1 The Honorable Greg Kays, United Stat es District Judge for the Western District of Missouri. 

## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

________________ No. 08-3946

________________ 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]

________________ Submitted: September 21, 2009 Filed: January 29, 2010

________________ Before MURPHY, HANSEN, and BYE, Circuit Judges.

________________ HANSEN, Circuit Judge.

Dwight A. Thomas appeals a judgment en tered 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's 1 decision to admit evidence surroundi ng a subsequent arrest, as well as the sufficiency of the ev idence adduced at trial to convict him. We affirm.-2- 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 Kans as City. On April 2, Detective Ortiz met with the confiden tial informant to observe the informant arrange to purchase crack cocaine from a suspected drug dealer. Detective Ortiz watched the informant dial phone numbe r 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 in formant to purchase the drugs from the suspect. The detective equipped the inform ant with a transmitting device. Detective Ortiz searched the informant for drugs or weapons. Finding none, he provided the informant with five twenty dollar b ills, 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 de tective 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 Thom as, 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.-3- Detective Ortiz observed the informant exit 6142 Olive Street and walk directly to the detective's car. In the car, the informant gave De tective Ortiz approximately an eighth of an ounce of crack cocaine. The de tective again searchedthe informant and found the informant no longer possessed the prerecorded "buy money." Soon thereafter, Thomas exited the house and droveoff in a green 1995 Jeep that had been parked in front of 6142 Olive Street duri ng 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, Detec tive Ortiz departed to obtain a warrant to search the Olive Street residence. Af ter he obtained the sear ch 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, offi cers secured the perimeter of 6142 Olive Street in preparation for executing the s earch warrant. Detective Ortiz observed Thomas standing on the front por ch. 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 c ontacting Thomas, police executed the search warrant. Both individuals were secured, and Thomas accurately identified himself to police. A search of Thomas's pers on 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 transacti on 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-4- 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 provide d to phone number xxx-xxx-9980. One of the bills was dated March 26, 2004. The ke ys found on Thomas's person operated the locks on the doors to 6142 Olive Street.

Officers also searched the green 1995 J eep. They found another cell phone billand Western Union receipts, both in Thomas's name and both listing the xxx-xxx9980 phone number. Thomas admitted th at 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 districtcourt held a pretrial hearing regarding this evidence, where Thomas challenged its ad missibility under Federal Rule of Evidence 404(b). Over Thomas's objection, evid ence tending to prove the following was admitted:

In early January 2008, a confidential in formant contacted Kansas City Police Department Detective Don Stanze regard ing 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 commen ced 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 inve stigation of Thomas and consequently recognized his name. On numerous occas ions, Detective Stanze observed Thomas driving the red SUV to and from 5216 WabashAvenue. On one occasion, Detective Stanze witnessed the red SUV depart fro m 5216 Wabash Avenue, and he attempted to follow it. When the detective lost sightof the vehicle, he requested that other-5- officers assist him to track the vehicle. A fellow officer locat ed the red SUV at 4930 Wabash Avenue.

On February 19, 2008, Detective Stanze contacted the confidential informant to arrange a controlled buy of crack cocai ne 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 co caine. 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, Detectiv e Stanze advised the informant he would follow him to 4930 Wabash Avenue in approximately one hour.

Detective Stanze met the info rmant 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 automobile s 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 Avenueat 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 s earch warrants for two residences: 4930 Wabash Avenue and 5216 Wabash Avenue.

Detective Stanze employed the confiden tial 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 sameday, the detective again met with the informant, searched him, equipped him w ith a transmitting device, and provided him-6- 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 recogni zed the informant's voice as well as the same voice from the previous phone calls a nd previous transaction. After the informant exited 4930 Wabash Avenue, Detective Stanze followed him to a covert location. There, the informant ga ve Detective Stanze crack cocaine.

After debriefing the informant, Det ective Stanze returned to 4930 Wabash Avenue, where a police tactical unit wa s executing the search warrant. Police detained five people in the residence, including Thomas. Detective Stanze recognized Thomas's voice from monitoring the inform ant'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 co caine on the kitchen counter, digital scales of the type used to weigh drugs, and tw o 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 di aled 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 base ment 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 ju ry. 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 Fede ral Rule of Evidence 404(b); and (2) there was insufficient evidence to support the jury's verdict.-7- II.

The district court enjoys broad discre tion 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 su ch evidence "for other purposes, such as proof of motive, opportunity, intent, prepar ation, 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 pr eponderance of the evidence; and (4) if the potential prejudice does not substantially outwe igh 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 argue s 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 shoul der the burden of introducing proof beyond-8- 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 rele vant 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. at11.) 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 distribu tion offense); United States v. Timlick , 481 F.3d 1080, 1082 (8th Cir. 2007) (e lements of possession offense). This is not the first time we have held knowledge and intent ar e material issues in cases involving distribution of narcotics in violation of 21 U.S.C. § 841(a)(1). SeeJohnson , 934 F.2d at 939. Evidence of other acts is generally admissible to es tablish those elements. Id. Additionally, "'the mere subsequency of an actto 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 abso lute rule regarding the number of years that can separate o ffenses" 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, thes e are only factors" useful for evaluating "[t]he ultimate question . . . whether the ev idence is admissible to prove any relevant-9- issue other than the character of the de fendant 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 n early 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 eviden ce 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 num ber and arrange a drug tran saction; police accompanied or followed the informant to a residence controlled by Thomas, where his automobile was parked. Subsequent to the drug tr ansaction 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 associatedwith drug distribution, and personal documents implicating Thomas.

We have approved the admission of evid ence of similar crimes that occurred a decade before the char ged 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 betweenprior and subsequent acts that would support different analyses, Anifowoshe , 307 F.3d at 646-47, nor have we applied different analyses to evaluatethe admission of prior and subsequent acts, see, e.g. , United States v. DeAngelo , 13 F.3d 1228, 1231 (8th Cir.) (applying well--10- established four-factor test to determine admissibility of subsequent act evidence), cert. denied , 512 U.S. 1224 (1994). Considering th e similarities between the crimes charged and the subsequent-acts evidence, we cannot say the mere passage of four years' time renders the evidence irrele vant to show knowledge or intent.
Finally, Thomas argues the probative valu e of the subsequent-acts evidence is substantially outweighed by th e 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 th at evidence of the 2008 investigation could be used only to establish Thomas's intent, knowledge, or lack of mistake. Such limiting instructions mini mize the danger of unfair prejudice. United States v. Hessman , 493 F.3d 977, 983 (8th Cir. 2007), cert. denied128 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.'" SeeThomas , 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 insuffi cient 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 prerecord ed buy money to purchase crack cocaine.-11- As to the second count—possession with intent to distribute 50 grams or more of crack cocaine—Thomas's argument does nothi ng to address binding circuit precedent that dictates an affirmance of the jury's verdict. Count tw o required proof beyond a reasonable doubt that Thomas (1) knowingl y possessed 50 grams or more of crack cocaine, and (2) intended to distribute th e 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 c onstructive possession. Timlick , 481 F.3d at 1082. "We have joined 'every other circ uit to address this issue [and have held] that the holder of the key, be it to the dwelling, vehicle ormotel 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 (8th Cir.) (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. Thatevidence 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 gram s of cocaine in the Ap ril 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 scal e with white residue in the house and over $1000 cash on Thomas's person. SeeUnited States v. Schubel , 912 F.2d 952, 956 (8th Cir. 1990) ("The presence of equipment to we igh and measure narco tics . . . and large sums of cash are common indicia of drug trafficking and are . . . circumstantial evidence of intent to distribute."). Th e evidence was sufficient to support a guilty verdict on count two.-12- Thomas's argument that insu fficient 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 th e jury's verdict must be upheld if anyrational interpretation of the evidence, regardless of countervailing evidence, would allow a reasonable-minded jury to conclude gu ilt 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 di sturb 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 di al 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 tran saction. Shortly th ereafter, Thomas left the house driving a 1995 Jeep and returned, us ing keys to operate the front door. A few hours later—after the informant dialedThomas's phone number and scheduled a second transaction—police searched the same house and discovered distribution quantities of crack cocaine near other incident s 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 twen ty dollar bills. More crack cocaine was discovered in the Jeep, along with docum ents 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; T homas welcomed the informant into the house and sold-13- him crack cocaine in exchange for the prerecorded buy money later found on Thomas's person. Because the evidence rati onally supports an inference that Thomas sold crack cocaine to the confidential info rmant 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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