Stegmeier gave Kelley a tour of the RV, Stegmeier told him there was a

handgun in the closet. Stegmeier said nothing about his permission (or lack thereof)

to touch or use the firearm. 

A few weeks later, Stegmeier’s company began a project in Minnesota. Kelley

joined the project as an independent contractor. The two men took the RV to

Minnesota. Once there, Kelley continued to reside in the RV. To pay Kelley for his

work on the project, the company secretary made checks out to “Cash,” Stegmeier

cashed them, and gave the proceeds to Kelley. This arrangement was unique to

Kelley.

A company employee testified that Stegmeier showed him a website listing

Kelley as the number two most-wanted-man in the county. Another employee

contradicted that testimony. At some point, Kelley moved the RV into a metal shed,

which he claims was to keep it out of the cold. Through an anonymous tip, authorities

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learned Kelley’s whereabouts and arrested him in December 2010.1

 Stegmeier

consented to a search of the RV and disclosed that the closet contained a firearm. The

police located the gun in a compartment next to the bed, near Kelley’s wallet. 

Stegmeier told police that Kelley “must have moved it.”

Stegmeier was charged with harboring a fugitive, accessory to failure to appear,

and providing a firearm to a prohibited person. The government dismissed the

accessory charge, and a jury convicted Stegmeier on the remaining two counts. 

Stegmeier appeals, arguing that the evidence was insufficient. He also alleges that the

district court2

 erred by using a special verdict form and giving improper jury

instructions. Finally, Stegmeier invokes his Second Amendment rights.

II.

Stegmeier contends that there was insufficient evidence to convict him of

harboring a fugitive and providing a firearm to a prohibited person. This court

reviews de novo the denial of a motion for acquittal based on insufficiency of the

evidence. United States v. Burrage, 687 F.3d 1015, 1023 (8th Cir. 2012).

On review, evidence is viewed most favorably to the verdict, giving it

the benefit of all reasonable inferences. Reversal is appropriate only

where no reasonable jury could find all the elements beyond a reasonable

doubt. This court does not weigh the credibility of the witnesses or the

evidence. The jury has the sole responsibility to resolve conflicts or

contradictions in testimony, and credibility determinations are resolved

in favor of the verdict.

Id., quoting United States v. Aldridge, 664 F.3d 705, 715 (8th Cir. 2011).

1

Kelley was convicted for his failure to appear. In a consolidated appeal, this

court affirmed his convictions. United States v. Kelley, 477 F. Appx. 401 (8th Cir.

2012).

2

The Honorable Lawrence L. Piersol, United States District Judge for the

District of South Dakota.

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A.

Harboring a fugitive under 18 U.S.C. § 1071 has three elements: “(1) the

defendant had specific knowledge that a federal warrant had been issued for the

person’s arrest, (2) the defendant harbored or concealed the person for whom the

arrest warrant had been issued, and (3) the defendant intended to prevent the person’s

discovery and arrest.” United States v. Hayes, 518 F.3d 989, 993 (8th Cir. 2008),

citing United States v. Hash, 688 F.2d 49, 52 (8th Cir. 1982) (per curiam). 

Stegmeier characterizes the evidence of his knowledge of Kelley’s fugitive

status as “slender and contested.” This court does not, however, make credibility

determinations – those determinations are left to the jury. United States v. Van

Nguyen, 602 F.3d 886, 901 (8th Cir. 2010). According to the evidence, in 2010

Stegmeier knew Kelley was facing criminal tax charges. A coworker testified that

Stegmeier discovered that Kelley was number two on the county’s most-wanted-list. 

Kelley’s wife testified that while visiting Kelley and Stegmeier, they openly discussed

that Kelley was on the run. Viewing the evidence most favorably to the verdict, there

is sufficient evidence that Stegmeier knew of Kelley’s fugitive status.

Stegmeier asserts that there is no evidence of a physical act, which is required

to show concealment of the fugitive. United States v. Zerba, 21 F.3d 250, 252 (8th

Cir. 1994). Providing the fugitive a place to stay, however, satisfies the requirement

for physical assistance. United States v. Erdman, 953 F.2d 387, 391 (8th Cir. 1992). 

While the defendant in Erdman did more than provide a place to stay, this court listed

that as one fact that the jury could have relied on. See id. This court reaffirmed that

view in Hayes, where the defendant argued that lying to the police was insufficient to

convict her of harboring. Hayes, 518 F.3d at 994. This court held that she did more

than lie: “she continued to provide [the fugitive] a place, or shelter, in which he could

attempt to avoid apprehension.” Id. Stegmeier similarly provided shelter to Kelley. 

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Further, Kelley’s wife testified that Stegmeier stated he “would hide him” if

authorities arrived.

Stegmeier notes that most reported cases of harboring a fugitive involve lying

to the police, but this is not a requirement. See, e.g., United States v. Hudson, 102 F.

Appx. 127, 132-33 (10th Cir. 2004) (upholding a harboring conviction absent a

finding that the defendant lied to the police); United States v. Hill, 279 F.3d 731, 738

(9th Cir. 2002) (same); United States v. Green, 180 F.3d 216, 221 (5th Cir. 1999)

(same). Specific knowledge of fugitive status, a physical act, and the intent to conceal

is all that is required. Zerba, 21 F.3d at 252. Stegmeier gave Kelley a place to stay,

employed him, accompanied him to Minnesota, and engineered a pay arrangement

that avoided reporting to the government. There is sufficient evidence to convict

Stegmeier of harboring a fugitive.

B.

Stegmeier believes the evidence was insufficient to convict him of providing

a firearm to a prohibited person. “It shall be unlawful for any person to sell or

otherwise dispose of any firearm or ammunition to any person knowing or having

reasonable cause to believe that such person [is a prohibited person] . . . .” 18 U.S.C.

§ 922(d). Prohibited persons include felons and fugitives. Id. § 922(d)(1), (2). 

Stegmeier contends that he did not “dispose of” the firearm to Kelley.

“To dispose of” occurs when a recipient “‘comes into possession, control, or

power of disposal of a firearm.’” United States v. Monteleone, 77 F.3d 1086, 1092

(8th Cir. 1996), quoting Huddleston v. United States, 415 U.S. 814, 823 (1974). The

Seventh Circuit questioned this court’s definition in Monteleone, however, on two

grounds: (1) because Monteleone’s conviction was reversed on other grounds, the

“dispose of” discussion is dicta; (2) reliance on Huddleston is improper because the

statute there covered “acquiring” a firearm, not “dispose of” a firearm. United States

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v. Jefferson, 334 F.3d 670, 674 (7th Cir. 2003). The Seventh Circuit then approved

this definition of “dispose of”: “to transfer a firearm so that the transferee acquires

possession of the firearm.” Id. at 675.

Under either definition, a recipient’s possession is sufficient proof that a

defendant disposed of a firearm. Constructive possession is “control over the place

where the firearm was located, or control, ownership, or dominion of the firearm

itself.” United States v. Perez, 663 F.3d 387, 391 (8th Cir. 2011), quoting United

States v. Cox, 627 F.3d 1083, 1085 (8th Cir. 2010). Even assuming Stegmeier did not

give Kelley title or ownership of the firearm, he did give Kelley full, unrestricted

control over the RV where the firearm was. Stegmeier believes that the district court

knew the case was weak because there was no evidence that Kelley actually possessed

the firearm. However, the jury may use circumstantial evidence. Id.; Sera v. Norris,

400 F.3d 538, 544 (8th Cir. 2005). It heard evidence that Stegmeier gave Kelley

access to the entire RV and disclosed the specific location of the firearm. When police

located it outside of the closet – near Kelley’s wallet – Stegmeier said that Kelley

“must have moved it.” There is sufficient evidence for the jury to find that Stegmeier

provided a firearm to a prohibited person.

III.

Stegmeier and two amici3

 contend that upholding the conviction violates his

Second Amendment rights. They believe it amounts to “host liability,” whereby hosts

are guilty of providing a firearm to a prohibited person by inviting them into a home

that has a gun. This court reviews alleged constitutional errors de novo. United

States v. Sweeney, 611 F.3d 459, 473 (8th Cir. 2010). This court need not address

3

The Second Amendment Foundation and the Montana Shooting Sports

Association.

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constitutional issues unless required to do so to decide the case. Cochenour v.

Cochenour, 888 F.2d 1244, 1245-46 (8th Cir. 1989).

The Second Amendment guarantees the right to keep a weapon in one’s home,

especially for the purpose of self-defense. District of Columbia v. Heller, 554 U.S.

570, 635 (2008). That right is not unlimited. The Supreme Court recognized the

continued validity of statutes prohibiting felons from possessing firearms. Id. at 626-

27. “Host liability” is not raised by the facts of this case. Stegmeier did not violate

the statute by merely inviting Kelley into his home. Rather, he gave Kelley control

of the RV for approximately three months and specifically disclosed the location of

the firearm.

Because the facts of this case do not present the issue of host liability, this court

need not entertain the constitutional implications of that argument. The conviction did

not violate Stegmeier’s Second Amendment rights.

IV.

Over Stegmeier’s objection, the district court used a special verdict form. The

use of a special verdict form is reviewed for abuse of discretion. United States v.

Lamoreaux, 422 F.3d 750, 756 (8th Cir. 2005).

The firearm charge required the government to prove that Stegmeier disposed

of a weapon to a prohibited person. 18 U.S.C. § 922(d). There are four classes of

prohibited persons – relevant here are (1) felon and (2) fugitive. Id. § 922(d)(1), (2). 

The district court sought to ensure that the jury reached unanimity that Stegmeier

knew Kelley was a felon, and/or unanimity that Stegmeier knew he was a fugitive. 

In addition to so instructing the jury, the district court required the jury to answer

special interrogatories:

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Did you unanimously agree that the defendant knew or had reasonable

cause to believe that Thomas R. Kelley had been convicted of a crime

punishable by imprisonment for a term exceeding one year?

____ YES ____ NO

Did you unanimously agree that the defendant knew or had reasonable

cause to believe that Thomas R. Kelley was a fugitive from justice?

____ YES ____ NO

Stegmeier objected to both special interrogatories during and after trial.4

 The district

court denied relief both times. According to the district court, the use of the special

verdict form was for Stegmeier’s benefit, ensuring that the jury reached specific

unanimity and clarifying its findings for appeal. 

The use of a special verdict form is generally disfavored in criminal cases. 

Gray v. United States, 174 F.2d 919, 923-24 (8th Cir. 1949); United States v. Pierce,

479 F.3d 546, 551 (8th Cir. 2007). Special verdict forms are appropriate and effective

in some circumstances. United States v. Ryan, 9 F.3d 660, 670-71 (8th Cir. 1993),

vacated in part on other grounds but reinstated as to the special verdict form, 41 F.3d

361, 362 (8th Cir. 1994) (en banc).

Stegmeier is correct that, contrary to the district court’s ruling, the charge in this

case is not duplicitous. Duplicity occurs when distinct and separate offenses are

joined together in the same count. United States v. Pietrantonio, 637 F.3d 865, 869

(8th Cir. 2011), citing United States v. Nattier, 127 F.3d 655, 657 (8th Cir. 1997). 

Duplicity is problematic because it “might lead the jury to convict without unanimous

agreement on the defendant’s guilt with respect to a particular offense.” Id., citing

Nattier, 127 F.3d at 657. The firearm count in this case is not duplicitous because it

alleges one violation of one statute – providing a firearm to a felon can not be charged

4

The Fully Informed Jury Association, as amicus, supports this argument on

appeal.

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separately from providing a firearm to a fugitive.5

 See United States v. Richardson,

439 F.3d 421, 422 (8th Cir. 2006) (en banc) (per curiam) (“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.”).

Duplicitous charges, however, are not the only occasion for a special verdict

form. A similar concern is present here: unanimity as to a finding of guilt. This case

is an appropriate circumstance for a special verdict form. As the Ninth Circuit

explained: “Where a special verdict form requires the jury to determine the occurrence

of any of a series of acts, each of which is sufficient to constitute the indicted crime,

the traditional concerns regarding special verdicts are not implicated.” United States

v. Reed, 147 F.3d 1178, 1181 (9th Cir. 1998).

As in Ryan, this court holds that the district court did not abuse its discretion

by using a special verdict form in this case.

[T]he questions posed by the judge in the interest of clarity,

completeness, and avoidance of the retrial of a lengthy case, evidence no

elements of control or restriction by the court. The judge did not infringe

upon the jury’s power to freely deliberate, did not require the jury to

justify its actions, and did not ask “why” the jury arrived at its decision. 

Nor did the court challenge the jury’s power to ignore the court’s

instructions if it so desired, require the jury to set aside its most valuable

asset as fact finder (collective common sense), or direct the jury,

intentionally or unintentionally, to follow a course initiated by the court.

Ryan, 9 F.3d at 671.

5

The risk of truly duplicitous charges may be cured by a limiting instruction, but

no authority from this court holds that an instruction is the exclusive remedy or that

a special verdict form would not be permitted. See United States v. Karam, 37 F.3d

1280, 1286 (8th Cir. 1994) (holding that a limiting instruction cured the danger of a

duplicitous charge).

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V.

Stegmeier and amicus6

 object to two jury instructions. This court reviews the

district court’s formulation of instructions for abuse of discretion, and reverses only

if the alleged error was prejudicial. United States v. Mitchell, 613 F.3d 862, 867 (8th

Cir. 2010). This court will affirm if the “entire charge to the jury, when read as a

whole, fairly and adequately contains the law applicable to the case.” United States

v. Wisecarver, 644 F.3d 764, 772 (8th Cir. 2011), quoting United States v. Webster,

442 F.3d 1065, 1067 (8th Cir. 2006).

A.

The first instruction reads:

. . . .

Keep constantly in mind that it would be a violation of your sworn

duty to base a verdict upon anything other than the evidence received in

this case and the instructions of the Court. . . .

Stegmeier contends that this language threatens the jury and prohibits them from

exercising their right to find a verdict of not guilty on any grounds whatsoever, even

if those grounds are unreasonable. To the contrary, the language is not overtly

intimidating or threatening. It does not specify any punishment or direct the jury

toward one verdict or the other. Stegmeier cites numerous cases holding that the jury

can disregard instructions and the law, and reach any verdict they wish – even if

unreasonable. See, e.g., Jackson v. Virginia, 443 U.S. 307, 317 n.10 (1979). He cites

no authority, however, holding that a jury should be instructed on that basis, or that

it is an abuse of discretion to instruct the jury to base the verdict on the evidence and

instructions in the case. See, e.g., United States v. Scout, 112 F.3d 955, 961 (8th Cir.

1997) (jury-nullification instructions not required). “[F]ederal courts have uniformly

6

The Fully Informed Jury Association.

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recognized the right and duty of the judge to instruct the jury on the law and the jury’s

obligation to apply the law to the facts . . . .” United States v. Drefke, 707 F.2d 978,

982 (8th Cir. 1983) (per curiam).

Further, to warrant reversal, Stegmeier must prove prejudice. Mitchell, 613

F.3d at 867. Here, the instruction was not prejudicial. The instruction was beneficial

to Stegmeier because it directed the jury to look at the evidence presented, thereby

ignoring speculation, conjecture, or pre-conceived notions.

The district court did not abuse its discretion by giving this instruction.

B.

The second instruction reads:

. . . .

If both of these elements have been proved beyond a reasonable

doubt as to the defendant, then you must find the defendant guilty of the

crime of Providing a Firearm to a Prohibited Person; otherwise you must

find the defendant not guilty of the crime.

. . . .

Stegmeier believes that “can” or “may” should replace the first “must” because a jury

can find a defendant not guilty on any ground it wishes. This court previously

rejected that argument. United States v. Kroh, 915 F.2d 326, 335 (8th Cir. 1990) (en

banc). Stegmeier contends that Kroh is not applicable because the review was only

for plain error. The language of Kroh rebuts that argument. See id. (“We find that the

instructions as given constitute no error of any kind.”) (emphasis added). In any

event, this court subsequently reaffirmed that Kroh forecloses Stegmeier’s argument. 

United States v. Moore, 149 F.3d 773, 779 n.4 (8th Cir. 1998). The logic from Kroh

applies here: the language in the instruction does not usurp the jury’s role.

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The district court did not abuse its discretion by giving this instruction.

* * * * * * *

The judgment of the district court is affirmed.

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