U.S. v. Maichle, 88-1428

• Decision Date: 01 November 1988
• Docket Number: No. 88-1428,88-1428
• Citation: 861 F.2d 178
• Parties: 26 Fed. R. Evid. Serv. 1297 UNITED STATES of America, Appellee, v. Bruce Timothy MAICHLE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 178

861 F.2d 178

26 Fed. R. Evid. Serv. 1297

UNITED STATES of America, Appellee, v. Bruce Timothy MAICHLE, Appellant.

No. 88-1428.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 20, 1988.

Decided Nov. 1, 1988.

Bruce W. Simon, Kansas City, Mo. (Appointed), for appellant.

Linda L. Parker, Asst. U.S. Atty., Kansas City, Mo., for appellee.

Before JOHN R. GIBSON, WOLLMAN and BEAM, Circuit Judges.

WOLLMAN, Circuit Judge.

Bruce Timothy Maichle was convicted of conspiracy to distribute cocaine and possession with intent to distribute cocaine, in violation of 21 U.S.C. Secs. 841(a)(1) and 846, and sentenced to a prison term of twelve years and a special assessment of $50. For reversal, Maichle argues that the district court ¹ erred in (1) admitting evidence that he negotiated a deal to obtain cocaine and sold marijuana prior to the date of the crimes charged and (2) ruling that, if Maichle testified, the court would permit the government to impeach Maichle with a March 22, 1976 conviction for possession of methamphetamine. We find that the district court did not abuse its discretion in admitting the prior acts testimony and ruling that it would permit the government to impeach Maichle with a prior conviction. Accordingly, we affirm.

On May 17, 1987, the Drug Enforcement Administration arrested Maichle after he picked up a package containing 995 grams of seventy-two percent pure cocaine at the Kansas City International Airport. Maichle claimed that one Kent Steele was paying him $2,000 to deliver the package to the Shawnee Golf Course. Maichle agreed to deliver the package in accordance with the alleged agreement and to be accompanied by law enforcement officers as he did so. After Maichle delivered the package, however, no one retrieved it. The Drug Enforcement Administration later discovered that Kent Steele had not been in the Kansas City area since the fall of 1986.

At trial, Nan Wing, a former employee at Maichle's two delicatessens, testified to Maichle's prior drug-related activities. She testified that during her employment with Maichle she heard him make a deal to obtain crack cocaine. She also testified that she heard Maichle tell his wife, Patty, to go home to get marijuana and to get money to pay for marijuana. Wing accompanied Patty to the Maichle home on several occasions, where she observed Patty weigh and bag marijuana. Upon returning to the delicatessen, Patty, Maichle, and the person waiting for the marijuana would go into the delicatessen office. Wing testified that she observed Patty leave the office, leaving Maichle and the buyer alone.

The district court ruled prior to trial that if Maichle testified, it would allow impeachment regarding a 1976 guilty plea to possession of methamphetamine. Maichle then elected not to testify.

I.

Maichle contends that Nan Wing's testimony regarding his prior acts should have been excluded inasmuch as it was irrelevant and more prejudicial than probative. The government responds that Wing's testimony was admissible to prove Maichle's intent.

We will not disturb a district court's rulings admitting evidence unless the appellant clearly shows that the evidence had no bearing on any issue involved. United States v. Galyen, 798 F.2d 331, 332 (8th Cir.1986). Maichle has failed to make such a showing.

Federal Rule of Evidence 404(b) provides that evidence of other crimes, wrongs, or acts may be admissible for purposes other than to prove character, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, or accident." Evidence of other acts is admissible to prove intent "if there is a material issue as to intent, and if the proffered evidence is relevant to that issue, is clear and convincing, ² relates to a wrongdoing similar in kind and reasonably close in time to the charge at trial, and is more probative than prejudicial." United States v. Burkett, 821 F.2d 1306, 1309 (8th Cir.1987).

We conclude that Wing's testimony was admissible. First, intent is an essential element of conspiracy to distribute a controlled substance and possession with intent to distribute, see 21 U.S.C. Secs. 841(a)(1), 846, and therefore was a material issue in this case. Second, testimony of prior drug transactions is admissible to prove that a defendant acted knowingly and intentionally. Cf. United States v. Nichols, 808 F.2d 660, 663 (8th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 1976, 95 L.Ed.2d 816 (1987). Third, Wing testified to drug-related activities that were similar in kind to the activities Maichle was charged with committing. Fourth, Maichle's prior activities were reasonably close in time (two years) to the charged offenses. See Burkett, 821 F.2d at 1309-10 (seven-year gap between offenses); United States v. Moeckly, 769 F.2d 453, 464 (8th Cir.1985) (four-year gap between offenses), cert. denied, 475 U.S. 1015, 106 S.Ct. 1196, 89 L.Ed.2d 311 (1986). Last, although Wing's testimony does not favor Maichle, it does not rise to the level of being so prejudicial as to outweigh its probative character.

Whether Maichle had intent to distribute cocaine was a material issue at trial. Maichle disavowed any intention of keeping the package of cocaine, relating instead his purpose of merely delivering the package to a third party. Wing's testimony tended to establish that, just as Maichle intended to distribute marijuana...