United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-4150

___________ United States of America, * * Appellee, * * Appeal from the Unite d States v. * District Court for the * Western District o f Missouri. Gerardo Meza-Borunda, also known * [UNPUBLISHED] as Martien E. Eyandaz, also known as * Borunda Gerardo, also known as * Gerardo Borunda, * * Appellant. *

___________ Submitted: June 25, 1997 Fil ed: July 16, 1997

___________ Be fore HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY , Circuit Judges.

___________ PER CURIAM. Gerar do Meza-Borunda (Borunda), co-defendant Richard Hixon, and Charle s Elmore were arrested after attempting to pick up a shipping container of ma rijuana fromThe Honorable Howard F. Sachs, United States District Judge for the Western 1 District of Missouri. -2- a freight company on January 22, 1996. Following a jury trial in the district court, 1 Borunda was convicted of att empting to possess marijuana with intent to distribute, in violation of

21 U.S.C. §§ 841(a)(1) and (b)(1)(B), 846, and 18 U.S.C. § 2; he wa s senten ced to 84 months of imprisonment and four years of supervised release. O n appeal, Borunda argues that Hixon’s and Elmore’ s trial testimony regarding uncharged marijuana transactions between themselves and Borunda preceding the January 2 2 arrest was inadmissible other-crimes ev idence under Federal Rule of Evidence 404(b).
As an initial matter, we note that the evidence of the uncharged marijuan a transactions may not be 404(b) evidence, but instead evidence of Borunda’ s participation in the charged conspiracy. See United States v. Aranda , 963 F.2d 211, 21 4 (8th Cir. 1992) (“Where the government has introduced evidence of act s commit ted by the defendant or a co-conspirator, during the time frame of th e conspira cy and in furtherance of it, . . . such evidence is not of ‘other crimes,’ bu t rather is evidence of t

he very crime charged.”). We nonetheless analyze the evidence under Ru le 404(b). Cf. United States v. Luna , 94 F.3d 1156, 1162 (8th Cir. 1996 ) (noting that where the dichotomy between intrinsic and extrinsic evidence is blurred, it matters little whether evidence is viewed as lying beyond the scope of Rule 404 or as satisfying the Rule 404(b) test).

We review the admission of Rule 404(b) evidence for abuse of discretion an d will find suc h abuse “only if it is clear the evidence had no bearing on any issue s involved in th e case.” United States v. Vaughn , 111 F.3d 610, 615 (8th Cir. 1997)

. Rule 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prov e the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of . . . intent , preparation, plan, knowledge, identity, or absence of mistake or acciden t." Rule 404(b)-3-

is a rule of inclusion that precludes only admission of evidence that is relevant solely to the defen dant's character. United States v. Jones , 990 F.2d 1047, 1050 (8th Cir

. 1993), cert. denied , 510 U.S. 1048 (1994). Thus, evidence of other crimes or bad acts is admissible if (1) it is relev ant to a material issue raised at trial; (2) there is sufficient evidence to support a finding that the defendant committed the act; (3) the probativ e valu e of the evidence substantially outweighs its potential prejudice; and (4) th e evidence is similar in kind and reasonably close in time to the crime charged. United State s v. Sutton , 41 F.3d 1257, 1259 (8th Cir. 1994), cert. denied , 115 S. Ct. 171 2 (1995).

We concl ude these requirements were satisfied here, given the corroboratin g testimony of Elmore and Hixon, the similarity of parties and the close ness in time of the ot her marijuana transactions to the charged offense, the fact that Borunda placed a t issue his knowledge of the attempted marijuana pick-up, and the court’s instruction to th e jury regarding the limited use of other-crimes evidence. See United States v

. Thomas , 58 F.3d 1318, 1321 (8th Cir. 1995) (Rule 404(b) evidence admissible when defendant places state of mind at issue, even if done by means of general-denia l defense); United States v. Mihm , 13 F.3d 1200, 1205 (8th Cir. 1994) (Rule 404(b ) evidence admissible where knowledge and intent are at issue and "wrong place a t wrong time" defense is asserted); United States v. Sykes , 977 F.2d 1242, 12 46 (8th Cir. 1992) (Rule 404(b) evidence of other crime properly a dmitted and more probative than prej udicial where other crime was virtually identical to charged offense and occurred only eight months later, and court provided limiting instruction to jury).

Bor unda also contends the government failed to provide pre-trial notice of it s intent to introduce other-crimes evidence. Because Borunda did not object below to this alleged lack of notice, we review for plain error, and we find none. See Unite d States v. Robinson , 110 F.3d 1320, 1325-26 & n.3 (8th Cir. 1997). Accordingly, we affirm the judgment of the district court.-4-

A true copy.
Attest:
CLERK , U. S. COURT OF APPEALS, EIGHTH CIRCUIT

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