The HONORABLE THOMAS M. REAVLEY, United States Circuit Judge * for the Fifth Circuit, sitting by designation. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1482

___________ United States of America, *
* Plaintiff - Appellee, *
* Appeal from the United States v. * District Court for the
* Southern District of Iowa. Timothy Wayne Spence, *
* Defendant - Appellant. *

___________ Submitted: June 12, 1997 Filed: October 9, 1997

___________ Before LOKEN, REAVLEY, and JOHN R. GIBSON, Circuit * Judges.

___________ LOKEN, Circuit Judge.

Timot hy Wayne Spence appeals his conviction an d seventy-month sentence for possession of marijuana wit h intent to distribute in violation of 21 U.S.C. §The HONORABLE HAROLD D. VIETOR, United States District Judge for 1 the Southern District of Iowa.
-2- 841(a)(1). He argues there was insufficient evidence to convict and that the district court erred 1-3-

whe n it admitted evidence of his prior arrest fo r possess ion of marijuana and then used that prior dru g quan tity in calculating his base offense level fo r sentencing. We affirm.

1. Suff iciency of the Evidence. Spence argues tha t the eviden ce was insufficient to sustain his conviction. We summarize that evidence in the light most favorable to the government. After agreeing to cooperate wit h government investigators, Patrick Hartman arr anged to buy fort y-five pounds of marijuana from his supplier, Davi d Forsythe

. On May 21, 1996, Forsythe called Hartman and said that he was in Room 169 at a Holiday Inn near th e Des Moi nes airport, a room that Spence had rented unde r ano ther name . At 6:45 p.m., Spence left the hotel in a bl ue Oldsmobile. DEA agents followed the car to a shopping c enter two miles away, where Spence made a call from a pay phone , sat in his car for one hour, and the n returned to the hotel. During this time, For sythe called Hartman and said he was waiting for his driver.

At 8:45 p.m., DEA agents executed a warrant to searc h the hotel room. They found thirty-seven one-pound bag s of marijuana and a total of nineteen kilograms o f mari juana in the hotel room and Spence hiding in th e un lit bathroom

. Spence denied knowing anyone in th e hotel room, denied driving the Oldsmobile to the hotel , and s aid he had left the hotel earlier to avoid bein g invo lved. Claiming knowledge of the federal sentencin g guid elines, Spence also asked the agents why they wer e inte rested in him because the maximum sentence for th e quanti ty of marijuana found in the hotel room was onl y two years

.-4-

W e reverse a conviction on the ground of insufficien t evid ence only if a “reasonable fact-finder must have a reas onable doubt about an essential element of th e offense.” United States v. Moore , 98 F.3d 347, 349 (8th Cir. 1996). We conclude the evidence in this case i s more than sufficient to sustain Spence’s conviction.

2. The Rule 404(b) Issue. In December 1995, a government informant delivered a motor home containin g some 250 pounds of marijuana to Spence at a truck sto p near-5-

Chi cago . When Spence drove away in the motor home , police sto pped the vehicle and arrested Spence, at which time he made incriminating admissions such as, “If yo u th ink all that pot was for me, you are wrong.” A t Spence’s I llinois home, police fou nd marijuana wrappings similar to those in the motor home. A teleph one analysis late r showed four October 1995 calls between Spence’ s Illinois number and Forsythe’s Kansas City number.

Before trial, Spence moved to exclude evidence o f this Illin ois arrest. The government responded that the evidence was admissible as part of the charge d conspiracy betwee n Spence and Forsythe (a count on which the jur y ultimately

failed to reach a verdict), or as evidence of other crim es admissible under Rule 404(b) of the Federal Rules of Evidence. The district court deferr ed ruling on the admissibility of this evidence until the governmen t had introduced its other evidence at trial. At tha t point, the court admitted the above-summarized evidenc e under Rule 404(b)

. (a) On appeal, Spence first argues that the distric t court e rred in deferring its ruling until the middle o f tria l, precluding him from attempting to defuse thi s prejudicial evidence during voir dire and openin g statements. Spence did not raise this object ion with the district c ourt, and he cites no authority supporting his contention on appeal. District courts may defer rulin g on pr etrial motions “for good cause.” Fed. R. Crim. P

. 12(e). The district court reasonably concluded that i t sh ould hear the government’s other evidence befor e deci ding whether the Illinois arrest was evidence o f conduct in furtherance of the alleged conspiracy between Sp ence and Forsythe. Thus, deferring its ruling wa s-6-

neither plain error nor an abuse of the court’ s discre tion. See United States v. Wilson , 26 F.3d 142 , 159 (D.C. Cir. 1994).

(b) Spence next argues that evidence of the Illinoi s
arr est was not admissible under Rule 404(b). Th e district court ruled that this evidence was relevant t o show Spence’s knowledge and intent to distribut e marijuana. Relying upon United States v. Jen kins , 7 F.3d 803 (8t h Cir. 1993), Spence argues that knowledge an d intent were notIn United States v. Crowder , 87 F.3d 1405, 1409-10 (D.C. Cir. 1996), the 2 court followed Jenkins and Thomas in ruling evidence of prior drug trafficking inadmissible under Rule 404(b), but acknowledged a conflict in the circuits on this issue. The government petitioned for a writ of certiorari, raising the question whether a defendant may foreclose Rule 404(b) evidence relevant to intent by stipulating to that element of the offense at issue. See 65 U.S.L.W. 3327 (U.S. Oct. 29, 1997) (No. 96-548). The Supreme Court summarily reversed and remanded “for further consideration in light of Old Chief v. United States , 519 U.S. ---, 117 S.Ct. 644, 136 L.Ed. 2d 574 (1997).” United States v. Crowder , 117 S. Ct. 760 (1997). In Old Chief

, the Court’s holding was limited to an unrelated issue, see 117 S. Ct. at 651 n.7, but its opinion observed that “the accepted rule that the prosecution is entitled to prove its case free from any defendant’s option to stipulate the evidence away rests on good sense.” Id. at 654. This observation, coupled with the remand in Crowder , may signal that our Jenkins decision has been overruled, but that is an issue we leave for another day.
-7- at i ssue because he asserted a “mere presence” defens e that effectively conceded knowledge that Forsyth e intended to distribute the marijuana found in the hote l
room. In Jenkins , we held that Rule 404(b) rebutta l evidence was inadmissible because the defendan t “testified unequivocally that he did not commit the acts charged against him,” thus removing intent as an issue in the case. 7 F.3d at 807. We have subsequent ly construed Jenk ins as a narrow exception to Rule 404(b ) admissibility, applicable only if a defendan t “una mbiguously indicate[s] that mental state is not i n dispute .” Moore , 98 F.3d at 350, quoting United State s
v. Thomas , 58 F.3d 1318, 1322 (8th Cir. 1995)

. Spenc e 2 falls far short of meeting this rigorous standard. H e made no offer to stipulate intent out of the case, an d his so-called unequivocal concession was, at most, a n inference that he knew Forsythe had the requisite intent-8-

to distrib ute that could be drawn from his statements to the arrest ing officers. That “concession” left Spence’s
own kn owledge and intent at issue, and evidence of th e Ill inois arrest was relevant to those issues. I n general, Rule 404(b) evidence is relevantSection 1B1.3 as initially promulgated expressly commented that relevant 3 conduct for sentencing purposes should include other crimes evidence admissible
-9- to refute a “mere presence” defense. See Moore , 98 F.3d a t 350. Th e district court did not abuse its discretion i n admitting such evidence in this case.

3. The Relevant Conduct Issue. Finally, Spenc e argues that the district court erred in including th e mariju ana seized at the time of his Illinois arrest i n the dr ug quantity that established his base offense level fo r sentencing purposes. The Sentencing Guidelines defin e the conduct that is relevant to sentencing more broadl y than the offense of conviction. See United States v

. Gallow ay , 976 F.2d 414, 419 (8th Cir. 1992) (en banc)

. Rele vant conduct includes acts and omissions "that wer e part of the same course of conduct or common scheme o r plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2 ); see United States v. Watts , 117 S. Ct. 633, 635-36 (1997). In determining base offense level for a drug trafficking offense, the district court may consider as relevant conduct “quantities of drugs not specified in the cou nt of conviction.” U.S.S.G. § 2D1.1, comment

. (n.12). Whether additional, uncharged drug traffickin g is part of the “same course of conduct” as th e offense of conviction is a fact-intensive question reflecting th e trad itional role of the sentencing court to consider a defe ndant’s past criminal behavior. The question turn s on factors such as “the degree of similarity of th e offenses, the regularity (repetitions) of the offenses , and the ti me interval between the offenses.” U.S.S.G. § 1B1.3, com

ment. (n.9(B)) ; see United States v. Lawrence , 915 F.2d 402, 407 (8th Cir. 1990)

. 3under Rule 404(b). See U.S.S.G. App. C, amend. 3. However, that comment was

too broad because some conduct admissible under Rule 404(b) would clearly fall outside the concepts of “same course of conduct” and “common scheme or plan.”
-10- In this case, Spence’s Presentence Investigatio n Report inc luded as relevant conduct the 127 kilograms of
ma rijuana seized at the time of his Illinois arrest

. Spence filed a timely objection, and the issue was the n argued extensively at his sentencing-11-

hearing. Based upon the evidence at trial , the district
cour t found that the December 1995 Illinois arrest wa s part of the same course of conduct as the offense o f
conv iction because the two incidents occurred within a few months and involved distribution quantities of th e same drug. This finding is not clearly erroneous , particularly considering that the government presente d evid ence of October 1995 telephone calls between Spenc e and Forsythe which suggested continuing involvement b y Forsythe in Spence’s drug trafficking activities. Se e United States v. Nichols , 986 F.2d 1199, 1206-07 (8th Cir. 1993); United States v. Gooden , 892 F.2d 725, 728-29 (8th Cir. 1989). Thus, the evidenc e of continuous drug activity comprising a single course of conduct is far stronger in this case than it was in United States v. Lewis , 987 F.2d 1349 , 1356 (8th Cir. 1993), or United States v. Montoya , 952 F.2d 226, 228-2 9 (8t h Cir. 1991), cases in which the purported relevant conduct involve d different drugs, different conduct, and different people.

For the foregoing reasons, the judgment of th e district court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHT H CIRCUIT.