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.

Timothy Wayne Spence appeals his conviction and

seventy-month sentence for possession of marijuana with

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.

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841(a)(1). He argues there was insufficient evidence to

convict and that the district court erred 1
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when it admitted evidence of his prior arrest for

possession of marijuana and then used that prior drug

quantity in calculating his base offense level for

sentencing. We affirm.

1. Sufficiency of the Evidence. Spence argues that

the evidence was insufficient to sustain his conviction.

We summarize that evidence in the light most favorable to

the government. After agreeing to cooperate with

government investigators, Patrick Hartman arranged to buy

forty-five pounds of marijuana from his supplier, David

Forsythe. On May 21, 1996, Forsythe called Hartman and

said that he was in Room 169 at a Holiday Inn near the

Des Moines airport, a room that Spence had rented under

another name. At 6:45 p.m., Spence left the hotel in a

blue Oldsmobile. DEA agents followed the car to a

shopping center two miles away, where Spence made a call

from a pay phone, sat in his car for one hour, and then

returned to the hotel. During this time, Forsythe called

Hartman and said he was waiting for his driver. 

At 8:45 p.m., DEA agents executed a warrant to search

the hotel room. They found thirty-seven one-pound bags

of marijuana and a total of nineteen kilograms of

marijuana in the hotel room and Spence hiding in the

unlit bathroom. Spence denied knowing anyone in the

hotel room, denied driving the Oldsmobile to the hotel,

and said he had left the hotel earlier to avoid being

involved. Claiming knowledge of the federal sentencing

guidelines, Spence also asked the agents why they were

interested in him because the maximum sentence for the

quantity of marijuana found in the hotel room was only

two years. 
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We reverse a conviction on the ground of insufficient

evidence only if a “reasonable fact-finder must have a

reasonable doubt about an essential element of the

offense.” United States v. Moore, 98 F.3d 347, 349 (8th

Cir. 1996). We conclude the evidence in this case is

more than sufficient to sustain Spence’s conviction.

2. The Rule 404(b) Issue. In December 1995, a

government informant delivered a motor home containing

some 250 pounds of marijuana to Spence at a truck stop

near
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Chicago. When Spence drove away in the motor home,

police stopped the vehicle and arrested Spence, at which

time he made incriminating admissions such as, “If you

think all that pot was for me, you are wrong.” At

Spence’s Illinois home, police found marijuana wrappings

similar to those in the motor home. A telephone analysis

later showed four October 1995 calls between Spence’s

Illinois number and Forsythe’s Kansas City number. 

Before trial, Spence moved to exclude evidence of

this Illinois arrest. The government responded that the

evidence was admissible as part of the charged conspiracy

between Spence and Forsythe (a count on which the jury

ultimately failed to reach a verdict), or as evidence of

other crimes admissible under Rule 404(b) of the Federal

Rules of Evidence. The district court deferred ruling on

the admissibility of this evidence until the government

had introduced its other evidence at trial. At that

point, the court admitted the above-summarized evidence

under Rule 404(b).

(a) On appeal, Spence first argues that the district

court erred in deferring its ruling until the middle of

trial, precluding him from attempting to defuse this

prejudicial evidence during voir dire and opening

statements. Spence did not raise this objection with the

district court, and he cites no authority supporting his

contention on appeal. District courts may defer ruling

on pretrial motions “for good cause.” Fed. R. Crim. P.

12(e). The district court reasonably concluded that it

should hear the government’s other evidence before

deciding whether the Illinois arrest was evidence of

conduct in furtherance of the alleged conspiracy between

Spence and Forsythe. Thus, deferring its ruling was
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neither plain error nor an abuse of the court’s

discretion. See United States v. Wilson, 26 F.3d 142,

159 (D.C. Cir. 1994). 

(b) Spence next argues that evidence of the Illinois

arrest was not admissible under Rule 404(b). The

district court ruled that this evidence was relevant to

show Spence’s knowledge and intent to distribute

marijuana. Relying upon United States v. Jenkins, 7 F.3d

803 (8th Cir. 1993), Spence argues that knowledge and

intent were not
In 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. 

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at issue because he asserted a “mere presence” defense

that effectively conceded knowledge that Forsythe

intended to distribute the marijuana found in the hotel

room. 

In Jenkins, we held that Rule 404(b) rebuttal

evidence was inadmissible because the defendant

“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 subsequently construed

Jenkins as a narrow exception to Rule 404(b)

admissibility, applicable only if a defendant

“unambiguously indicate[s] that mental state is not in

dispute.” Moore, 98 F.3d at 350, quoting United States

v. Thomas, 58 F.3d 1318, 1322 (8th Cir. 1995). Spence

2

falls far short of meeting this rigorous standard. He

made no offer to stipulate intent out of the case, and

his so-called unequivocal concession was, at most, an

inference that he knew Forsythe had the requisite intent
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to distribute that could be drawn from his statements to

the arresting officers. That “concession” left Spence’s

own knowledge and intent at issue, and evidence of the

Illinois arrest was relevant to those issues. In

general, Rule 404(b) evidence is relevant
Section 1B1.3 as initially promulgated expressly commented that relevant 3

conduct for sentencing purposes should include other crimes evidence admissible

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to refute a “mere presence” defense. See Moore, 98 F.3d at

350. The district court did not abuse its discretion in

admitting such evidence in this case.

3. The Relevant Conduct Issue. Finally, Spence

argues that the district court erred in including the

marijuana seized at the time of his Illinois arrest in

the drug quantity that established his base offense level for

sentencing purposes. The Sentencing Guidelines define

the conduct that is relevant to sentencing more broadly

than the offense of conviction. See United States v.

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

Relevant conduct includes acts and omissions "that were

part of the same course of conduct or common scheme or

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 count of conviction.” U.S.S.G. § 2D1.1, comment.

(n.12). Whether additional, uncharged drug trafficking

is part of the “same course of conduct” as the offense of

conviction is a fact-intensive question reflecting the

traditional role of the sentencing court to consider a

defendant’s past criminal behavior. The question turns

on factors such as “the degree of similarity of the

offenses, the regularity (repetitions) of the offenses,

and the time interval between the offenses.” U.S.S.G. §

1B1.3, comment. (n.9(B)); see United States v. Lawrence,

915 F.2d 402, 407 (8th Cir. 1990).

3
under 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.”

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In this case, Spence’s Presentence Investigation

Report included as relevant conduct the 127 kilograms of

marijuana seized at the time of his Illinois arrest.

Spence filed a timely objection, and the issue was then

argued extensively at his sentencing
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hearing. Based upon the evidence at trial, the district

court found that the December 1995 Illinois arrest was

part of the same course of conduct as the offense of

conviction because the two incidents occurred within a

few months and involved distribution quantities of the

same drug. This finding is not clearly erroneous,

particularly considering that the government presented

evidence of October 1995 telephone calls between Spence

and Forsythe which suggested continuing involvement by

Forsythe in Spence’s drug trafficking activities. See

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 evidence

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, 228-29

(8th Cir. 1991), cases in which the purported relevant conduct involved

different drugs, different conduct, and different people.

For the foregoing reasons, the judgment of the

district court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH

CIRCUIT.