1 The Honorable Paul A. Magnuson, United St ates District Judge for the District of Minnesota, sitting by designation.

2The Honorable Charles A. Shaw, United St ates District Judge for the Eastern District of Missouri. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 05-3876

___________ United States of America, *
* Plaintiff-Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri Charles Edward Shurn, * * [UNPUBLISHED] Defendant-Appellant. *

___________ Submitted: March 16, 2006 Filed: June 29, 2006

___________ Before ARNOLD and SMITH, Circuit Judges, and MAGNUSON, 1 District Judge.

___________ MAGNUSON, District Judge.

A jury convicted Charles Edward S hurn of possession with the intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1). Shurn appeals the denial by the district court 2of his pretrial motion to dismiss the indictment. He also appeals the-2- admission of evidence of his prior conviction for possession of heroin. We affirm the district court on both grounds.

BACKGROUND

St. Louis Police Detective Thomas Sawy er began investigating Shurn after he received an anonymous phone call about Shurn’ s suspected narcotics dealing. During the course of the investigation, Detectiv e Sawyer learned that Shurn was on federal supervised release under the supervision of Probation Officer Clinton Vestal, who happened to be Detective Sawyer’s friend. Detective Sawyer contacted Vestal to verify some addresses associated with S hurn, and police officer s began surveillance of Shurn at these locations.

Over the next several months, Detective Sawyer and Vestal spoke four to eight times about Shurn’s actions on supervised re lease. On February 26, 2004, Vestal told Detective Sawyer that he had received an anonymous phone call relating that Shurn was abusing his fiancee. On May 17, 2004, Detective Sawyer told Vestal that the police believed Shurn was selli ng heroin, and Vestal replie d that he intended to send Shurn to a drug rehabilitation program. Three days later, Vestal learned that Shurn had abandoned the program, and he phoned De tective Sawyer to ask if the police knew where Shurn was.

As a condition of supervision, Shurn was required to undergo substance abuse testing, and he tested positive for opiates several times in April 2004. Based on the positive drug tests and Shurn’s abandonment of the drug rehabilitation program, Vestal decided to petition for a revocation of Shurn’s supervised release. The district court revoked supervision and issued an arrest warrant. On June 1, 2004, a Deputy United States Marshal told Detective Sawyerthat a revocation warrant had issued for Shurn’s arrest.-3- Detective Sawyer drove an unmarked car to several locations associated with Shurn, and he ultimately found Shurn in the front yard of one of the houses. Two other officers began surveillance while Det ective Sawyer and other officers assembled to execute the warrant. Th e surveilling officers saw Shurn make three hand-to-hand transactions within a few minut es. Shurn then left the premises in a vehicle, and the officers gave chase, activating their lights and siren. One of the officers fired a gun, and Shurn sped away. The chase lasted three to five minutes, ending when Shurn’s vehicle collided with two other cars. Shurn and his passenger fled on foot, but officers caught them after a short pursuit. During a pat-down search, an officer found a little more than a gram of heroin in a bag pinned inside Shurn’s pants.

Before trial, Shurn moved to dismiss the case with prejudice, alleging that Vestal’s communications with Detective Sa wyer were improper. A magistrate judge recommended denial of the motion, and the district court agreed. Shurn also moved in limine to preclude evidence of his prior convictions in 1987 and 2000 for possession of heroin with the intent to distri bute. The district court granted the motion as to the 1987 conviction but allowed evidence of the 2000 conviction on the basis of relevance. At trial, the government intr oduced evidence that Shurn pled guilty in 2000 to possessing heroin with the intent to distribute. Shurn was ultimately convicted and sentenced to 240 months imprisonment.

DISCUSSION

A. Communications Between Ve stal and Detective Sawyer

Shurn contends that Vestal’s ex part e communications with Detective Sawyer caused him to become an advocate for th e prosecution, thereby intertwining the judicial and executive branches. According to Shurn, this violated his constitutional right to be tried in an impartial tribunal. The standardof review for constitutional error is de novo. United States v. Washington , 318 F.3d 845, 854 (8th Cir. 2003).-4- Probation officers are judicial branch employees hired to provide a wide range of information about defendant s and their offenses. See18 U.S.C. § 3602(a); Fed. R. Crim. P. 32(c) (requiring probation officers to conduct presentence investigations and submit reports to the district courts). On e of the duties of a probation officer is to keep informed about the conduct and condition of a person on supervised release. See 18 U.S.C. § 3603.

In United States v. McFarland , 16 F.3d 316 (8th Cir. 1997), the defendant accused the police of conducting an unlawfu l search under the guise of his parole officer’s visit. Suspecting that the defe ndant was violating parole conditions, his parole officer authorized the police to perform two warrantless searches of his residence and a storage locker. Id. at 317-18. The parole o fficer was present for only one of the searches. Id. at 318. The defendant argued on appeal that the parole officer was helping the police avoid the warrant re quirement instead of pursuing legitimate parole-related objectives. Id. We stated that a parole officer’s search is unlawful if it is merely a ruse for police action. Id. (citing United States v. Martin , 25 F.3d 293, 296 (6th Cir. 1994); United States v. Coleman , 22 F.3d 126, 129 (7th Cir. 1994); Shea v. Smith , 966 F.2d 127, 132 (3d Cir. 1992); United States v. Harper , 928 F.2d 894, 897 (9th Cir. 1991); United States v. Cardona , 903 F.2d 60, 65 (1st Cir. 1990)). However, parole officers and the police can wo rk together as long as the parole officer “is pursuing parole-related obj ectives and is not merely a ‘stalking horse’ for the police.” Id. Although McFarlanddiffers on its facts, it clearly indicates that a probation officer and a police officer may share information. See also United States v. Reyes , 283 F.3d 446, 463 (2d Cir. 2002) (“the objectives and du ties of probation officers and law enforcement personnel are unavoidably parallel and are frequently intertwined.”); United States v. Martin , 25 F.3d 293, 296 (6th Cir. 1994) (“police officers and probation officers can work t ogether and share information to achieve their objectives.”).-5- In our judicial system, police officer s and probation officers must often work together and share information. Althou gh Vestal and Detective Sawyer exchanged some information, they breached no cons titutional boundaries. As a probation officer, Vestal was obligated to keep informed of Shurn’s conduct and lo cation. When Vestal learned that Shurn had violated the term s of his supervision and abandoned the drug rehabilitation program, Vestal contacted Det ective Sawyer in an attempt to locate Shurn and address the violati ons. Contrary to Shurn’s a ssertion, the contacts between Vestal and Detective Sawyer did not dominat e the police investigation. Much of the information passed from Vestal to Detective Sawyer was routine notification to a law enforcement agency. Although the necess ity of sharing the anonymous report of abuse is questionable, this particular in formation did not lead to any police action. Neither Detective Sawyer nor Vestal re lied exclusively on information from each other in their individual investigations. E ach also independently investigated Shurn.

“A fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison , 349 U.S. 133, 136 (1955). The communications between Vestal and Detective Sawyer did not cr eate a partial tribunal. There was no violation of due process or other unconstitutional commingling of governmental powers. We therefore affirm the denial of the motion to dismiss the indictment.

B. Admissibility of Shurn’s Prior Conviction

Shurn also challenges the admission of evidence of his 2000 conviction for possession of heroin under Federal Rule of Evidence 404(b). The standard of review applicable to the admission of evidence under Rule 404(b) is abuse of discretion. United States v. Voegtlin , 437 F.3d 741, 745 (8th Cir. 2006). A district court has broad discretion to admit evidence of other crimes. United States v. Mays , 822 F.2d 793, 797 (8th Cir. 1987).-6- Rule 404(b) prohibits the admission of ev idence to prove that a defendant acted in conformity with prior bad acts, but evid ence of such acts “may . . . be admissible for other purposes, such as proof of motiv e, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .” Fed. R. Evid. 404(b). The rule “is one of inclusion because it admits evidence of other crimes, wrongs, or acts relevant to an issue in the trial, unle ss it tends only to prove criminal disposition.” United States v. Wagoner , 713 F.2d 1371, 1375 (8th Cir. 1983) (citing United States v. Boykin , 679 F.2d 1240, 1244 (8th Cir. 1982)). A prior conviction is admissible when it is “(1) relevant to a material issue; (2) similar in kind and close in time to the crime charged; (3) supported by sufficient ev idence; and (4) such that its probative value is not outweighed by any prejudicial impact.” United States v. Ruiz-Estrada , 312 F.3d 398, 403 (8th Cir. 2002) (c iting United States v. Hardy , 224 F.3d 752, 757 (8th Cir. 2000)).

According to Shurn, evidence of his prior conviction should not have been admitted because intent and knowledge werenot material issues. This challenge relates to the first factor listed above. We routinely uphold the admission of prior drug convictions in cases charging narcotics violations under the “intent” and “knowledge” language of Ru le 404(b). See, e.g. , United States v. Haynes , 881 F.2d 586, 590 (8th Cir. 1989); United States v. Maichle , 861 F.2d 178, 180-81 (8th Cir. 1988); United States v. Norton , 846 F.2d 521, 524 (8th Cir. 1988). Shurn relies on United States v. Jenkins , 7 F.3d 803 (8th Cir. 1993), in support of his argument that evidence of other crimes is not admissible when a defendant denies committing the offense, because such a defense does not place intent at issue. However, Jenkins was implicitly overruled by the Supreme C ourt in Old Chief v. United States , 519 U.S. 172 (1997), as we recognized in United States v. Hill , 249 F.3d 707, 710-13 (8th Cir. 2001). The current rule is that the gove rnment may introduce evidence of a prior conviction to show intent even though a de fendant unequivocally claims not to have committed the present offense. Hill , 249 F.3d at 712-13; United States v. Walker , 428 F.3d 1165, 1170 (8th Ci r. 2005). We recently upheld the admission of evidence of-7- three prior convictions based on the converse of the Jenkins rule: “When the defendant in a drug prosecution denies th e charged wrongdoing, . . . evidence of past drug convictions is admissible to prove both knowledge and intent.” United States v. Love , 419 F.3d 825, 828 (8th Cir. 2005) (citing United States v. Foster , 344 F.3d 799, 801 (8th Cir. 2003)).

In the present case, Shurn was charge d with possession with the intent to distribute heroin. At trial, he denied po ssessing heroin. The district court instructed the jury that the government would have to prove that Shurn actually possessed heroin, that he knew he possessed heroin, a nd that he intended to distribute heroin. The prior conviction was relevant and material to show Shurn’s knowledge of drugs and their illegal means of distribution, as we ll as his intent to control the heroin and distribute it. See Foster , 344 F.3d at 801-02.

Shurn also argues that the conviction was inadmissible because the probative value of the evidence depended entirely on th e inference of propensity. However, the potential prejudice from evidence that a defe ndant previously possessed or sold drugs does not necessarily outwei gh the probative value of the evidence. See, e.g. , Love , 419 F.3d at 828; United States v. Betterton , 417 F.3d 826, 832 (8th Cir. 2005). In Shurn’s case, the prior conviction was hi ghly probative of both intent and knowledge, which were crucial components of the gove rnment’s burden of proof. Any resulting prejudice was not undue. We note further thatShurn testified in his own defense and was subject to impeachment based on the prior convictions. Indeed, Shurn’s own attorney chose to question him about the prio r crimes in his direct testimony. Finally, the district court gave a limiting instruction to the jury to consider the conviction only for the limited purpose for which it was offered. A jury is presumed to follow its instructions, Weeks v. Angelone , 528 U.S. 225, 234 (2000), a nd Shurn has not shown otherwise. The district court did not abuse its discretion in admitting evidence of Shurn’s prior conviction in 2000.-8- CONCLUSION

Communications between Shurn’s probation officer and the police did not violate Shurn’s right to an impartial tri bunal, and the district court did not err in admitting evidence of Shurn’s prior convic tion to show his know ledge and intent to distribute heroin. Accordingly, we affirm the judgment of the district court.

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