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The Honorable Greg Kays, United States District Judge for the Western

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-3946

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United States of America,

Appellee,

v.

Dwight A. Thomas,

Appellant.

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Appeal from the United States

District Court for the

Western District of Missouri.

 [PUBLISHED]

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Submitted: September 21, 2009

 Filed: January 29, 2010

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Before MURPHY, HANSEN, and BYE, Circuit Judges.

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HANSEN, Circuit Judge.

Dwight A. Thomas appeals a judgment entered on a jury verdict finding him

guilty of distributing crack cocaine in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(C), and possessing with intent to distribute 50 grams or more of crack cocaine

in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii), and § 851. Thomas challenges

the district court's1

 decision to admit evidence surrounding a subsequent arrest, as well

as the sufficiency of the evidence adduced at trial to convict him. We affirm.
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I.

On April 1, 2004, after conferring with a confidential informant, Kansas City

Police Department Detective Luis Ortiz commenced an investigation of suspected

crack cocaine trafficking near the 6100 block of Olive Street in Kansas City. On April

2, Detective Ortiz met with the confidential informant to observe the informant

arrange to purchase crack cocaine from a suspected drug dealer. Detective Ortiz

watched the informant dial phone number xxx-xxx-9980, and the detective listened

as the informant arranged to purchase one hundred dollars' worth of crack cocaine.

Detective Ortiz then prepared the informant to purchase the drugs from the

suspect. The detective equipped the informant with a transmitting device. Detective

Ortiz searched the informant for drugs or weapons. Finding none, he provided the

informant with five twenty dollar bills, which the detective had previously

photocopied to record the serial numbers. The detective instructed the informant to

purchase one hundred dollars' worth of crack cocaine—as arranged in the earlier

telephone call—and to arrange a future purchase of two additional ounces of crack

cocaine.

At approximately 12:20 p.m. that same day, Detective Ortiz drove the informant

to the 6100 block of Olive Street. The detective watched the informant knock on the

front door of the residence located at 6142 Olive Street. A man whom Detective Ortiz

identified as the defendant, Dwight Thomas, answered the door and ushered the

informant inside. The informant was inside for no more than five minutes. Detective

Ortiz monitored the transmissions from the transmitting device during those five

minutes. He listened to the informant arrange for the purchase of two additional

ounces of crack cocaine, to occur later that day. During the course of that

conversation, Detective Ortiz heard only two voices.
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Detective Ortiz observed the informant exit 6142 Olive Street and walk directly

to the detective's car. In the car, the informant gave Detective Ortiz approximately an

eighth of an ounce of crack cocaine. The detective again searched the informant and

found the informant no longer possessed the prerecorded "buy money." Soon

thereafter, Thomas exited the house and drove off in a green 1995 Jeep that had been

parked in front of 6142 Olive Street during the informant's drug purchase. The Jeep

returned about three minutes later, and Thomas exited the Jeep and used keys to

unlock and enter the front door of 6142 Olive Street.

After Thomas reentered the house, Detective Ortiz departed to obtain a warrant

to search the Olive Street residence. After he obtained the search warrant, Detective

Ortiz directed the informant to schedule the purchase of an additional two ounces of

crack cocaine for that same day. The informant again dialed xxx-xxx-9980, and

Detective Ortiz again monitored the phone call. As a result of that phone call,

Detective Ortiz coordinated with a number of other police officers to execute the

search warrant.

At about 3:45 p.m. the same day, officers secured the perimeter of 6142 Olive

Street in preparation for executing the search warrant. Detective Ortiz observed

Thomas standing on the front porch. Just as the officers were about to execute the

warrant, a previously unknown individual arrived at 6142 Olive Street by car. When

the individual was out of his car and contacting Thomas, police executed the search

warrant. Both individuals were secured, and Thomas accurately identified himself to

police. A search of Thomas's person yielded a cellular telephone and over one

thousand dollars in cash, including the five photocopied twenty dollar bills given to

the informant prior to the drug transaction earlier that day. The other individual

possessed an amount of crack cocaine consistent with personal use.

Police officers searched 6142 Olive Street. No one was present inside the

residence. Detective Ortiz entered the house and observed a scale with white residue
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in the kitchen. Just inches away were baggies containing a white substance; the

substance was later tested and determined to be 55.61 grams of crack cocaine. Also

in the kitchen, police found two cell phone bills directed to the attention of Dwight

Thomas and reflecting services provided to phone number xxx-xxx-9980. One of the

bills was dated March 26, 2004. The keys found on Thomas's person operated the

locks on the doors to 6142 Olive Street.

Officers also searched the green 1995 Jeep. They found another cell phone bill

and Western Union receipts, both in Thomas's name and both listing the xxx-xxx9980 phone number. Thomas admitted that xxx-xxx-9980 was his telephone number.

In addition to evidence gathered during the April 2004 investigation, the

Government gave notice of its intent to introduce evidence of Thomas's involvement

in subsequent drug trafficking. The district court held a pretrial hearing regarding this

evidence, where Thomas challenged its admissibility under Federal Rule of Evidence

404(b). Over Thomas's objection, evidence tending to prove the following was

admitted:

In early January 2008, a confidential informant contacted Kansas City Police

Department Detective Don Stanze regarding suspected drug trafficking. The

informant indicated a man driving a red SUV, known to the informant as "Ed," was

dealing drugs at a residence located at 5216 Wabash Avenue, in Kansas City. When

Detective Stanze commenced an investigation of the suspected drug trafficking at that

address, he discovered the utilities were registered to Dwight Thomas. Detective

Stanze had been involved in the 2004 investigation of Thomas and consequently

recognized his name. On numerous occasions, Detective Stanze observed Thomas

driving the red SUV to and from 5216 Wabash Avenue. On one occasion, Detective

Stanze witnessed the red SUV depart from 5216 Wabash Avenue, and he attempted

to follow it. When the detective lost sight of the vehicle, he requested that other
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officers assist him to track the vehicle. A fellow officer located the red SUV at 4930

Wabash Avenue.

On February 19, 2008, Detective Stanze contacted the confidential informant

to arrange a controlled buy of crack cocaine from the man known to the informant as

Ed. In Detective Stanze's presence and using a speaker phone, the informant dialed

xxx-xxx-1926 and arranged to purchase crack cocaine. During that conversation, the

recipient of the call advised the informant that the recipient was at his "cook house."

As a result of the conversation, Detective Stanze advised the informant he would

follow him to 4930 Wabash Avenue in approximately one hour.

Detective Stanze met the informant at a covert location, searched the informant

and his automobile, equipped him with a transmitting device, and provided him with

$450 of prerecorded buy money. The detective and the informant then drove in

separate automobiles to 4930 Wabash Avenue. Detective Stanze watched as the

informant entered the house, and he listened as the transaction was completed. The

red SUV was parked at 4930 Wabash Avenue at that time. After the transaction,

Detective Stanze maintained visual contact with the informant until the two again met

at the agreed upon covert location. When they met, the informant provided Detective

Stanze with 14.1 grams of crack cocaine. At the conclusion of the meeting, Detective

Stanze concluded Thomas was selling and storing drugs at 4930 Wabash Avenue.

Consequently, Detective Stanze obtained search warrants for two residences: 4930

Wabash Avenue and 5216 Wabash Avenue.

Detective Stanze employed the confidential informant to arrange a second

controlled purchase of drugs, to coincide with the execution of the search warrants.

Again, on February 20, Detective Stanze watched as the informant dialed xxx-xxx1926 and listened on the speakerphone as the informant arranged to purchase 7 grams

of crack cocaine for $225. Later the same day, the detective again met with the

informant, searched him, equipped him with a transmitting device, and provided him
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with prerecorded "buy money." He watched as the informant entered the house at

4930 Wabash Avenue, and he listened to a drug transaction via the hidden

transmitting device. Detective Stanze recognized the informant's voice as well as the

same voice from the previous phone calls and previous transaction. After the

informant exited 4930 Wabash Avenue, Detective Stanze followed him to a covert

location. There, the informant gave Detective Stanze crack cocaine.

After debriefing the informant, Detective Stanze returned to 4930 Wabash

Avenue, where a police tactical unit was executing the search warrant. Police

detained five people in the residence, including Thomas. Detective Stanze recognized

Thomas's voice from monitoring the informant's phone calls and drug transactions.

At that time, Thomas possessed $4298, including the $225 in prerecorded buy money.

Police also found multiple bags of crack cocaine on the kitchen counter, digital scales

of the type used to weigh drugs, and two cell phones. There was a trail of crack

cocaine on the floor between the kitchen and the location where police had detained

Thomas. Thomas acknowledged ownership of one of the cell phones found in the

kitchen near the drugs. Detective Stanze dialed the number used to arrange the two

controlled buys—xxx-xxx-1926—and Thomas's phone rang. Police also found 14

grams of crack cocaine hidden in the basement along with a digital scale. Upon

searching 5216 Wabash Avenue, police found a digital scale and a gas bill directed

to Thomas.

Thomas moved for a judgment of acquittal at the close of the Government's case

and also at the close of all evidence. The district court denied both motions and

submitted the two count indictment to the jury. The jury returned a verdict of guilty

on both counts. Thomas appeals, arguing (1) evidence of the 2008 investigation and

arrest was introduced in violation of Federal Rule of Evidence 404(b); and (2) there

was insufficient evidence to support the jury's verdict.
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II.

The district court enjoys broad discretion to admit evidence of other crimes.

United States v. Thomas, 398 F.3d 1058, 1062 (8th Cir. 2005). We review a district

court's decision to admit evidence under Federal Rule of Evidence 404(b) for abuse

of discretion and "'reverse only when such evidence clearly had no bearing on the case

and was introduced solely to prove the defendant's propensity to commit criminal

acts.'" Id. (quoting United States v. Howard, 235 F.3d 366, 372 (8th Cir. 2000)).

While outlawing admission of evidence of other crimes that is proffered "to

prove the character of a person in order to show action in conformity therewith,"

Federal Rule of Evidence 404(b) allows such evidence "for other purposes, such as

proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence

of mistake or accident." It is well-settled in this circuit that the rule is one of

inclusion, "such that evidence offered for permissible purposes is presumed

admissible absent a contrary determination." United States v. Johnson, 439 F.3d 947,

952 (8th Cir. 2006). Evidence of other crimes is admissible under Rule 404(b) if it is

"(1) relevant to a material issue; (2) similar in kind and close in time to the crime

charged; (3) proven by a preponderance of the evidence; and (4) if the potential

prejudice does not substantially outweigh its probative value." Thomas, 398 F.3d at

1062.

Thomas argues that the evidence of the 2008 crack cocaine trafficking fails

three of the four requirements. He argues that the evidence is not relevant to a

material issue raised at trial, is not similar in kind and close in time to the crime

charged, and that the probative value of the evidence is substantially outweighed by

its prejudicial value.

Thomas pled not guilty and generally denied participation in the charged

crimes, requiring the Government to shoulder the burden of introducing proof beyond
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a reasonable doubt of every element of each offense charged. United States v.

Johnson, 934 F.2d 936, 939-40 (8th Cir. 1991). Nonetheless, Thomas relies on

United States v. Jenkins, 7 F.3d 803, 806-07 (8th Cir. 1993), and he argues that

evidence of the 2008 investigation is not relevant because "intent is not an issue when

the defense at trial is a complete denial that the defendant participated in the drug

transactions charged." (Appellant's Br. at 11.) We have previously rejected the

(effectively identical) argument that, while intent may be an issue in a given case,

intent is not in issue when a defendant completely denies participation in the crime.

See Johnson, 439 F.3d at 952 (noting "the Supreme Court's decision in Old Chief v.

United States, 519 U.S. 172 (1997), effectively overruled Jenkins").

Intent was an element of each of the offenses charged in this case. See Johnson,

934 F.2d at 939 n. 5 (elements of distribution offense); United States v. Timlick, 481

F.3d 1080, 1082 (8th Cir. 2007) (elements of possession offense). This is not the first

time we have held knowledge and intent are material issues in cases involving

distribution of narcotics in violation of 21 U.S.C. § 841(a)(1). See Johnson, 934 F.2d

at 939. Evidence of other acts is generally admissible to establish those elements. Id.

Additionally, "'the mere subsequency of an act to that charged in an indictment does

not on that ground alone make it incompetent to establish intent or motive.'" Id. at 940

(quoting McConkey v. United States, 444 F.2d 788, 790 (8th Cir.) (per curiam), cert.

denied, 404 U.S. 885 (1971)). We reject Thomas's argument that evidence of the 2008

investigation was irrelevant.

Thomas also argues that evidence from the 2008 investigation is not sufficiently

close in time to be admissible under Rule 404(b). "There is no absolute rule regarding

the number of years that can separate offenses" admitted under Rule 404(b). United

States v. Edelman, 458 F.3d 791, 810 (8th Cir. 2006). This is because "[a]lthough

proximity in time combined with similarity in type of crime virtually guarantees

admittance of prior bad acts evidence, these are only factors" useful for evaluating

"[t]he ultimate question . . . whether the evidence is admissible to prove any relevant
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issue other than the character of the defendant or his propensity toward criminal

activity." United States v. Drew, 894 F.2d 965, 970 (8th Cir.) (citations and

quotations omitted), cert. denied, 494 U.S. 1089 (1990). Where the extrinsic act is

extremely similar to the crime at issue, evidence of the act will usually be rendered

irrelevant only by "an enormous lapse of time." United States v. Anifowoshe, 307

F.3d 643, 647 (7th Cir. 2002); cf. Drew, 894 F.2d at 970 ("In the case of signature

crimes, or other crimes by the accused so nearly identical in method as to earmark

them as the handiwork of the accused, the time factor is obviously much less

important than in the typical 404(b) case." (citation and quotations omitted)).

The similarity of the other acts evidence introduced in this case is unquestioned.

In fact, Thomas stresses the similarity of the evidence in attempting to show he was

prejudiced by its introduction. The 2004 and 2008 investigations occurred in the same

general geographic area. In each instance, police observed the confidential informant

dial Thomas's telephone number and arrange a drug transaction; police accompanied

or followed the informant to a residence controlled by Thomas, where his automobile

was parked. Subsequent to the drug transaction in each case, police performed

searches of Thomas and the residence. Both times, Thomas was found with large

quantities of cash, including prerecorded buy money, and the residence housed crack

cocaine, paraphernalia often associated with drug distribution, and personal

documents implicating Thomas.

We have approved the admission of evidence of similar crimes that occurred

a decade before the charged crime. See, e.g., United States v. Ironi, 525 F.3d 683, 688

(8th Cir. 2008) (allowing evidence of possession of cocaine occurring eight and ten

years before the aiding and abetting possession with intent to distribute cocaine charge

at issue). The terms of Rule 404(b) draw no distinction between prior and subsequent

acts that would support different analyses, Anifowoshe, 307 F.3d at 646-47, nor have

we applied different analyses to evaluate the admission of prior and subsequent acts,

see, e.g., United States v. DeAngelo, 13 F.3d 1228, 1231 (8th Cir.) (applying well-
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established four-factor test to determine admissibility of subsequent act evidence),

cert. denied, 512 U.S. 1224 (1994). Considering the similarities between the crimes

charged and the subsequent-acts evidence, we cannot say the mere passage of four

years' time renders the evidence irrelevant to show knowledge or intent.

Finally, Thomas argues the probative value of the subsequent-acts evidence is

substantially outweighed by the danger of unfair prejudice. Again, we have held

evidence of similar drug activity to be probative of intent in proving a previous

violation of 21 U.S.C. § 841(a)(1). Johnson, 934 F.2d at 940. And again, the

subsequent-acts evidence is undeniably similar, and Thomas acknowledges the

similarity. Additionally, the district court instructed the jury that evidence of the 2008

investigation could be used only to establish Thomas's intent, knowledge, or lack of

mistake. Such limiting instructions minimize the danger of unfair prejudice. United

States v. Hessman, 493 F.3d 977, 983 (8th Cir. 2007), cert. denied 128 S. Ct. 1100

(2008). Given the relevance of the evidence—as bolstered by significant

similarities—and the limiting instruction, we cannot say the evidence "'clearly had no

bearing on the case and was introduced solely to prove the defendant's propensity to

commit criminal acts.'" See Thomas, 398 F.3d at 1062 (quoting Howard, 235 F.3d at

372). Consequently, the district court did not abuse its discretion. 

III.

Thomas also contends there was insufficient evidence to convict him of either

count of the indictment. We review de novo the denial of a motion for judgment of

acquittal, and "[w]e may reverse only if no reasonable jury could have found the

defendant guilty beyond a reasonable doubt." Timlick, 481 F.3d at 1082.

Thomas argues the evidence at trial did not foreclose the possibility that another

person was inside the 6142 Olive Street residence on April 2, 2004, when the

confidential informant used the prerecorded buy money to purchase crack cocaine.
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As to the second count—possession with intent to distribute 50 grams or more of

crack cocaine—Thomas's argument does nothing to address binding circuit precedent

that dictates an affirmance of the jury's verdict. Count two required proof beyond a

reasonable doubt that Thomas (1) knowingly possessed 50 grams or more of crack

cocaine, and (2) intended to distribute the crack cocaine. 21 U.S.C. § 841(a)(1) and

(b)(1)(A)(iii); Timlick, 481 F.3d at 1082. The element of knowing possession may

be satisfied with proof of constructive possession. Timlick, 481 F.3d at 1082. "We

have joined 'every other circuit to address this issue [and have held] that the holder of

the key, be it to the dwelling, vehicle or motel room in question, has constructive

possession of the contents therein.'" Id. at 1083 (quoting United States v. Brett, 872

F.2d 1365, 1369 n.3 (8thCir.) (collecting cases) (alteration in original), cert. denied,

493 U.S. 932 (1989)). Additionally, the Government need not show exclusive

possession; joint possession suffices. Id. Thomas possessed keys that operated the

front door locks to 6142 Olive Street. That evidence alone supports an inference of

Thomas's constructive possession of the contents of the house, including over 50

grams of crack cocaine. The record similarly contained sufficient evidence of an

intent to distribute. Police seized 55.61 grams of cocaine in the April 2 search. Expert

testimony established that 55.61 grams of crack cocaine is consistent with distribution,

not personal use. See United States v. Bell, 477 F.3d 607, 613 (8th Cir. 2007)

(considering expert testimony that seven grams of crack cocaine evidenced intent to

distribute). "A large quantity of drugs, standing alone, is sufficient evidence of . . .

intent to distribute." United States v. Serrano-Lopez, 366 F.3d 628, 635 (8th Cir.

2004). Police also discovered a digital scale with white residue in the house and over

$1000 cash on Thomas's person. See United States v. Schubel, 912 F.2d 952, 956 (8th

Cir. 1990) ("The presence of equipment to weigh and measure narcotics . . . and large

sums of cash are common indicia of drug trafficking and are . . . circumstantial

evidence of intent to distribute."). The evidence was sufficient to support a guilty

verdict on count two.
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Thomas's argument that insufficient evidence exists to support the guilty verdict

on the first count suffers from similar infirmities. He argues a third person could have

been present at 6142 Olive Street when the informant visited to purchase drugs. His

argument must be rejected "because the jury's verdict must be upheld if any rational

interpretation of the evidence, regardless of countervailing evidence, would allow a

reasonable-minded jury to conclude guilt beyond a reasonable doubt." United States

v. Jimenez-Serrato, 336 F.3d 713, 715 (8th Cir. 2003). If the evidence adduced at trial

rationally supports conflicting hypotheses, we refuse to disturb the conviction. Id.

When this court reviews the sufficiency of the evidence to support a jury verdict, it

treats circumstantial evidence no differently than direct evidence. United States v.

Lam, 338 F.3d 868, 871 (8th Cir. 2003).

The Government proffered significant circumstantial evidence in this case.

Detective Ortiz watched the informant dial Thomas's phone number and listened to

what he believed was the scheduling of a drug transaction. Thomas greeted the

informant at the door of the house where the informant bought crack cocaine. The

detective heard only two voices during the transaction. Shortly thereafter, Thomas left

the house driving a 1995 Jeep and returned, using keys to operate the front door. A

few hours later—after the informant dialed Thomas's phone number and scheduled a

second transaction—police searched the same house and discovered distribution

quantities of crack cocaine near other incidents of drug distribution. At the same time,

Thomas was found with keys to the house, keys to the 1995 Jeep, and a large quantity

of cash—including all five prerecorded twenty dollar bills. More crack cocaine was

discovered in the Jeep, along with documents bearing Thomas's name and phone

number. Finally, there was evidence Thomas was arrested on a subsequent occasion

under circumstances evidencing an intent to distribute crack cocaine. Even if the

evidence allowed another rational explanation, our review is strictly circumscribed by

a necessary respect for the jury's verdict. One rational interpretation of the evidence

is that the informant called Thomas's phone; Thomas personally answered his phone

and scheduled a drug buy; Thomas welcomed the informant into the house and sold
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him crack cocaine in exchange for the prerecorded buy money later found on

Thomas's person. Because the evidence rationally supports an inference that Thomas

sold crack cocaine to the confidential informant in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(C), we will not and cannot disturb the jury's verdict. See Jimenez-Serrato,

336 F.3d at 715.

IV.

Accordingly, the judgment of the district court is affirmed.

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