The Hon. Ronald E. Longstaff, United States District Judge

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for the Southern District of Iowa.

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No. 95-3660SI

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United States of America, *

*

Appellee, *

* On Appeal from the United

v. * States District Court

* for the Southern District

* of Iowa.

Bernard Francis Rogers, *

*

Appellant. *

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 Submitted: April 9, 1996

 Filed: July 26, 1996

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Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN and HANSEN, Circuit Judges.

___________

RICHARD S. ARNOLD, Chief Judge.

A jury convicted Bernard Rogers of one count of conspiracy to

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.

§ 841(a)(1). The District Court sentenced him to twenty years'

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imprisonment on each count, all to run concurrently. Rogers challenges his

convictions on three grounds: improper admission of prior-crimes evidence;

an erroneous jury instruction; and sufficiency of the evidence. We affirm.
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I.

 Between 1992 and 1994, Rogers took part in a multi-state scheme to

distribute methamphetamine. He was supplied with the methamphetamine by

Donald Jones and Willie Olsen of California. Rogers, in turn, supplied

methamphetamine to Jack Pyle, Jerry Tolkan, and Dennis Rosenboom. The

drugs were distributed from hotel rooms in the Des Moines, Iowa, and Kansas

City, Missouri, area. Following several years of multi-state investigation

by law-enforcement officers, Rogers was indicted and later convicted of

conspiracy to distribute methamphetamine between September 1992 and May

1994; and distribution 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 known as B & W Auto Repair, located

in Independence, Missouri. In September of 1992, he was linked to a drug

house in Ontario, California. 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 card

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 airline

tickets which showed that Fillpot had recently arrived at Ontario

International Airport from Missouri. 

The following 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 January of 1994, Don Johnson, while driving a car registered to

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 February 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 that Rogers, Pyle, and two other men checked into the

Best Western Colonial between February 14 and 15, 1994. Just four days

later, on February 19, Pyle was arrested at the Bavarian Inn in Des Moines

with 32 grams of methamphetamine, 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, on

March 26, 1994. Pyle testified that the two men, along with Dennis

Rosenboom, conducted a one-pound methamphetamine transaction. Pyle's

testimony was corroborated by the testimony of Special Agent Vic Muñoz, who

presented documentary evidence in the form of telephone receipts. In

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

residence in Ontario, California. The notes contained a reference to

Rogers concerning the sum of $340,500 and the following notation: "Bernie

owing $57,000." 

Later in April, Pyle was arrested in Des Moines while in possession

of one-half pound of methamphetamine he received from Rogers. Pyle signed

a plea agreement on July 21, 1994, and agreed to cooperate with law

enforcement. At trial, he testified that Rogers fronted him 15 to 20

pounds of methamphetamine at approximately $20,000 an ounce. He stated

that he traveled to Rogers'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 Rogers 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 Western

Union from B & W to California. Pyle's wife, Carol Pyle, testified that

she was directed by Jack Pyle to transport the proceeds from

methamphetamine sales in Des Moines to Rogers in Kansas City.

Another alleged co-conspirator, Jerry Tolkan, also testified against

Rogers. He stated that he received methamphetamine from Rogers and paid

him between $12,000 and $14,000, plus a horse trailer. Tolkan later gave

the methamphetamine to Dennis Rosenboom. 

Based on these facts, and other evidence presented at the trial, the

jury found 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-court convictions. During the trial, the government introduced

certified copies of Rogers's prior convictions for unlawful possession of

a controlled substance with intent to distribute, and maintaining a vehicle

where a controlled substance was kept. The convictions occurred in

Oklahoma in 1990. 

Rogers argues that admission of this evidence served no permissible

purpose under Fed. R. Evid. 404(b). Specifically, he urges that the state

offenses were not similar in kind to the current charges. In the

alternative, he urges that the probative value of the evidence does not

outweigh the prejudicial impact. The government claims that the

convictions were probative of Rogers's knowledge, and that any error in

admitting the evidence was harmless.
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Under Rule 404(b), evidence of prior crimes is admissible to prove

a defendant's "motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake." Evidence designated for one of these

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 defendant

committed the other act, and (4) not the cause of prejudice that

substantially outweighs its probative value. United States v. Escobar, 50

F.3d 1414, 1421 (8th Cir. 1995). The trial court has broad discretion when

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 that

"testimony of prior drug transactions is admissible to prove that a

defendant acted knowingly and intentionally." Ibid. (citations omitted).

We have recognized, for example, that a defendant's previous conviction for

large-scale drug dealing may be admissible to prove knowledge in a later

prosecution for conspiracy to distribute the same drug. United States v.

Shoffner, 71 F.3d 1429, 1432 (8th Cir. 1995) (involvement in marijuana

dealing under different circumstances tends to prove knowledge in marijuana

conspiracy prosecution). But our cases stop short of recognizing that all

previous drug convictions are similar in kind to drug charges involved in

a subsequent prosecution of the same defendant. In United States v. MejiaUribe, 75 F.3d 395, 398 (8th Cir. 1996), we held that a defendant's

previous conviction for the single sale of a drug was not similar in kind

to a later conspiracy to distribute the same drug. Rogers's prior

convictions involved possession of methamphetamine with the intent to

distribute. This crime, we think, is similar in kind to distribution of

methamphetamine, which is the crime charged in two of the three counts

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 possessed

methamphetamine with the intention of distributing it may tend to show that

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 has a substantial point, we

are not persuaded that the trial court abused its broad discretion in

admitting this prior-crimes evidence.

III.

Rogers's second argument relates to the "reasonable doubt"

instruction given to the jury. The District Court charged the jury as

follows:

A reasonable doubt is a doubt based upon reason and

common sense, and not the mere possibility of

innocence. A reasonable doubt is the kind of doubt

that would make a reasonable person hesitate to

act. Proof beyond a reasonable doubt, therefore,

must be proof of such a convincing character that a

reasonable person would not hesitate to rely and

act upon it. However, proof beyond a reasonable

doubt does not mean proof beyond all possible

doubt. 

Rogers proffered the addition of the following sentence: "A reasonable

doubt is one that fairly and naturally arises from the evidence or lack of

evidence produced by the government." Appellant's Br. 15. The Court

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. Nebraska, 114 S. Ct. 1243 (1994).

The instruction must "convey the concepts of reasonable doubt and

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

that reasonable doubt may arise from a lack of evidence -- and

rejected it. See, e.g., United States v. Baskin, 886 F.2d 383, 388

(D.C. Cir. 1989) (reasonable doubt instruction not error where

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).

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States v. Collins, 66 F.3d 984, 987 (8th Cir. 1995). However, a "defendant

is not entitled to a particularly worded instruction where the

instruction[] given . . . correctly state[s] the applicable law and

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 informed

Rogers's jury, as it has many others, of the government's burden of proof.

The instruction has been 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. 1403

(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 of

evidence may cause one to have a reasonable doubt is self-evident.

IV.

Finally, Rogers claims that the evidence was insufficient to support

his convictions of conspiracy to distribute methamphetamine and

distribution of methamphetamine. In reviewing this claim, we view the

evidence in the light most favorable to the verdict, giving the government

the benefit of all reasonable inferences. Shoffner, 71 F.3d at 1433. We

reverse only if no reasonable jury could have concluded that the defendant

was guilty beyond a
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reasonable doubt. Ibid.

To prove that Rogers engaged in a drug conspiracy, the government

must demonstrate that an agreement existed between at least two people;

that the defendant knew of the conspiracy; and that the defendant

intentionally joined the conspiracy. Ibid. To prove that Rogers engaged

in the distribution of methamphetamine, the government was required to show

that Rogers knowingly sold or otherwise transferred methamphetamine. 

The evidence was more than sufficient for the jury to find Rogers

guilty beyond a reasonable doubt. Several of Rogers's alleged coconspirators testified against him, including Pyle and Tolkan. Their

testimony established that Rogers supplied them with methamphetamine in

resale quantities on several occasions, including the dates charged in the

indictment. United States v. Eneff, 79 F.3d 104, 105 (8th Cir. 1996)

("evidence of multiple sales of resale quantities is sufficient in and of

itself to make a submissible case of a conspiracy to distribute"). But we

need not depend solely on the testimony of co-conspirators in this case.

Their testimony was corroborated by seemingly disinterested witnesses and

telephone records from various hotels where the men met. Moreover,

Rogers's business, B & W, was directly connected with the transfer of drug

money from Missouri to California, as evidenced by Western Union receipts.

Rogers points out that the testimony of his alleged co-conspirators

may have been influenced by their interest in receiving more lenient

sentences. Self-interest may have been the impetus for their testimony,

but that fact does not render the testimony incredible. Whether or not

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. 
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The judgment is affirmed.

A true copy.

Attest:

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