Cite as U.S. v. Williams, 986 F.Supp. 1445 (D.Kan. 1997)

              United States of America, Plaintiff,

                               v.

                 Monte E. Williams, Defendant. 

                Criminal Action No. 97-10096-01.

            United States District Court, D. Kansas.

                         Nov. 26, 1997.

     Lanny D. Welch, Office of U.S. Attorney, Wichita, KS, for U.S.

     Timothy J. Henry, Office of Federal Public Defender, Wichita,
KS, for Defendant.

                             ORDER 

     BELOT, District Judge.

     Defendant stands charged in Counts 4 and 5 of an indictment
with violations of 18 U.S.C. section 922(n). Count 4 charges
defendant with possession of a firearm when he was under state
charges for a felony. Count 5 charges defendant with possession of
ammunition for the firearm charged in Count 4. Based on the
information contained in the file, it would appear that during a
police chase, defendant threw the loaded firearm from the vehicle
being pursued by the police.

     Defendant's motion is predicated on the language of 18 U.S.C.
section 922(n) which provides, in pertinent part: "It shall be
unlawful for any person who is under indictment for a crime
punishable by imprisonment for a term exceeding one year to ...
receive any firearm or ammunition which has been shipped or
transported in interstate ... commerce." The definition of
"indictment" is set forth in 18 U,S.C. section 921(a)(14): "The
term 'indictment' includes an indictment or information in any
court under which a crime punishable by imprisonment for a term
exceeding one year may be prosecuted."

     Defendant moves to dismiss Counts 4 and 5 on the basis that
the underlying state charge was prosecuted by
"complaint/information," a term which he claims is not within the
meaning of "indictment" as used in 18 U.S.C. section 922(n).
Defendant does not dispute that at least some of the charges set
forth in the "complaint/information" were felony charges.

     Defendant does not cite any authority of his position. The
Tenth Circuit has held that failure to cite authority forfeits the
argument. Phillips v. Calhoun, 956 F.2d 949, 953-54 (1992). In any
event, the court finds defendant's position to be one of semantics,
not substance. The court recently rejected a similar challenge to
18 U.S.C. section 842(i) in its Memorandum and Order of November 6,
1997. United States v. Fillman, 1997 WL 7613197, No. 96-10003 (D.
Kan.) (Doc. 34). In doing so, the court referenced 18 U.S.C.
section 922(n) and Schook v. United States, 337 F.2d 563, 567-68
(8th Cir. 1964) which rejected essentially the same argument
advanced by defendant in this case. For the same reasons as set
forth in Fillman, the court finds that the language of the
underlying charging document ("complaint/information") falls within
the definition of "indictment" for purposes of 18 U.S.C. section
922(n) and accordingly overrules defendant's motion to dismiss on
that stated ground.

     The court notes that Counts 4 and 5 charge defendant with
knowing and unlawful possession of the firearm and ammunition,
respectively. 18 U.S.C. section 922(n) does not specifically
criminalize "possession." Instead, it criminalizes "receipt."
Speaking with respect to section 922(n)'s predecessor statute, 18
U.S.C. section 922(h), courts have held that the term "receipt"
includes any knowing acceptance or taking possession of a weapon.
United States v. Lipps, 659 F.2d 960, 962 (9th Cir. 1981); United
States v. Martin, 732 F.2d 591, 592 (7th Cir. 1984); and United
States v. Solomon, 29 F.3d 961, 963-65 (5th Cir. 1994), cert.
denied 513 U.S. 1157, 115 S.Ct. 1115, 130 L.Ed.2d 1079 (1995) and
the cases cited therein. United States v. Goerlich, 729 F.2d 1168,
1170 (8th Cir. 1984) holds that receipt and possession of a firearm
are not synonymous but that possession is circumstantial evidence
of prior receipt. To the same effect see United States v. Craven,
478 F.2d 1329, 1336-37 (6th Cir.), cert. denied, 414,U.S. 866, 94
S.Ct. 54, 38 L.Ed.2d 85, reh'g denied, 414 U.S. 1086, 94 S.Ct. 606,
38 L.Ed.2d 491 (1973).

     In United States v. Larranaga, 614 F.2d 239, 241 (10th Cir.
1980), the Tenth Circuit observed that section 922(h)(1) proscribed
only the receipt by a felon of a firearm transported in interstate
commerce and that receipt and possession of a firearm are not
synonymous. The court rejected Larranaga's claim that section
922(h)(1), penalizes the same conduct as now-repealed 18 U.S.C.
App. section 1202(a), which proscribed possession. Larranaga has
not been cited in any subsequent Tenth Circuit cases. However, in
United States v. Hernandez, 913 F.2d 1506, 1513-14 (10th Cir.
1990), cert, denied 499 U.S. 908, 111 S.Ct 1111, 113 L.Ed.2d 220
(1991), the Tenth Circuit held in connection with 18 U.S.C. section
922(g)(5) that "it is not necessary to show that defendant actually
received a weapon to prove 'receipt' of a firearm under section
922; receipt may be established circumstantially by proving
possession. Section 922(g)(5) makes it unlawful for any alien
"illegally or unlawfully in the United States [to] receive any
firearm or ammunition which has been shipped or transported in
interstate or foreign commerce." This statute is thus close to
section 922(n) and suggests the conclusion that "receipt" for
purposes of section 922(n) likewise may be established
circumstantially by proving possession. However, the conclusion
does not directly answer the concern, if there is one, regarding
the use of the tenn "possession" in Counts 4 and 5 vis-a-vis the
"receipt" language of section 922(n). The parties are to submit
simultaneous briefs on this issue at the suppression hearing
scheduled for December 1, 1997.

     Finally, and in the alternative, defendant moves to dismiss
either Count 4 or Count 5 on the ground that they are
multiplicious. As defendant points out, the vice of multiplicity is
danger of multiple punishment for the same offense. United States
v. Segien, 114 F.3d 1014, 1022 (10th Cir. 1997). However, multiple
punishment does not appear to be a concern in view of the
guidelines. In any event, Counts 4 and 5 and are not the same.
Different elements are required. If the government had charged
defendant in a single count with violating section 922(n) by
possessing a firearm and ammunition, defendant might attack the
charge on the grounds of duplicity. United States v. Haddock, 956
F.2d 1534, 1546 (10th Cir.), cert. denied 506 U.S. 828, 113 S.Ct.
88, 121 L.Ed.2d 50 (1992).

     Defendant's motion to dismiss on the ground of multiplicity is
denied.

     IT IS SO ORDERED.