UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

CLARK, ANDRE P.


97-3168a

D.C. Cir. 1999


*	*	*


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


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


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.


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


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


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


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


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 




__________

n 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


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.




__________

n 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-


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 




__________

n 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


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 




__________

n 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.


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


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


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, 




__________

n 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.


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.