### The Hon. Ronald E. Longstaff, United States District Judg e 1 

### for the Southern District of Iowa. _____________ No. 95-3660SI

_____________ United States of America, * * Appellee, * * On Appeal from the United v. * States District Court * for the Southern District * of Iowa. Bernard Francis Rogers, * * Appellant. *

___________ Submitted: April 9, 1996 Filed: July 26, 1996

___________ Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN a nd HANSEN, Circuit Judges.

___________ RICHARD S. ARNOLD, Chief Judge.

Aj ury convicted Bernard Rogers of one count of conspiracy t o distribute methamphetamine in violation of 21 U.S.C. § 846(a)(1) and two counts of distribution of methamphetamine in violation of 21 U.S.C
. § 8 41(a)(1). The District Court sentenced him to twenty years ' 1 imprisonment on each count, all to run concurrently. Rogers challenges hi s convictions on three grounds: improper admission of prior-crimes evidence ; an erroneous jury instruction; and sufficiency of the evidence. We affirm
.

### -2- I. Between 1992 and 1994, Rogers took part in a multi-state scheme t o distribute methamphetamine. He was supplied with the methamphetamine by Donald Jones and Willie Olsen of California. Rogers, in turn, supplie d methamphetamine to Jack Pyle, Jerry Tolkan, and Dennis Rosenboom. Th e drugs were distributed from hotel rooms in the Des Moines, Iowa, and Kansa s City, Missouri, area. Following several years of multi-state investigatio n by law -enforcement officers, Rogers was indicted and later convicted o f conspiracy to distribute methamphetamine between September 1992 and Ma y 1994; and distributio n of methamphetamine on February 15, 1994, and March 26, 1994. The following evidence was adduced at trial in support of his convictions.
Rogers owned an auto-repair shop kno wn as B & W Auto Repair, located in Independence, Miss ouri. In September of 1992, he was linked to a drug house in Ontario, Cal ifornia. Officers searched the house and found ten loaded firearms, one pound of methamphetamine, and approximately $55,000 in cash. The link to Rogers came in the form of a B & W business car d found in a duffle bag carried by Barry Fillpot, who arrived at the house
as the search was proceeding. In addition to the business card, the bag contained drug notes, approximately $20,000 in cash, and round-trip airlin e ticket s which showed that Fillpot had recently arrived at Ontari o International Airport from Missouri.

The follo wing month, October 1992, police responded to an anonymous complaint that drugs were being used at B & W. Fillpot, who was the lead mechanic at the shop, gave the officers verbal and written permission to conduct a search. No controlled substance was found.

In Janu ary of 1994, Don Johnson, while driving a car registered t o Rogers and Willie Owens, was arrested in

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Independence, Missouri. The car contained approximately $30,000 in cash and 17.5 grams of methamphetamine.

On Feb ruary 15, 1994, Rogers stayed at The Days Inn in Des Moines , Iowa, with Jack Pyle. Shelia Buschboom, an employee of the Best Western Colonial, testified t hat Rogers, Pyle, and two other men checked into the Best West ern Colonial between February 14 and 15, 1994. Just four day s later, on February 19, Pyle was arrested at the Bavarian Inn in Des Moines with 32 grams of meth amphetamine, a handgun, $10,000 in cash, and a safe. He testified that he received the drugs from Rogers.
Rogers and Pyle checked into The Inn Motel in Des Moines, Iowa, o n March 26, 1994. Pyle testified that the two men, along with Denni s Ros enboom, conducted a one-pound methamphetamine transaction. Pyle' s testimony was corroborated by the testimony of Special Agent Vic Muñoz, wh o present ed documentary evidence in the form of telephone receipts. I n addition, Connie Newlin, an employee of The Inn, testified that Rogers and Pyle registered at The Inn on March 26, 1994.
In April of 1994, officers found a Western Union money transfer and
a Federal Express Voucher from B & W during a search of the Donald Jones residen ce in Ontario, California. The notes contained a reference t o Rogers concerning the sum of $340,500 and the fo llowing notation: "Bernie owing $57,000."
Later in April, Pyle was arrested in Des Moines while in possession of one-half pound of methamphetamine he receivedfrom Rogers. Pyle signed
a plea ag reement on July 21, 1994, and agreed to cooperate with la w enf orcement. At trial, he testified that Rogers fronted him 15 to 2 0 pou nds of methamphetamine at approximately $20,000 an ounce. He state d that he traveled to R ogers's home in Blue Ridge, Missouri, to pick up the methamphetamine and then returned to Iowa, where he distributed it

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to his customers. Pyle further testified that R ogers had told him that he received the methamphetamine from the West Coast and that his connection
was "Willie." According to Rogers, the drug money was sent by Wester n Union from B & W to California. Pyle's wife, Carol Pyle, testified that she was directed by Jack Pyle to transport the proceeds fro m methamphetamine sales in Des Moines to Rogers in Kansas City.
Another alleged co-conspirator, Jerr y Tolkan, also testified against Rogers. He stated that he received methamphetamine from Rogers and paid him between $12,000 a nd $14,000, plus a horse trailer. Tolkan later gave the methamphetamine to Dennis Rosenboom.
Based on these facts, and other evid ence presented at the trial, the juryfound Rogers guilty of the three counts charged in the indictment
. Rogers now raises the following issues on appeal.

II. First, Rogers challenges the admission into evidence of his two prior state-c ourt convictions. During the trial, the government introduce d certified copies of R ogers's prior convictions for unlawful possession of
a controlled substance with intent to distribute, and maintaining a vehicl e where a controlled substance was kept. The convictions occurred i n Oklahoma in 1990.
Rogers ar gues that admission of this evidence served no permissible purpose under Fed. R. Evid. 404(b). Specificall y, he urges that the state off enses were not similar in kind to the current charges. In th e alternative, he urges that the probative value of the evidence does no t outwei ghthe prejudicial impact. The government claims that th e con victions were probative of Rogers's knowledge, and that any error i n admitting the evidence was harmless.

### -5- Under Ru le 404(b), evidence of prior crimes is admissible to prov e a defendant's "motive , opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake." Evidence designated for one of thes e purposes must be: (1) relevant to a material issue raised at trial, (2) similar in kind and close in time to the crime charged, (3) supported by sufficient evidence to support a finding by a jury that the defendan t co mmitted the other act, and (4) not the cause of prejudice tha t substantially outweighs its probative value. Un ited States v. Escobar , 50 F.3d 1414, 1421 (8th Cir. 1995). The trial court has broad discretion whe n determining the admissibility of other-crimes evidence. Ibid. The issue here is whether Rogers's prior crimes are similar in kind to the crimes charged in the indictment. This Court has held tha t "testimony of prior drug transactions is admissible to prove that a defendant acted knowi ngly and intentionally." Ibid. (citations omitted). We have recognized, for example, that a defendant's previous conviction fo r large-scale drug dealing may be admissible to prove knowledge in a later prosecution for consp iracy to distribute the same drug. United States v. Shoffner , 71 F.3d 1429, 1432 (8th Cir. 1995) (involvement in marijuan a dealing under different circumstances tends to prove knowledge in marijuan a conspiracy prosecution). But our cases stop sho rt of recognizing that all previous drug convict ions are similar in kind to drug charges involved in
a subsequent prosecution of the same defendant. In United States v. Mejia

Uribe , 75 F.3d 395, 398 (8th Cir. 1996), we held that a defendant' s previous conviction f or the single sale of a drug was not similar in kind to a later conspiracy to distribute the same drug. Rogers's prio r convict ions involved possession of methamphetamine with the intent t o distribute. This crime, we think, is similar in kind to distribution of metha mphetamine, which is the crime charged in two of the three count s against Rogers.
On the other hand, the probative value of the prior crimes

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seems to us quite small. The fact that Rogers had previously possesse d methamphetamine with the intention of distributing it may tend to show tha t he knew the substance involved in the present case was methamphetamine
. This knowledge, however, was not really in issue at the trial, except in the formal sense that a plea of not guilty puts all elements of a charged crime in issue. On the whole, although Rogers h as a substantial point, we are not pe rsuaded that the trial court abused its broad discretion i n admitting this prior-crimes evidence.

III.
Rog ers's second argument relates to the "reasonable doubt " instruction given to the jury. The District Court charged the jury a s follows:
A reasonable doubt is a dou bt based upon reason and

co mmon sense, and not the mere possibility o f innocence. A reasonable do ubt is the kind of doubt that would make a reasonable person hesitate t o act. Proof beyond a reasonable doubt, therefore , must be proof of such a convincing character that a reaso nable person would not hesitate to rely an d act up on it. However, proof beyond a reasonabl e do ubt does not mean proof beyond all possibl e doubt.
Rog ers proffered the addition of the following sentence: "A reasonabl e doubt is one that fairly and naturally arises fr om the evidence or lack of evidence p roduced by the government." Appellant's Br. 15. The Cour t refused to supplement its instructions to the jury in this way.
The Constitution requires that a trial court instruct the jury on the government's burden of proof. Victor v. Nebrask a , 114 S. Ct. 1243 (1994). The in struction must "convey the concepts of reasonable doubt an d presumption of innocence . . .." United

### Our sister circuits have considered this exact claim -- that 2 

### it was error for the district court to refuse to instruct the jury th at reasonable doubt may arise from a lack of evidence -- an d rejected it. See, e.g. , United States v. Baskin , 886 F.2d 3 83, 388 (D .C. Cir. 1989) (reasonable doubt instruction not error wher e court refuses to include "lack of evidence" language), cert . denied , 494 U.S. 1089 (1990); United States v. Tant , 412 F.2d 840, 840-41 (5th Cir.) (same), cert. denied , 396 U.S. 876 (1969); United States v. Carus ; 358 F.2d 184, 187 (2d Cir. 1966) (same). -7- States v. Collins , 66 F.3d 984, 987 (8th Cir. 1995). However, a "defendan t is not entitled to a particularly worded instruction where th e instruction[] given . . . correctly state[s] the applicable law an d adequately and fairly cover[s] the substance of the requested instruction. " United States v. Parker , 32 F.3d 395, 401 (8th Cir. 1994).

We are confident that the instruction given adequately informe d Rogers's jury, as it has many others, of the gov ernment's burden of proof. The instruction has b een repeatedly approved by this Court as an accurate statement of the requisite burden of proof. See, e.g. , United States v. Mabry , 3 F.3d 244, 249 (8th Cir. 1993), cert. denied , 114 S. Ct. 140 3 (1994). Thus, it was not error for the Court to refuse to supplement its charge to the jury. The additional language, in any event, says nothing 2 that is not already obvious to people of common sense. That a lack o f evidence may cause one to have a reasonable doubt is self-evident.

IV. Finally, Rogers claims that the evid ence was insufficient to support his convictions of conspiracy to distribute methamphetamine an d distribution of methamphetamine. In reviewing this claim, we view th e evidence in the light most favorable to the verd ict, giving the government the benefit of all re asonable inferences. Shoffner , 71 F.3d at 1433. We reverse only if no reasonable jury could have co ncluded that the defendant was guilty beyond a

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reasonable doubt. Ibid.

To prov e that Rogers engaged in a drug conspiracy, the governmen t mus t demonstrate that an agreement existed between at least two people ; that the defendant knew of the conspiracy; and that the defendan t intentionally joined the conspiracy. Ibid. To prove that Rogers engaged in the distribution of methamphetamine, the government was required to sho w that Rogers knowingly sold or otherwise transferred methamphetamine.

The evidence was more than sufficient for the jury to find Roger s guilty be yond a reasonable doubt. Several of Rogers's alleged co

conspi rators testified against him, including Pyle and Tolkan. Thei r testimony established that Rogers supplied them with methamphetamine i n resale quantities on several occasions, includin g the dates charged in the ind ictment. United States v. Eneff , 79 F.3d 104, 105 (8th Cir. 1996 ) ("evidence of multipl e sales of resale quantities is sufficient in and of itself to make a submissible case of a conspirac y to distribute"). But we need not depend solely on the testimony of co-conspirators in this case. Their testimony was c orroborated by seemingly disinterested witnesses and telephone records from various hotels where the men met. Moreover , Rogers's business, B & W, was directly connectedwith the transfer of drug money from Missouri to California, as evidenced by Western Union receipts.
Rogers po ints out that the testimony of his alleged co-conspirators may have been influenced by their interest in receiving more lenien t sentences. Self-interest may have been the impetus for their testimony, but that fact does not render the testimony incredible. Whether or no t their testimony was credible was for the jury to decide. United States v. Jenkins , 78 F.3d 1283 , 1287 (8th Cir. 1996). Especially given the extent of corroborative evidence, it was reasonable for the jury to believe the alleged co-conspirators' account of Rogers's involvement.

### -9- The judgment is affirmed.
A true copy.

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