### The Honorable Richard H. Battey, Chief United States District 1 

### Judge for the District of South Dakota, sitting by designation.
Th e Honorable Thomas M. Shanahan, United States Distric t 2 

### Judge for the District of Nebraska.
1 

# United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 96-2897NE

United States of America, * * Plaintiff/Appellee, * Appeal from the United States * District Court for the v. * District of Nebraska. * Anthony Emmanuel, * * Defendant/Appellant. *

Submitted: February 11, 1997 Filed: May 5, 1997
Before RICHARD S. ARNOLD, Chief Judge, HANSEN, Circuit Judge, and BATTEY, Chief District Judge.

1
BATTEY, Chief District Judge. Appellant Anthony Emmanuel (“Emmanue l”) was convicted for conspiring to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. At sentencing the district court calculated Emmanuel’s range o f 2 imprisonment at 57 to 71 months, based on criminal history category III an d total o ffense level 23. The court sentenced Emmanuel to sixty months ’ impr isonment applying the minimum sentence requirement contained in 2 1 U.S.C. § 841(b)(1)(B)

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(viii). Emmanuel challenges his conviction based on the district court’s admission of the following: (1) firearms seized from his residence and a co-conspirator’s resi dence; and (2) testimony of Emmanuel’s ex-girlfriend concerning uncharged methamphetamine distribution and physical abuse. He challenges his sentence based on the district co urt’s determinations as to the following: (1) th e finding as to the type of methamphetamine; (2) the enhancement of the sentence under U.S.S.G. § 2D1.1(b)(1) for possession of a firearm during t he commission of a crime; and (3) the classification of methamphetamine in the schedules. We affirm his conviction and sentence

.

I. TRIAL ISSUES

A. Firearms Evidence

Emmanuel asserts that the district c ourt erred in admitting evidence of firearms seized fr om his residence and the residence of co-conspirator Michael Crestoni (“Crestoni”). He contends that the firearms were no t relevant on the quest ion of his guilt or the existence of a conspiracy to distribute methamphetamine, and that their prejudicial effect outweighed their probative value under Federal Rule of Evidence 403. We review the district court’s evidentiary ruling on the admis sion of the firearms under the abuse of discretion standard. See United States v. Jackson , 67 F.3d 1359, 1366 (8th Cir. 1995); Old Chief v. United States , U.S. , 117 S . Ct. 644, 647 n.1, 136 L. Ed. 2d 574 (1997). The district court’ s discretion is particularly broad in the context of a conspiracy trial

. United St ates v. Logan , 54 F.3d 452, 454 (8th Cir. 1995) (citing Unite d States v. Searing , 984 F.2d 960, 965 (8th Cir. 1993)).

### 3 Six firearms, consisting of five sho tguns and one .22 caliber rifle,
were seized at Emmanuel’s residence. They were uncased and found i n Emm anuel’s master bedroom. Most of the weapons were loaded. Controlle d substa nces, as well as other drug paraphernalia, were also discovere d throughout Emmanuel’s residence including: (1) a baggie containing smaller ziploc baggies in the master bedroom on the dresser adjacent to the bed; (2) a T anita electronic scale in the basement; (3) baggies containin g methamphetamine residue in the basement; and (4) a scale and roach clip in a dish in the dining room.

Two fire arms were seized at Crestoni’s residence consisting of a loaded le ver action 30-30 rifle found in an unfinished attic and a 10m m semi-automatic pistol with a round loaded in the chamber located on a shel f above the kitchen door. At trial Crestoni testif ied that both weapons were used for protection from drug thieves. Controlled substances, as well as ot her drug paraphernalia, were also discovered throughout Crestoni’ s residence including: (1) purported drug records on the dining room table which did not referen ce Emmanuel; (2) a Tanita electronic gram scale in a chest of drawers in the dining room; (3) an envelope containing two plasti c baggies with methamphetamine on the dining room table; and (4) a camera ba g containing three plastic baggies with methamphetamine in a kitche n cupboard. The record establishes evidence affirmatively linking Crestoni’ s drug conspi racy to Emmanuel. Crestoni testified that he began receivin g metha mphetamine from one James Ryan (“Ryan”) in the summer of 1993. I n early 1994, Crestoni began receiving as much as sixteen ounces o f methamphetamine weekly from Ryan. During the ti me frame of late spring to early summer of 1994, through the date of his arrest on August 5, 1994, th e amount of methamphetamine increased to as much as three pounds per week. Crestoni paid Ryan

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$8,000 cash for each pound. Crestoni would re-weigh and re-package th e methamphetamine into ounce quantities in plastic baggies similar to those seized at Emmanuel’s residence. The drugs were t hen distributed at a price of $1,000 per ounce. Crestoni identified Emmanue l as one of his customers. He estimated that he sold methamphetamine to Emmanuel three to four times in amounts varying from two to six ounces at a t ime during the conspiracy. Emmanuel paid cash fo r the deliveries which took place at both Emmanuel’s and Crestoni’s residences.

It is th e law of this circuit that “[t]he presence of loade d firearms in the house where the drug transactions occurred is evidence tha t the weapons were used to facilitate the drug tra fficking.” Logan , 54 F.3d at 454 (citing United States v. Watson , 953 F.2d 406, 409 (8th Cir. 1992))

. The drugs and drug paraphernalia found throughout the house were i n prox imity to the weapons. The availability of the loaded firearms i n Emmanuel’s residence was relevant on the issue of the existence of the dru g conspiracy

. Id. ; Jackson , 67 F.3d at 1367. As was the case with th e firear ms seized at Emmanuel’s residence, the loaded firearms seized a t Cre stoni’s residence where drug transactions occurred and dru g para phernalia were seized are evidence that the weapons were used t o facilit ate the drug trafficking. See Logan , 54 F.3d at 454. Moreover , Crestoni highlighted the weapons’ significance to the conspiracy when he testified that the two weapons seized in his house were used for protectio n aga inst drug thieves. The availability of the loaded firearms i n Cresto ni’s residence is also relevant for purposes of establishing th e conspiracy of which Emmanuel was charged. Id. ; Jackson , 67 F.3d at 1367. Emmanuel invites us to apply Bailey v. United States , U.S.

, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1996), to require the government to prove that the weapons were used or intended to be

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used in order for the weapons to be admissible in a drug conspiracy case. We decline the invitation. Bailey involved conviction under 18 U.S.C. § 924(a)(1) which crimi nalized “use” of a firearm during and in relation to
a drug trafficking offense. In such case the statute requires evidenc e sufficient to show active employment of a firearm by a defendant. Th e firearms found in the houses of Emmanuel and Cre stoni were relevant on the issue of the existence of the drug conspiracy. The government was no t required to prove “use” under the Bailey standard as a predicate t o admissibility. The court did not err in the admission of this evidence.

B. Rule 404(b) Evidence

Emmanuel asserts that the district court erred in admitting co

con spirator Connie Kissel’s (“Kissel”) testimony regarding Emmanuel’ s obtaining methamphetamine from Crestoni prior to the time frame of th e allege d conspiracy and his assaultive behavior toward her. The claime d
assau lt was not included in the government’s Rule 404(b) notice or th e pretri al discussions. It was raised in response to the prosecutor’ s question as to how or why Kissel remembered her relationship ended wit h Emmanuel on February 8, 1994. She responded that was when “he beat me up.” Emmanuel did not preserve an objection, and there was no further mention of the subject. We find no plain error.

Prior to trial, the government filed an amended notice of intent to
use Rule 404(b) evidence which included Kissel’s testimony pertaining to Emmanuel’s prior drug activity. Kissel had been involved in a relationshi p with Emmanuel from March of 1993 until February 8, 1994. Emmanuel objected to the government’s notice that Kissel would provide testimony regarding Emmanuel’s obtaining methamphetamine from Crestoni during the time frame of

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their relationship. His objection was that the testimony concerned a perio d outside the alleged c onspiracy time frame of June 1994 to August 5, 1994. The district court made a preliminary determination that Kissel’s testimon y would be excluded because it was outside the time period of the conspiracy

. However, at trial the district court admitted the testimony conditionally under United States v . Bell , 573 F.2d 1040 (8th Cir. 1978). The evidence was admitted to show Emmanuel’s knowledge concerning the objective of the conspiracy, his relationship to any co-conspirators including Crestoni, an d the availability of methamphetamine.

Befor e admitting Kissel’s testimony regarding Emmanuel’s conduc t during a period prior to the alleged conspiracy, the district cour t provided the jury with a Rule 404(b) cautionary instruction. The cour t instructed the jury that Kissel’s testimony should only be considered to establ ish: (1) Emmanuel’s knowledge of the alleged conspiracy; (2) hi s intent to distribute and possess with intent to distribute; (3) his plan to join th e alleged conspiracy; (4) his opportunity to enter into th e alleged conspiracy; or (5) the absence of mistak e or accident by Emmanuel. Kissel testified that she had known Crestoni for fifteen to twent y years and had purchased methamphetamine from him in the latter part of 199 3 and during the summer months of 1994. She also stated that she had known Emmanu el for approximately fifteen years and that their romanti c relationship began in March of 1993, and ended on February 8, 1994, as a
resu lt of Emmanuel’s assault at which time she moved into Crestoni’ s reside nce. She testified that although she had never actually witnesse d Emmanuel receive methamphetamine from Crestoni, Emmanuel had told her that he had received methamphetamine from him. During the time frame of lat e 1993, through the time of their breakup on Febru ary 8, 1994, she indicated that Emmanuel told her that he purchased one ounce of

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methamphetamine every one to two weeks from Crestoni. Kissel also provide d testimony as to Emmanuel’s drug activity during the time frame of th e conspiracy. She stated that irrespective of their breakup, she and Emmanue l had weekly contact during the time of the alleged conspiracy which ran fro m June of 1994 to August 5, 1994. Emmanuel disclosed to her that during thi s time period he was selling “three or four ounces a week” which sh e understood to mean methamphetamine.

Prior ba d acts may be admitted under Rule 404(b) to demonstrat e motive, opportunity, intent, preparation, common plan, knowledge, identity , or absence of mistake or accident. To be admissible, evidence must als o meet the following conditions: (1) it must be relevant to a material issue ; (2) the bad act must be reasonably similar in kind and close in time to the crime charged; (3) it must be sufficient to support a jury finding tha t the defendant committ ed the prior act; and (4) the probative value of the evidence must outweigh its prejudicial effect. United States v. Edwards , 91 F.3d 1101, 1103 (8th Cir. 1996) (citing United States v. Jones , 990 F.2 d 1047, 1050 (8th Cir.), cert. denied , 510 U.S. 10 48, 114 S. Ct. 699, 126 L. Ed. 2d 666 (1994)). See also United States v. Dobynes , 905 F.2d 1192, 1194

- 95 (8th Cir. 1990). The district court has broad discretion to admi t evidence of other bad acts under Rule 404(b) unless the evidence tends to prove only the defend ant’s criminal disposition. United States v. Crouch , 46 F.3d 871, 875 (8th Cir. 1995) (citing United States v. Sykes , 977 F.2d 1242, 1246 (8th Cir. 1992)). We review the district court’s evidentiary rul ing on the admission of Rule 404(b) evidence under the abuse o f discretion standard. Edwards , 91 F.3d at 1103 (citing United States v

. Huff , 959 F.2d 731, 736 (8th Cir.), cert. denied , 506 U.S. 855, 113 S. Ct. 162, 121 L. Ed. 2d 110 (1992)).

### 8 Kiss el’s testimony regarding Emmanuel’s distribution o f met hamphetamine from late 1993 to February 8, 1994, is admissible unde r Rule 404(b). The dist rict court did not abuse its discretion in admitting Kissel’s testimony regarding Emmanuel’s uncharged methamphetamin e distribution. Kissel’s testimony concerning Emma nuel’s prior drug activity
was admissible since it was relevant; its probative value outweighed its prejudicial effect; the prior drug activity was reasonably similar in kind and cl ose in time to the crime charged; and the record indicates th e evidence was sufficient to support a jury findin g that Emmanuel engaged in the prior drug activity. See, e.g. , United States v. Moore , 98 F.3d 347, 350 (8th Cir. 1996); United States v. Shoffner , 71 F.3d 1429, 1432-33 (8th Cir. 1995).

II. SENTENCING ISSUES

Emmanuel contends that the district court erred in determining that the me thamphetamine involved was a Schedule II controlled substance an d that it was d-methamphetamine as opposed to l-methamphetamine.

The stat utory mandatory minimum provides that in a case where a defendant is found guilty of a violation of the Controlled Substance Act inv olving “10 grams or more of methamphetamine, its salts, isomers, an d salts of it s isomers or 100 grams or more of a mixture or substanc e containing a detectab le amount of methamphetamine, its salts, isomers, or salts of its isomers . . . such person shall be sentenced to a term o f impriso nment which may not be less than 5 years . . . .” 21 U.S.C. § 841(b)(1)(B)(viii).

The court sentenced Emmanuel to sixt y months’ imprisonment, applying the mandatory minimum sentence required by 21 U.S.C.

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§ 841(b)(1)(B)(viii). Emmanuel attempts to dis tinguish between d- and lmethamphetamine to avoid application of the statutory mandatory minimu m which by its own terms makes no distinction. Accordingly, Emmanuel’ s argument lacks merit. The mandatory minimum sent ence prescribed by statute trumps Emmanuel’s claim of error as to the type of methamphetamine. United States v. Massey , 57 F.3d 637 (8th Cir. 1995).
Finally, Emmanuel urges that the district court erred by applyi ng the two-level enhancement pursuant to U.S.S.G. § 2D1 .1(b)(1) for possession of
a firearm during the commission of a crime. The presentence report provide d for a presumptive sen tence of 57 to 71 months. The district court applied the mandatory minimum of 60 months. Again, the mandatory minimum trumps this objection.

IV. CONCLUSION

For the reasons enumerated above, the judgment and sentence ar e affirmed.
A true copy.

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