* The Honorable Pet er C. Economus, Unit ed Stat es Distr ict Judge for

the Northe rn District

of Ohio, s itt ing by desig nation

. NOT RECOM MENDED F OR FULL-T EXT PUBL ICATION File Name: 04a0025n.06 Filed: October 13, 2004 No. 02-6251 UNITED STATES COURT OF APPEALS FOR THE SI

XTH CIRC UIT UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. WILLIAM E. CLARK, Defendant - Appellant

.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ) ON APPE AL FROM THE U NITE D STATES DISTRICT C OURT FOR THE EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE

OPINION

Before: COL E and NORR IS, Circui

t Judges; an d ECONOMU S, District Judge. * This case arises from the indictment, trial and conviction of Defend

ant-Appell ant Willia

m Earl Clark on charges of possession with intent to distribute crack c ocaine in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(C). On appeal, Clark attacks the suffic iency of th e indictme nt, alleging

that it failed to st

ate an essential ele

ment of the charge aga

inst him, t o wit, the quantity of crack cocaine attri buted to him, in violation of Apprendi v. New Jersey , 530 U.S. 466 (2000). Cl ark als o challenges t

he Eastern D istrict

of Tennessee’s jury selection process, citing the absence of blacks from both the jury venire and the petit jury that convicted him. See Batson v. K entucky , 476 U.S. 79 (1986 ). Fina lly, Clark a sserts that the district cou rt’s admis sion of vid

eo and testim

onial evidence of Clark’s

prior bad acts violated Ru

les 403 and 4 04(b) of th e Federal Ru les of Evid

ence. For the reasons stated bel ow, we AFFIRM the judgment of the d istrict court

.2

I. FACTUAL AND PROCEDURAL BACKGROUND OnApril 10, 2001, Kno xville P olice Depar tment Of ficers Greg

Womac, Terry Clow ers, Felix Vess, and John William s entered Ap artment 26 6 of the Lon sdale Housi ng Develop ment in Knoxville, Tennessee, to serve Cla rk with several outstanding warrants for his arrest. Upon entering the apar tment’s be droom, Officer C lowers and O fficer Womac observed Clark attempting to hide underneath

a table next t

o the b ed. F ollowing the officers’ instructions, Clark slid out from underneath

the table and remained lying on the floor face down while Off icer Wom ac hand-cuf

fed him. When Of

ficer Wom

ac attempt

ed to assist C lark to his feet , a prescription bottle fell from Clark’s waist area an

d rolled against the dresser. Recovering

the bottle, O fficer Womac obse rved what appeared to be approximately twenty rocks of cra

ck cocaine in side. A lab t est later con firmed that the pres cription bot

tle containe d 3.58 gram s of cocain e base, also known as “crack” cocaine. On December 19, 2001, a federal gr and jury sitt

ing in the Ea stern

District of

Tennessee a

t K noxvillereturned a one-count drug trafficking indictment against Clark, charging him wit h pos session of crack co caine with in tent to distri

bute in viola

tion of 21 U .S.C. §§ 8 41(a) an d 841(b)(1)(C). The indictment failed to specify a drug quantity. Prior to trial, the g overnmen

t provided notice of its

intent to introduce

evidence of

other acts pursuant to Rule 404(b) of the Federal Rules of Evidence. Specifically, the governmentgave notice that it intended to introduce testimony and vide o-tap ed surveilla nce of Clar

k distributi

ng crack cocaine within the 18 months preceding his April 10, 2001 arrest. Clark objected by filing two motions in limine, and, on the morning of the first day of trial, the district court heard argument from counsel on the mot

ions. Following argum

ent, the cou

rt orally ove

rruled Clark’s motions in

limine and admit ted the 404(

b) evidence

.3

The court then called the jury venire into the courtroom and conducted voir dire. Following completion of voir dire , defense c ounsel obje cted to the la ck of any Af rican-Am ericans in

the venire, and stated that he would be looking into the issue. The court advised that it would entert ain the issue at the end of the day. Following opening arg

uments, Officer Womac took the stand and te stified as to the details of Clark’s arre st and t he confiscation of the prescription bottle. A laboratory techni cian from the Tennessee

Bureau of

Investi gation Cr ime Laboratory later testif

ied that the r

ocks inside

the bottle constituted 3.58 grams of crack cocaine. Further evidence f

ocused on whether Clark had the requisite intent to sell the crack cocaine found in the prescr

iption bottl e. Dave Lew is, a special

agent for th e Drug Enf orce ment Administ ration, test

ified that, in his expert

opinion, th e packaging

and numb er

of rocks inside the pill bottle in

dicated pos session wit

h intent to se ll. Specifi cally, Lewi s testified t hat: A person that’s possessing drugs for personal use in no way would possess 20 to 23 rocks of crack cocaine at any one time; and [further], the size of the rock itself, along with the quantity of the rocks, shows me this is crack cocaine that’s possessed for the purpose of distribution. These are 20-dollar rocks on the street. A person wou

ld drive up to

the distribu

tor, “I need a 20,” and this would be what they were referring to. The particular si ze of the rock that’s a

common ly purchase d size that

a person wo

uld purchas e for use, they would purchase one, maybe two rocks at one time; usually one rock. * * * * * * * * * [O] ne thing yo u should not be confused about is the amount that’s possessed for personal use and the a

mount tha

t’s possesse d

fo r distri bution. A nd in my investigati ons, there’s

no – it’s very

easy to disce

rn that. (Joint Appe

ndix, at 184 -86). A former girlfriend of Clark’s, Cari Ramsey, testified that, while livi ng in the Lonsdale Housing Development, she frequently observed C lark se lling crack cocaine from the porch of a4

nearby apartment building. Immediately following her testimony, the court ga ve the following limiting instruction to the jury:

Membersof the jury, you have just heard testimony from Ms. Ramsey tha t the defendantco mmit

ted an act or a

cts other tha

n the ones ch arged in the i ndictmen t. You cannot cons ider this test imony as e

vidence tha

tt he defendant committed the crime that he is on t

rial for now . Instead yo u can only co nsid er it in deciding whether the defend

ant possess ed the requis ite specific intent to dis tribute the cocaine base that is charg ed in this indictment, but do not conside r it for any o ther purpos e. And rememb er that defe

ndant is on t

rial her e only for t

he offens e charged in

this indictmen t. (Joint Appe

ndix, at 200 ). Officer Vess then to ok the stand

and testifi ed

that on February 11, 2000, while videotaping from an upstairs apartment window in the Lonsdale Housing Development, he captured the defendanton videotape selling what appeared to be crack cocaine. The prosecution then played a three minuteportion of the vide otape for th e jury, without audio. O n cross-exam

ination, Of

ficer Vess admitted

that the image on camera was “pretty much smudged” because the camera had been situated behind a w indow scr een appro xima tely 30 yar ds away fro m Clark. (Joint Appen dix, at 228). However, Officer Vess averred that he ha d personally observed, with the assistance of binoculars, the precise even ts depicted on the tape, a

nd thus had n

o doubt that

the person appearing on the video was Clark. Immedia tely following Officer Vess’ testimony, the court gave another limiting instruction to the jury: Membersof the jury, once again, you have heard some testimony that the defendant

committ ed an act or acts

other than th e one charge d in the indic tment. You cannot consider this testim

ony as evidence th at the defen dant comm

itted the crim

e that he is on trial for no w. Instead, you can only consider it i

n deciding w

heth er th e de fendantpossessed t

he requisite

specific in

tent to distri

bute the coc aine base tha t is charged in th

is indictment. Do not

consider it for any other purpose. Rememb er5 that the defendant is on trial here only for the charges con tained in thi s indictme

nt, not the othe

r acts. (Joint Appe

ndix, at 225 -26). Uponthe conclusion

of the firs t day of tria

l, the court r

evisited def

ense counse l’s objection to the racial co mposition of the jury pool. The court noted that the issu

e should hav e been addressed prior to voir

dire, purs uant to 28 U .S.C. § 18 67; thus, de fense coun sel’s object ion was untimely. Nonetheless, the court called Helen Spears, the jury admin istrator for

the Eastern

District of Tennessee a

t Knoxville , to the stand

to explain the juror selec tion process in her distric t. Spears explained that prospective jurors a re first selected at

random f

rom the vo ter registrat

ion lists in four teen su rrounding counties according to percentages of population for each county. Questionna

ires are then sent to those persons and, upon return, reviewed for disqualifying factors, such as age, non-re sidency in the district, o r death. The qualified names are placed in to a compu

ter system which randomly select s the jury ven ires. Spears

testif ied t hat she would have no way of knowing the race of persons selected fr om the vot

er registrati on lists, and

that neither

she, nor any other person

on her staff

, had system

atically exc luded any m

ember of any race from the pool

. Defen se counsel dec lined to ask a ny question s of Spears

and offer

ed no eviden

ce t o contradict her testimony. Accor

dingly, the

court overruled the objection to the composition of the jury pool. Following the second day of trial, the jury returned the follow ing speci al guilty ver dict against Clark: Interrogato ryNo. 1: As to the charge cont a ined in the indictment, do you find the defendant, William Earl Clark, guilty or not guilty? The answer is guilty. Interrogato ryNo. 2: What do you fi nd to be the a

mount of cocaine bas e, i.e., crack cocaine, in

volved in th e offense? T

he answer is

3.58 gram s.6

(Joint Appe

ndix, at 325 ). OnSeptembe

r 12, 2002, Clark filed

a pro se motion to

dismiss th e indictme

nt for fail ure to allege a drug quant

ity under Apprendi v. N

ew Je rsey , 530 U.S. 466 (2000). On October 1, 2002, the distr ict cour t denied the motion to dismiss the indictment and sentenced Clark to a period of incarceration of 210 months. This timely appeal ensued. II. ANALYSI S A. Clark’s Motion to Dismiss the Indictment on Apprendi Grounds Clark asserts that t

he district court erred in denying his motion to dismiss the indictment on grou nds that the indictment did not allege a quantity of crack cocaine, pursuant to Appre ndi

. BecauseClark objected to the district court’s drug quanti ty determination, we review h is Apprendi challenge de novo

. United Stat es v. Copeland , 321 F.3d 582, 601 (6th Cir . 2003); United Stat es v. Samuels , 308 F.3d 662, 671 (6th Cir. 2002). Clark’ s conte ntion that th e indictme nt is constit

utionally de fective bec ause it fails to state

anessential element of the charge – the quantity of drugs attrib

uted to him

– is without

merit. In Blakely v. Washi ngton , 124 S.Ct. 2 531 (2004), the Suprem e Court relie d upon its do ctrine in Apprendi and cautioned sentencin g courts not

to enhance crim

inal sentenc es on the bas is of factu al findings not made bya jury b eyond a reasonable doubt. Blakely , 124 S.Ct. at 2538. Cl ark’s sentence, however, w as based upon a jury’s fi nding beyo nd a reasona

ble doubt that h e was carrying 3.58 gram s of crack co caine. Accordingly, hi s challenge f ails. B. Clark’s Cha

llenge to th e Racial Co mposition o f the Jury V enire Following voir dire, Clark’s cou nsel notifi ed the distri ct court that he objected

to the jury’s racial composit

ion because

the p etit jury consisted solely of Caucasians. Clark contends that the7

seating of an all-white jury violated hi s d ue process ri ghts under t he Sixth and

Fourteenth Amendm ents which

entitle him

a jury com

posed of a f

air cross-sectio

n of the com

munity in which he was charged. On this basis, Clark asks that his conviction be overt urned. “Whether a defendan

t has been de

nied his righ

t to a jury select

ed from a fair cross-section of the community is a mixed questionof law and fact, which we review de novo .” United Stat es v. Buchanan , 213 F.3d 302, 308 (6th Cir. 2000) (quoting United Stat es v. Allen , 160 F.3d 1096, 1101 (6th Cir. 1998)). The govern

ment argues that Clark ’s challenge to the jury’s ra

cial composit

ion is untim

ely pursuant to the Jury Selection and Service Act, 28 U.S.C. § 1867, bec ause Clark f ailed to raise

this issue “before the

voir dire exa

mination b egins, or within seven days after the def

endant disc overed

or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier.” See 28 U.S.C. § 1867(a). T he district co

urt found t

hat Clark’s c

halle ng e was untimely, but nonetheles s proceede d t o address it on the merits. While we agree that Clark’s challenge to the jury’s composition should be timed barred, see United S tates v. Ova lle , 136 F.3d 1 092, 1098 ( 6th Cir. 1998), the district c ourt’s rulin g can be aff

irmed on the merits as

well. The Sixth Amendment

requires tha

t the jury ven

ire from w

hich a jury is

selected represent

a “fair cross-section” of the community. Taylor v. Louisian a , 419 U. S. 522 (197 5). In order to establish a prima facie showing of a violation o f the Sixth Amendm

ent’ s fair cr oss-section requireme

nt, a defendant must demonstrate that: (1) the group alleged to be excluded is a distinctive gro up in the com

munity; (2 ) the represe

ntation of t

his group in

venires fro m which ju

ries are selected is not fair a

nd reasonab le in relation

to the numb er of persons in the community; and (3) this under-repre sentation is due to syste

matic exclusion o f the group in the jury

selection pr

ocess.1 Although it does not alte

r our dispos ition here, w e note that th e dist rict co urt incorrec tly conceded that defendant had satisfied the second e le ment. The court, notin

g that the ent

ire jury venire consisted o f Caucasia ns, agreed w

ith defense

counsel tha

t the second element ha

d been satisfied: [Defense

counsel]: T

he s econ d [elemen

t] is that [A frican-Am

ericans are] underrepresented

in the venire . Well, ob viously, th ey were, bec ause - - The Court: T

hat’s right. [Defense counsel]: S o we fit the

second one. (Joint Appe

ndix, at 266 ). However, this Court h as rejected the argumen t that “becaus e [a] parti cular jury pa nel contained no African - American s, [defen dants] hav e m et their burden of proof” as to the second element. Allen , 160 F.3d a t1103. Rath er, we have held that def endants “m

ust show m

ore than that their particular

panel was un

representat

ive,” and su

ggested tha

t defendan

ts would nee d

to provide evidence that mem ber s of a race were under-represented in other jury pools in that district during the relevan t time period. Id . at 1103-04 . For exam ple, in Duren , the United

States Supr

eme Court looked at “the mak

e-up of the

weekly ven

ires over several months time in determining whether the secondprong was m

et.” Id . at 1103 n.5 (citing Duren , 439 U.S. a t 362-63). C lark has not c arried this burden.

8 Buchanan , 213 F.3d at 309-10; Allen , 160 F.3d at 1103 (citing Duren v. Missou ri , 439 U.S . 357 (1979)). The district cou

rt conceded

that Clark

had established

the first tw o requirements of the prima facie case, 1 and took testimony regarding the third element. In response to questioning from the court, jury administrator Spears testified that the pool of eligible jurors, from w

hich the jury ven

ire is selected, comes from the voter regist ration lists. The lists enc ompass se veral diff erent counti es, and the propo rtions fr om e ach county reflect the p ercentage in the overall p opulation. Spears stressed that the syst

em for j uror s election was purely random, aside from the proportionality of population procedures

mentione d

above. Defense counsel asked no questions of Spears and did not int roduce evidence to contradict her description of the Eastern Dist rict’s jury selection system
. Indeed, Clark failed to produce any evidence tha t the unde r-representa tion of blacks in his jury9

venire resulted fr

om system

atic exclusi on. Accord

ingly, he ca

nnot establi sh a prima facie violation of his right to a jury panel composed of a fair cross-section of his peers. C. Admission of Evidence of Prior Acts Pursuant to Rule 404(b) Clark’s final argum

ent is that th e trial court e

rred in admitti ng evidence

of Clark’s

other acts related to his involvement in drug sales. Rule 404(b) of the Federal R

ules of Evi dence provi des that evidence of other act s is “not adm

issible to prove the character of a person in order to show action inconformity therewith . . . .” Such evidence, however, m

ay be admi ssible for o ther purpos es, including proof of “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistak e or accident

. . . .” Id. This court has established a three-step a nalysis for

determini

ng the adm

issibility of evidenc e of other act s under Rule 404(b). See United States v. Haywood , 280 F.3d 7 15, 719-20 (6th Cir. 2002). The first st

ep requires t

he district co

urt to decide

wheth er th ere is suff

icient evide

nce that the other act in q

uestion actu

ally occurre d. If the an swer is aff irmative, the court is t

hen required to de cide whethe

r the evidenc e of the oth er act is “pro bative of a m

aterial issue

other than character.” Id

. (citing United States v. Johnson , 27 F.3d 1186 (6th Cir. 19 94)). Final ly, if the di strict court determine s that the evi dence is pro bative of a m

aterial issue

other than character, i

t is required to determine whether the probative value of th e evidence is substanti ally outwei ghed by its p otential prejudicial effect. Id . Clark challenges the district court’s ruling a s to each step.

1. Standard o f Review We review the district court’s factual finding that the “other acts” occurred un

der the clearly

erroneous standard. United Stat es v. Spikes , 158 F.3d 913, 929 (6th Cir. 1998). We review the dis trict court’s rulin

gs regarding

both the sec ond and thir d steps of the Rule 404(b ) admissib ility10

analysis to determine whether the district court abused its discre tion. See, e.g., Unit ed Sta tes v. Jenkins , 345 F.3d 92 8, 936 (6th C ir. 2003); Ha yw ood , 280 F.3d at 720 (citing Trepel v. Roadway Express, Inc. , 194 F.3d 70 8, 716 (6th C ir. 1999) (holding that “ all evidenti ary rulings a re subject to the abuse of

discretion s tandard of

review.”)). 2. Sufficienc

y of the Evid ence Clark challenges t

he district co

urt’s factual determination as to the video evidence, asserting that the video tape the court admitted at trial was “out of focus” and that “facial feat ures could not be discerned. ” Although

it is undispu

ted that Clar

k’s image o

n the tape ap

peared blurr

ed, the cour

t admitted the tape su

b ject to the government’s assurance that a witness would provide test imony identifying the person on tape as Clark:

[Defense counsel] a

rgues that it

is impossible to identify the man on the tape as the defendant

. [The pro secuto r] assures m e that the per son who did the video ca

n identify the individu

al on the tape

involved in

the transact

ion; that, as

a matter of fact, a week later, he had

the occasion to identify

[the defen

dant] as the

individual. (Joint Appe

ndix, at 70- 71). Officer Vess then

positively identified Clark in the courtroom and testifi ed to having created the video tape o f Clark sell ing drugs. O fficer Ves s explained that, althou

gh he did no t know Clar

k at the time he recorded the drug transactions, h e le arned Clark ’s identity a lmost im mediately thereafter. The defens e was able to cross-exam

in e Off icer Vess, a

nd the jury h ad an adequa te opportunity to weigh his testimony. Clark also attacks

Ramsey’s

testimony , asserting t

hat she lacke d credibility beca use, although she claime d to have wit nessed Clar

k conductin

g prior drug

sales, she f

ailed to connect those sales with a “ specific tim e, day, or m

onth.” (Ap

pellant’s Br

ief, at 11). As the fo llowing response to

defense co

unsel’s que stioning de

monstrate s, this is sim

ply inaccura

te:11 Q: When was it that you saw him [selling drugs]? A: April, May. He went to jail June the 7th. Ap ril, May, all the ti me before that. He went to ja

il June the 7t

h, is when he was

arrested. A

nd it was wa

rm outside. (Joint Appendix, at 207). Moreover, defense cou nsel a gain receive d ample op portunity to

crossexamine Ramsey, and the jury had an adequate chance to weigh her testimony. On thi s basis, we cannot conclude th at the distric t court committ ed clear erro r in

determini

ng that these

prior acts ha

d taken place. 3. Probative V alue for a Pu rpose Other than Char acter “Evidence

of other acts is probative of a material issue other than character if (1) the evidence is offered for an admissible purpose, (2) the purpose for which t

he evidence

is offered

is material or ‘in i ssue ,’ and (3) the evidence is p

robative wi

th regard to t

he purpose f

or which it is offered.” Haywood , 280 F.3d at 720 (citing Johnson , 27 F.3d at 1190-91). Here, the government asserts that it introd

uced eviden

ce of Clark ’s past drug s ales as proof of Clark’s

intent to dis tribute the crack cocaine found in his possession o n April 10, 2001. Beca use Rule 40 4(b) explici

tly includes “intent” in its list of proper purposes for which ot her acts eviden ce may be admitted, we find that the evidence was offered for an admissible purpose. Id . at 720-21. Furthermore, we find that Clark’s intent was material or “in issue” during h is tri al. This court has held that “[w]here there is thrust upon the government . . . the affi rmat ive duty to prove that the underly

ing prohibi

ted act wasdone with a s

pecific crim

inal intent, other acts evidence m ay be introduced

under Rule 4 04(b).” Johnson, 27 F.3d at 1192. The g overnmen

t charged Cl ark with possession of crack co caine with the intent to di stribute, a s pecific int

ent crime. See Spi kes , 158 F.3d at 930 (“More over, this court has held that Rule 404(b) evidence is admissible to prove intent12

if specificintent is a statutory element of the offense . . . . Posses sion with th e intent to di stribute is such an off

ense.”) (cit

ations om itted). Thu s, Clark’s in

tent was “in

issue” durin

g his trial. Our final inquiry at this stage in our analysis is to dete rmine whether the evidence of Clark’s priorcrack cocaine sales was probative of his intent to distribute crack cocaine on Apri l 10, 2001. To determine

if evidence

of other act s is probativ e of intent, “we look to w hether the evidenc e relates to conduct t

hat is ‘subst

antially sim

ilar and reas onably near in time’ to t he specific intent offense at issue.” Haywood , 280 F.3d at 721 (quoting United Stat es v. Blanke

nship , 775 F.2d 735, 739 (6th Cir. 1985)). Clark’s prior acts of

selling crac k cocaine be ar substanti al similarity to his conviction of possession of crack co caine with the intent to

distribute in

this case. C ari Ramse

y and Off icer Vess testified that the prio r transaction s consisted o f Clark selling rock s of crack co caine from a pill bottle inthe Lonsdale Housing Development. (Joint Appe ndix, at 199 -201, 217-1 8). In the ins tant case, police arrested Cla

rk in the same n eighborhood and in possession of the same drug. Indeed , Clark

was on a “no-tres pass” li st that proh ibited him from enter ing th e Lo nsd ale H ous ing D eve lopm ent at a ll (Joi nt Appendix, at 224-25, 289-90), but Ramsey testif ied that Clark continued t o frequent t he area and sell crack

c ocaine from a neigh borh ood porch . (Joint Ap pend ix, at 196 -99). Moreover, R amsey fu rther tes tifie d that the pill b ottle found

in Clark’s p ossession d

uring his arr

est was iden

tical to thos e from wh

ich Clark had previou sly sold rocks of crack cocaine. (Joint Appendix, at 200-01). Finally, the prior sales occurred no

more than

14 to 18 mo

nths before trial, a time pe riod which t

he district co

urt found, and we agree , to be reaso nable. See United Stat es v. Ismail

, 756 F.2d 1 253, 1260 ( 6th Cir. 1985) (admittin

g evidence o f acts occur ring betwee

n two and f

our years pri or to the o ff ense charged); see also United States v. Jerkins, 871 F.2d 598, 604 (6th Cir. 1989) (eight to ten -year old13

convictions admitted) , United States v. Ru bio-Gonza lez, 674 F.2d 1067, 1075 (5th Cir.1982) (tenyear old convict

ion admitt

ed); United Stat

es v. Foley, 683 F.2d 273, 278 (8th Cir.), cert. denied, 459 U.S. 1043 (1982 ) (eleven-ye ar old convi ction adm itted); United

States v. Engleman, 648 F.2d 473, 479 (8th Cir.1981) (thirteen-year old conviction admitted).

4. Rule 403 Balancing of Probativ e Value and

Potential P rejudicial E ffect Having concluded that Clark’s prior acts of selling crack cocaine were probative of his intent to sell the crack

cocaine fo

und in his p o ssession on April 10, 2001, our final task is to determine whether the

district court abused its discretion in determining that the probative value of the prior acts was not sub stantially outwe ighed by the potential prejudicial effect. Fed. R. Evid. 403; Johnson , 27 F.3d at 1190-91. The district court conducted the following analysis in admitting the evidence of

Clark’s prior crack cocai ne sales: Weighing – going thro

ugh the 403 analysis, th e prior sale o f crack coca ine is very proba tive with regard

to intent, it

is prejudici al, but it cer tainly is not

u nfairl y prejudicial

. There ar e many cases from the circuit allowing this sort of 404(b) evidence. As to timin

g, we’re loo king at

somewhe

re between 1 4 and 18 months. The circuit has allowed pri or acts evide nce going bac

k 13 years in

one case, ei ght years in another case . So the Cou rt has no pro

blem with

the timing

here. So the governm

ent does have the burden here. I believe the government has met the burden. There is alw ays the risk o f prejudice here inthis sort of

situation. T

he rules all ow this kind of testimony and this kind of evidence. However, a limiting instruction

will cure many of the problems. (Joint Appendix, at 72). The district cou

rt’s opinion , while not exhaust ive, addr essed severa l factors wh

ich are relevant to the Rule 403 balancing. For instance, t he cour t discussed w hether the pr

ior acts were unduly prejudicial , noting tha

t “the prior s ale of crack

cocaine . . . is prejudicial , but it certa inly is14

notunfairly pr

ejudicial.” See United Stat es v. Myers , 123 F.3d 350, 363 (6th Cir. 1997) (affirming the admissionof 404(b) e vidence wh ere the distri ct court state d that “[t]here is nothing about any of [the prior crack cocaine sales], I take it, that [is] particul arly egregious[;] the y’re just other sales.”). The district court also considered the timing and similarity of the prior acts. See id . (“Yet another pertinent f

actor [in th e Rule 403 b alancing] i s when the o ther acts occurred.”) (citing Ismail , 756 F.2d at 126 0). The district court found the prior acts to be sufficiently “close in time to the alleged crim

e” so as to no t prejudice C lark “for so mething that happened in the distan

t past.” Id

. Another relevant factor in the Rule 403 balancing is “the availabil ity of other means of proof, which would redu

ce the need f

or the poten

tially conf using evide

nce.” Myers , 123 F.3d at 364 (citing United States v. Mer

riweather , 78 F.3d 1070, 1077 (6th Cir. 1996)). With regards to specific intent crimes, this Court h as previous ly recognize d that “prior acts evidenc e may oft

en be the only method of proving int

ent.” Johnson , 27 F.3d at 1192 (citing United States v. Ring , 513 F.2d

1001 (6th C ir. 1975)). Here, the government had scant evidence of Clark’s intent to sell, other than the prior drug transaction s. This was no t a case wher e police off

icers arreste d Clark in th e midst of a drug sale,

or where a conf

idential inf

ormant provided insid

e informa tion as to Cl ark’s intent to distribute the cocaine. Indeed, no w

itness exist

ed who coul d connect the crack coc aine found in Clark’s possession to any speci fic sale. At tria l, the gover

nment’sonly “other

means” of

proving Cla

rk’s intent to sell the cra

ck coca ine found in his possession was the expert testimony of special agent Lewis that “the size of the rock itself, along with the quantity of the rocks, sh ows me this is crack

coc aine t hat’s posses sed for the p urpose of d

istribution .” (Joint Ap

pendix, at 1 85). Lewis ’ test im ony, while persu

asive in its li

mited goa

l of demo nstrating th at the drugs f ound in Cla

rk’s15

possession were “packa

ged to sell,” con

tributed no d

irect evidence that Clark

had actually

sold or intended to sell the cocaine found on April 10, 2001. Finally, “[w]heth er bad-act ev idence unf

airly prejud

iced the def

endant also

is dependent i

n part on the nature of the

limiting in structions g iven by the distri ct court.” Myers , 123 f.3d at 363; M erriweathe

r , 78 F.3d at 1 077. Durin g Clark’s tri al, the distr

ict court gav e limiting

instructi on s immedia tely following

the testimony of each

witness who te stifi ed about Clark’s prior drug transaction s. The distr

ict court gav e another lim iting instru

ction at the c lose of the c ase: You have heard t

estimony that the def

endant com

mitted som

e acts other t

han the one charged in the indictment. You cannot consider this testimony as evidence that the defendantcommitt

ed the crime that he is on trial for no w. Inst ead, you can only consider it in deciding whether the defendant possessed the requisite specific intent to distribute

the cocaine b ase that is ch arged in the i ndictmen t. Do not co nsider

it for any other purpose. Rememb er

that the def

endant i s on trial he re only for the charge contained in the indictmen t, not for th e o ther acts. Do not return a guilty verdict unless the governme nt proves th e crime cha

rged beyond

a reasonable

doubt. (Joint Appe

ndix, at 319 ). Each of the three instructions was clearly p hrased, cor

rectly focu sed on “inte

nt,” and each directed the jury not t

o consider

“prior acts”

evidence f

or the purpo se of determ

ining Clark ’s guilt

or innocence

of the crime charged in th e indictme nt. While a limiting

instruction

is not a “sure -fire panacea for the prej udice result ing from the needless

admission

of [Rule 4 04(b)] evid

en ce,” Haywood , 280 F.3d at

724, an accu

rate instruct

ion will assi st

the jury in ut

ilizing prop erly admit

ted Rule 404(b) evidence in a permissible manner. See, e.g., Myers , 123 F.3d at 364. Clark protests that his situation is identical to Haywood , where we held that the admission of a defendant’s prior conviction for crack cocaine pos session dur

ing his trial f

or possessio

n of crack cocaine with intent t

o distribute

violated Ru

le 403. How ever, unlik

e the prior conviction for mere16

possession at issue in Haywood , Clark’s prior acts were identical to those charged a t trial. As we have frequently noted, “act s related to the personal u se of a cont rolled subst

ance are of a

wholly differentorder than acts involving the distribution of a contro lled substan ce.” Jenkins , 345 F.3d a

t 938 (quoting Haywood , 280 F.3d at 721). This court has consistently allowed the admission of Rule 404(b) evidence in

drug distrib

uti on cases when the prior act consisted of a similar sale of a controlled

substance ra

ther than mere possession for personal use. See id. (“Although the Government

cites severa

l cases in its brief in supp ort of its posit

ion that the d

istrict court correc tly admitted the other act s evidence, those cases a re distingui shable in that the pert inent other a

cts involved in those case s dealt

with drug di stribution, not persona l use as is the c ase here.”); see also Myers , 123 F.3d at 363 (admitting the testimony of four different witnesses concerning prior drug transactions with the defendant in order to show hi s intent to di stribute); United Stat es v. Clemis , 11 F.3d 597, 601 (6th Cir. 1993) (admitting evidenc e o f a prior drug transaction identical to the transaction for which the defendant was indicted in order to show his knowledge and involvement inthe drug con spiracy); Johnson , 27 F.3d at 1191 (adm

itting evide

nce of the d

efendant’s

past drug sales in order

to show his i

ntent to dist

ribute cocai

ne); United States v. Feinman , 930 F.2d 495, 499 (6th Cir. 1991) ( admitting

testimony

that the def

endant was i

nvolved in p

rior transportat

ion of marijuanawith the same participants and the same mode of operation as

charged in the indictme

nt). As Haywood

did not address the adm ission of a p ri or act of drug distribution, Clark’s reliance on it is inappos ite. After considering each of the relevant Rule 403 factors, we are con vinced that t he district

cour t did not abuse its discretion in determining that the probati ve value of Clark’s prior drug17

transactions was not sub stantially o utweighed by their poten tially pr ejudicial effect. Thus, the district cou

rt properly a

dmitted th e evidence. III. CONCLUS ION For the for

egoing reas ons, we AFFIRM the judgment of the d istrict court

.