                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2858
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Southern District of Iowa.
Charles Irvin Trogdon,                  *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: March 13, 2009
                                Filed: August 6, 2009
                                 ___________

Before WOLLMAN, RILEY, and COLLOTON, Circuit Judges.
                           ___________

COLLOTON, Circuit Judge.

       Charles Irvin Trogdon was convicted by a jury of conspiracy to distribute 1000
kilograms or more of marijuana, in violation of 21 U.S.C. §§ 846 and
841(b)(1)(A)(vii). The district court1 sentenced him to the mandatory minimum term
of 240 months’ imprisonment. Trogdon appeals his conviction, contending that the
district court abused its discretion by admitting two partially inaudible audio
recordings of conversations between Trogdon and a confidential informant, and by


      1
        The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa, who presided at trial and sentencing.
admitting evidence of his prior felony drug conviction under Federal Rule of Evidence
404(b). Trogdon also challenges the sufficiency of the evidence to sustain his
conviction. We affirm.

                                          I.

       We recite the evidence presented at trial in the light most favorable to the
verdict. United States v. Tipton, 518 F.3d 591, 594 (8th Cir. 2008). From the fall of
2005 to February 2007, Trogdon participated in a conspiracy to distribute marijuana
in central Iowa. The conspiracy involved several individuals, including Charles
Elwell and Tim Chapman. Trogdon sent drivers to Arizona to purchase marijuana and
bring it back to Iowa for distribution. Once the marijuana arrived in Iowa, Elwell,
Trogdon, and others unloaded and repackaged it into one-pound bags at Elwell’s
house. Trogdon then paid Elwell and others to sell it, with the proceeds from those
sales eventually returning to Trogdon. Elwell’s involvement lasted for about eight
months, during which at least 2000 pounds of marijuana were brought to his house for
repackaging and distribution. Elwell was arrested in July 2006, after law enforcement
officers searched his residence and discovered marijuana, drug notes, bulk packaging
material, and multiple scales. Elwell ceased participation in the conspiracy and began
cooperating with law enforcement.

       Around the time of Elwell’s arrest, Tim Chapman became involved in the
conspiracy. The mechanics of the scheme remained the same, except that the
repackaging took place at the residence of Kim Fisher, Chapman’s sister. Marijuana
shipments arrived every three to four weeks and totaled at least 1000 pounds before
February 2007. At that time, officers searched Fisher’s home, seizing thirteen pounds
of marijuana, duffel bags, packaging material, and multiple scales. Chapman was
arrested soon afterward and immediately agreed to cooperate, admitting that he had
distributed marijuana with Trogdon for the past six to eight months. As part of his
cooperation, Chapman agreed to wear a “wire,” or recording device, during two

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meetings with Trogdon. The quality of the recordings turned out to be poor, however,
because the wire was taped to Chapman’s leg, and Chapman’s movement during the
encounter interfered with the recording process.

       On February 21, 2007, Trogdon was arrested and charged with conspiracy to
distribute 1000 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 846 and
841(b)(1)(A)(vii). After officers informed Trogdon of the charge against him,
Trogdon told officers that “he had not worked up to that,” and that he was “just trying
to feed the family.” He also stated that law enforcement should go after
methamphetamine dealers instead, because people who use marijuana simply “go to
the fridge.”

       While in prison awaiting trial, Trogdon admitted to a fellow inmate that he was
involved in distributing marijuana, and that he operated a business as a front to
conceal his drug activities. He also called his wife and made statements to the effect
that he was not going to “tell on” his family or anyone, and that he could no longer
work because his name was out.

       Before trial, the government filed an information pursuant to 21 U.S.C.
§ 851(a), providing notice that Trogdon, if convicted, would be subject to a 240-
month mandatory minimum sentence because of his prior conviction in 1996 for a
felony drug offense. Trogdon filed two motions in limine. The first asked the court
to “direct the Government . . . not to talk about [his] prior criminal history,” but did
not identify any prior offenses. In response, the government gave notice of its intent
to introduce Trogdon’s prior conviction for conspiracy to distribute 1000 kilograms
or more of marijuana, pursuant to Federal Rule of Evidence 404(b). At a conference
just prior to jury selection, the court ruled that the conviction would be admitted.

      Trogdon’s second motion in limine sought to exclude the audio recordings of
the meetings between him and Chapman, on the ground that they were too inaudible

                                          -3-
to be reliable. After listening to the recordings, the district court2 declined to exclude
them in their entirety, concluding that it would reserve a final decision on
admissibility until the parties sought to offer specific portions of them at trial. When
the government eventually moved to introduce the recordings at trial, Trogdon did not
object to their admission. The court received them into evidence, along with a written
transcript prepared by the government of both recordings. Trogdon did not submit a
transcript of his own.

       After a trial that lasted two and a half days, the jury returned a verdict of guilty.
In interrogatory number one, the jury found that the quantity of marijuana involved
in the conspiracy was 1000 kilograms or more. Trogdon appeals the conviction.

                                            II.

       We first address Trogdon’s contention that the district court erred in admitting
the two partially inaudible recordings of the meetings between Trogdon and Chapman.
Trogdon argues that the quality of the recordings is so poor as to render them entirely
unreliable and untrustworthy. He notes that even the government’s own witness,
Special Agent Fedderson, admitted at trial that the recordings were “pretty distorted
or fuzzy.”

       Because Trogdon did not object to the admission of the audio tapes at trial, we
review his claim for plain error. “The decision to admit partially inaudible audio tapes
is a matter within the sound discretion of the district court.” United States v. Huff, 959
F.2d 731, 737 (8th Cir. 1992). “[T]he district court should assess whether the
unintelligible portions of the tape are so substantial, in view of the purpose for which
the tapes are offered, as to render the recording as a whole untrustworthy.” Id.


       2
       The Honorable Robert W. Pratt, Chief Judge, United States District Judge for
the Southern District of Iowa, who entered this pretrial ruling.

                                            -4-
(internal quotation omitted). In making this determination, the district court should
consider whether the tapes are “audible enough to provide the jury with the ‘gist’ of
the conversations,” as well as whether the defendant was given an “opportunity to
offer his version of the inaudible portions so as to clear up whatever ambiguities the
tapes might have raised.” United States v. Bell, 651 F.2d 1255, 1259 (8th Cir. 1981);
see Huff, 959 F.2d at 737-78.

       We are satisfied that the district court did not commit plain error by admitting
the recordings into evidence. In spite of the admittedly poor quality of the recordings,
the conversations in the tapes were “audible enough to provide the jury with the ‘gist’
of the conversations.” Bell, 651 F.2d at 1259. During one meeting, for example,
Trogdon and Chapman can be heard discussing who may have leaked information to
the police, whether either of them had reason to panic, and whether Trogdon’s nephew
was trustworthy. During a different meeting, Trogdon can be heard making a variety
of probative statements, including that he believed he could trust his brother, that
“nobody w[ould] know anything,” that he was “just trying to work to get the deal,”
and that Chapman should “keep [his] eyes wide open” and “look around.” Given
these and other audible statements, we conclude that the inaudible portions are not so
pervasive as to render the recordings untrustworthy as a whole. Accordingly, the
district court did not plainly err in admitting the recordings into evidence.

                                          III.

      Trogdon also claims that the district court erred in admitting his 1996
conviction for conspiracy to distribute 1000 kilograms or more of marijuana under
Rule 404(b). The government sought to introduce the conviction as evidence of
Trogdon’s knowledge or intent, and the court allowed it. We review the district
court’s decision to admit Trogdon’s prior conviction for abuse of discretion. See
United States v. Gaddy, 532 F.3d 783, 789 (8th Cir. 2008).



                                          -5-
       Rule 404(b) prohibits the admission of a defendant’s prior bad acts for use as
character or propensity evidence, but permits admission of such evidence for other
purposes, such as proving intent or knowledge. To be admissible under this rule, the
prior conviction “must be (1) relevant to a material issue; (2) similar in kind and not
overly remote in time to the crime charged; (3) supported by sufficient evidence; and
(4) higher in probative value than prejudicial effect.” United States v. Williams, 534
F.3d 980, 984 (8th Cir. 2008) (internal quotation omitted). Rule 404(b) is a rule of
inclusion, and we “will 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.” United States v. Foster, 344 F.3d 799, 801 (8th Cir. 2003) (internal quotation
omitted).

       We conclude that the district court did not abuse its discretion in admitting
Trogdon’s prior conviction. The conviction was relevant to material issues, namely,
Trogdon’s intent and knowledge. Trogdon argues that the conviction was not
relevant, because he challenged only the quantity of marijuana involved in the
conspiracy and did not pursue a general denial defense that placed knowledge and
intent at issue. We disagree. Even if Trogdon had gone so far as to stipulate to the
requisite knowledge and intent, the Supreme Court’s decision in Old Chief v. United
States, 519 U.S. 172 (1997), “eliminates the possibility that a defendant can escape
the introduction of past crimes under Rule 404(b) by stipulating to the element of the
crime at issue.” United States v. Hill, 249 F.3d 707, 712 (8th Cir. 2001). In any
event, Trogdon did challenge the government’s proof on the elements of knowledge
and intent. He argued that no conspiracy existed, and that the government had proved
only a buyer-seller relationship. He also urged the jury to “take a hard look at” his
“mere presence” during the incriminating episodes proved by the government. A
“mere presence” defense, by definition, challenges the prosecution’s proof on the
mental element of the charged offense, and places the defendant’s knowledge and
intent at issue. See Foster, 344 F.3d at 801. Trogdon’s prior conviction was therefore
relevant to material issues in the case.

                                         -6-
       The prior conviction is also evidence of conduct that is “similar in kind” to the
crime charged. Indeed, the prior conduct was identical to the charged conduct, and
although it was eleven years old at the time of Trogdon’s trial, it was not so remote
in time as to be inadmissible under our cases. See Gaddy, 532 F.3d at 789. There
clearly was sufficient evidence that Trogdon sustained the prior conviction, and any
danger of unfair prejudice from admitting the prior conviction does not outweigh its
probative value. Only the fact of conviction, date, and drug type were introduced by
the government, without any details of the crime, and the court gave a limiting
instruction advising the jury that it could consider the conviction only to decide the
issues of Trogdon’s intent or knowledge. Trogdon’s prior conviction satisfies the test
for admissibility under Rule 404(b), and we conclude that the district did not abuse
its discretion in admitting the evidence.

                                          IV.

       Trogdon’s final argument is that the evidence was insufficient to sustain his
conviction. We review the sufficiency of the evidence de novo, viewing the evidence
in the light most favorable to the verdict. We will reverse a conviction only if no
reasonable jury could have found Trogdon guilty beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319 (1979); United States v. Santana, 524 F.3d 851, 853
(8th Cir. 2008).

      Trogdon’s sole contention with regard to the sufficiency of the evidence is that
the government failed to prove the required quantity of marijuana under 21 U.S.C.
§ 841(b)(1)(A)(vii), namely, 1000 kilograms (or roughly 2200 pounds) or more.
According to Trogdon, the government’s two key witnesses, Elwell and Chapman,
gave imprecise and inconsistent testimony regarding specific drug weights and the
timing of certain events. Because of these and other inconsistencies, he argues, and
because Elwell and Trogdon had reason to exaggerate Trogdon’s role in the
conspiracy, no reasonable jury could have found Trogdon guilty.

                                          -7-
       We conclude that the evidence was sufficient to support the jury’s drug-quantity
determination. Elwell testified that for about eight months until his arrest in July
2006, he recalled receiving a total of “a couple thousand” pounds of marijuana.
Chapman testified that from about mid-2006 to the search of Fisher’s home in
February 2007, he remembered handling shipments totaling about 1000 pounds, which
he described as a conservative estimate. Other witnesses corroborated the quantity of
marijuana involved. Kim Fisher, for example, testified that Chapman brought about
ten shipments of marijuana to her house, and that each shipment ranged from 60 to
200 pounds. Timothy Phillips also testified that he witnessed marijuana shipments
arrive at Fisher’s residence once or twice a month for about eight months, and that
each one weighed roughly 100 pounds.

       This evidence amply supports the jury’s conclusion that Trogdon conspired to
distribute 1000 kilograms or more of marijuana. It is for the jury to resolve conflicts
in testimony and make credibility determinations, and those determinations are
“virtually unreviewable on appeal.” United States v. Lohnes, 554 F.3d 1166, 1169
(8th Cir. 2009) (internal quotation omitted).

                                   *      *       *

      For the foregoing reasons, the judgment of the district court is affirmed.
                      ______________________________




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