U.S. v. Shoffner, 94-2585

• Decision Date: 21 December 1995
• Docket Number: No. 94-2585,94-2585
• Citation: 71 F.3d 1429
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James P. SHOFFNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1429

71 F.3d 1429

UNITED STATES of America, Plaintiff-Appellee, v. James P. SHOFFNER, Defendant-Appellant.

No. 94-2585.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 13, 1995.

Decided Dec. 21, 1995.

Monica Allen, St. Louis, MO, argued, for appellant.

Larry Howard Ferrell, Cape Girardeau, argued, for appellee.

Before LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

HANSEN, Circuit Judge.

James P. Shoffner appeals his conviction for conspiracy to distribute marijuana. Shoffner contends that the district court ¹ erred at trial by admitting evidence of Shoffner's prior state court conviction for dealing in marijuana and by denying his motions for judgment of acquittal. Finding no error, we affirm.

I. BACKGROUND.

In a superseding indictment, the government charged James P. Shoffner and eight others with conspiring to distribute more than 1,000 kilograms of marijuana in violation of 21 U.S.C. Sec. 846, beginning in or around February 1993 and lasting through April 1993. During the 12-day trial, the government presented extensive evidence establishing the existence of a conspiracy, which may have originated as early as 1986, and its participants, 12 of whom were indicted in the Eastern District of Missouri. For purposes of this appeal, we recite only the evidence relevant to Shoffner's conviction.

During the life of the conspiracy, its participants distributed over 25,000 pounds of marijuana, which had been smuggled into this country from Mexico and transported in loads to various warehouse locations throughout the United States. From the warehouses, the marijuana was distributed to wholesale marijuana dealers who would travel from throughout the country to these warehouse locations to purchase the marijuana. The conspiracy was detected by law enforcement officials on March 9, 1993, when various conspirators began to gather at Cape Girardeau, Missouri, to coordinate the distribution of marijuana from a warehouse in southern Illinois.

At trial, Lionel Garcia, a resident of Texas and member of the conspiracy, testified against Shoffner. Garcia testified that he made plans to arrange a purchase of 500 pounds of marijuana from the Illinois warehouse for Daniel Clark, an acquaintance and resident of Kentucky. Garcia arranged the transaction through Jose Trevino, a resident of Brownsville, Texas, who was involved in coordinating the distribution of marijuana from the warehouses. Garcia and Trevino arranged to meet on March 10, 1993, at the Victoria Inn, a hotel at Cape Girardeau, Missouri, which is across the Mississippi River from the Illinois warehouse.

Garcia met Clark and Joseph L. Hagen, Jr., at the Louisville, Kentucky, airport on March 10, 1993. The same day, they drove together in a van to Cape Girardeau. Clark informed Garcia that another group of "his people" would be coming in a van driven by Joseph Hagen, Sr., to help transport the marijuana back to Kentucky.

A few hours after the Garcia vanload arrived at Cape Girardeau, Joseph Hagen, Sr., and James Shoffner arrived in the second van and came to Garcia's hotel room. A conversation took place among all those in the room, including Shoffner, concerning the transportation of the marijuana. Garcia testified that he would never discuss the location or transportation of a drug transaction if anyone not a party to the transaction was present. Garcia testified that at this meeting Shoffner was asked to, and did, approve a sample of the marijuana to be purchased. After the meeting, Garcia, Clark, the Hagens, Shoffner, and Michael Hartwick (the person who had produced the marijuana samples for approval) began the short trek to the Illinois warehouse to load the marijuana.

Meanwhile, local surveillance had begun earlier during the day on March 10, 1993. In the early morning hours of March 11, 1993, law enforcement officials stopped the three vehicles en route to the warehouse. Michael Hartwick was driving the lead vehicle, followed by a van driven by Clark and a pickup driven by Shoffner. The police detained them all and transported them to the police station for questioning. Shoffner was questioned and later released. Hartwick agreed to cooperate with authorities and disclosed the location of the Illinois warehouse, where over 1,000 pounds of marijuana was stored. Shoffner was arrested after further investigation.

From the beginning of the trial, Shoffner's defense was that his mere presence with the conspirators was not sufficient evidence to consider him a co-conspirator. To rebut this defense and to show motive, intent, plan, knowledge, and absence of mistake, the government offered evidence via a 1988 Indiana conviction that Shoffner had previously dealt in large amounts of marijuana. The district court admitted this evidence over Shoffner's objections.

At the close of the government's case and again at the close of trial, Shoffner moved for a judgment of acquittal. The district court denied the motion at each juncture. The case was submitted to the jury, which rendered a verdict of guilty against Shoffner. The district court sentenced Shoffner to 120 months of imprisonment to be followed by 8 years of supervised release. Shoffner appeals his conviction but does not challenge his sentence.

II. DISCUSSION.

A. Rule 404(b) Evidence.

Shoffner first contends that the district court erred by admitting the detailed testimony concerning the nature of his prior state court drug conviction to prove motive, intent, preparation, plan, knowledge, identity, or absence of mistake. See Fed.R.Evid. 404(b). At trial, the district court admitted not only the fact that Shoffner had a 1988 Indiana state court conviction for dealing in marijuana, but also admitted details of that conviction, including the following: Shoffner had been involved in a large-scale marijuana cultivation operation in 1987; upon its discovery, Indiana authorities executed a search warrant and found additional marijuana plants drying at the site; additionally, the authorities found three loaded weapons at the site, which were not charged against Shoffner.

Rule 404(b) provides that a district court may admit "[e]vidence of other crimes, wrongs or acts" for the purpose of proving "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident;" but not for the purpose of proving the character of the defendant to show that he acted in conformity with that character. Fed.R.Evid. 404(b). See also, United States v. Jones, 990 F.2d 1047, 1050 (8th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 699, 126 L.Ed.2d 666 (1994). Rule 404(b) is a rule of inclusion, prohibiting only evidence that tends solely to prove the defendant's criminal disposition. United States v. Yellow, 18 F.3d 1438, 1441 (8th Cir.1994). To be admissible as Rule 404(b) evidence, the evidence must be "(1) relevant to a material issue; (2) proved by a preponderance of the evidence; (3) higher in probative value than in prejudicial effect; and (4) similar in kind and close in time to the crime charged." Jones, 990 F.2d at 1050 (quotations omitted). A district court has "broad discretion" when deciding whether to admit evidence of other crimes or bad acts. United States v. Mihm, 13 F.3d 1200, 1204 (8th Cir.1994). We "reverse only when it is clear that the evidence has no bearing on the case." United States v. Williams, 895 F.2d 1202, 1205 (8th Cir.1990).

Shoffner contends that the district court abused its discretion because the evidence was not similar in kind to the crime charged. We disagree. The Rule 404(b) "other crimes" evidence in this case is similar enough to be probative of Shoffner's intent. "When admitted for the purpose of showing intent, the prior acts need not be duplicates, but must be sufficiently similar to support an inference of criminal intent." United States v. Burkett, 821 F.2d 1306, 1309 (8th Cir.1987). Although the details of the prior crime are not exact duplicates of this case, we believe that the evidence of Shoffner's prior involvement in large-scale marijuana dealing is sufficiently similar to the present charge of conspiracy to distribute over 1,000 kilograms of marijuana to support an inference of criminal intent. See generally, United States v. Johnson, 977 F.2d 457, 458 (8th Cir.1992) (evidence of prior possession with intent to deliver marijuana was sufficiently similar to crime of possession with intent to distribute cocaine); United States v. Wint, 974 F.2d 961, 967 (8th Cir.1992) (evidence of prior arrest for possession of a distributable amount of crack cocaine was sufficiently similar to conspiracy to distribute cocaine), cert. denied, 506 U.S. 1062, 113 S.Ct. 1001, 122 L.Ed.2d 151 (1993). Shoffner's prior involvement in marijuana dealing also tends to prove motive, knowledge, and absence of mistake to rebut Shoffner's claim that he was merely present and unaware of the conspiracy. See United States v. Miller, 974 F.2d 953, 960 (8th Cir.1992) (prior drug involvement may be relevant to prove motive to join a conspiracy); Williams, 895 F.2d at 1205 (evidence of prior drug dealing relevant to both knowledge and absence of mistake).

Shoffner also argues that because the conduct of his prior crime occurred six years earlier, it is not reasonably close in time to the crime charged, as required for the admission of Rule 404(b) evidence. Whether the evidence is close in time is one factor indicating the relevancy of the evidence, but "there is no specific number of years beyond which prior bad acts are no longer relevant to the issue of intent." Burkett, 821 F.2d at 1309-10. The closer in time to the crime charged, the more likely the evidence is to be admissible; but we have approved the admission of other crimes evidence for acts committed up to 13 years before the crime charged. See United States v. Engleman, 648 F.2d 473, 479 (8th Cir.1981). To determine if evidence is too remote, "the court applies a reasonableness...