                                                                           F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            FEB 27 1997
                                 TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk


UNITED STATES OF AMERICA,

              Plaintiff-Appellee,
                                                          No. 95-3387
v.                                                     (Dist. of Kansas)
                                                    (D.C. No. 95-CR-10033)
ANTHONY TAYLOR,

              Defendant-Appellant.




                           ORDER AND JUDGMENT *


Before MURPHY, RONEY **, and BARRETT, Circuit Judges.


      Anthony Taylor appeals his conviction on a one-count charge for

possession with intent to distribute or, in the alternative, for aiding and abetting

in the distribution of crack cocaine. Taylor’s appeal rests on two grounds: 1) the

district court erred in giving an aiding and abetting jury instruction when the state



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

       Honorable Paul H. Roney, Senior Circuit Judge for the 11th Circuit Court
      **

of Appeals, sitting by designation.
presented no evidence of that charge; and 2) the admission of his prior

convictions under Fed. R. Evid. 404(b) and 403 was an abuse of discretion. This

court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms.



                                  BACKGROUND

      On the evening of February 23, 1995, two Wichita police officers observed

a maroon station wagon driven by a person the officers suspected had outstanding

arrest warrants. The officers checked the license plates and found they were

registered to another vehicle. The officers were called to respond to a different

matter but again observed the maroon vehicle later that evening. After following

for a short time, the officers stopped the vehicle, approached Taylor, the driver,

and asked for his driver’s license. Taylor did not have a valid driver’s license and

explained that the license plates on the car belonged to another vehicle which he

owned. Taylor also explained that he had purchased the maroon station wagon

about four weeks earlier.

      With Taylor’s consent, the officers searched Taylor and his car. In Taylor’s

front pants pocket, they found approximately $800 in bills of small denomination.

Taylor indicated that he made the money from selling cars or repairing cars. The




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officers also found a pager in his coat pocket and food stamps 1 in his rear pants

pocket. Because the officers’ view of the back of the vehicle was obstructed by a

large stereo system, they asked if Taylor would consent to a search of his car by a

drug-sniffing dog. Taylor consented. Based on the dog’s inspection, the officers

pulled up the carpet in the rear of the vehicle and found a compartment which

contained a large shoe box. Inside one of the shoes in the shoe box was a pouch

filled with cocaine base. The pouch also contained more food stamps and razor

blades. The officers then arrested Taylor.

      During the police interview, after waiving his Miranda rights, Taylor stated

he earned the money the officers found in his pocket from working and that he

had the pay stubs to prove it. He also stated that he knew nothing of the cocaine

found in the shoes in the shoe box. He explained that a few days before he had

merely picked up the shoe box from his mother’s garage and placed it in the

backseat of his car. Moreover, he stated that the shoes had been a gift from his

former girlfriend.

      On March 6, 1995, Taylor was charged in a one count indictment with

possession with intent to distribute or, in the alternative, for aiding and abetting

in the distribution of crack cocaine. The aiding and abetting allegation was



      1
       According to one of the government’s witnesses at trial, food stamps are
a common method of payment for narcotics.

                                         -3-
pursuant to 18 U.S.C. § 2(a) which states: “Whoever commits an offense against

the United States or aids, abets, counsels, commands, induces or procures its

commission, is punishable as a principal.” No other parties were charged with

possession or with intent to distribute crack cocaine.

      Taylor filed a motion in limine seeking to exclude his two prior convictions

for possession of cocaine. 2 Specifically, Taylor’s first prior conviction followed

his arrest on January 27, 1992, after police officers purchased cocaine from

Taylor at his residence. Later, the officers obtained a search warrant and found

additional quantities of cocaine in Taylor’s bedroom. The officers also found

approximately $700 and a razor blade in the bedroom. Taylor pleaded guilty to

cocaine possession. Taylor’s second prior conviction followed a July 20, 1992

search of a second residence following a drug complaint. Taylor consented to the

search, and the officers found a small quantity of cocaine, a razor blade, and

$1000 in the vehicle parked next to his house. Taylor again pleaded guilty to

cocaine possession.




      2
         There is some dispute in the record as to whether the prior convictions
were for possession of cocaine or cocaine base. The arresting officers at the prior
convictions referred to the substance found as cocaine base. However, the lab
results referred to the substance found as cocaine. In addition, Taylor pleaded
guilty to possession of cocaine for both arrests. According to the government,
Kansas law does not differentiate between cocaine base and cocaine. The district
court treated the prior convictions as being for cocaine, and we will do likewise.

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      The court held that the prior convictions were admissible as they were

relevant to show Taylor’s knowledge and intent with respect to the present crime

charged and were not too remote in time. The court provided the jury with

limiting instructions three times: when two witnesses testified about Taylor’s

prior convictions and during the final charge.

      Although aiding and abetting was not the government’s focus, it sought an

indictment in the alternative for aiding and abetting because it was unsure of the

defense theory at the time. In fact, the only trial evidence relating to the aiding

and abetting allegation was Taylor’s own evidence, which implied that his

girlfriend or friend may have been the principal and Taylor the aider and abetter.

Taylor was convicted on the one count charged in the indictment.



                                     ANALYSIS

      Taylor first argues the district court erred in submitting the aiding and

abetting instruction to the jury because the government presented no evidence that

Taylor acted in concert with any other party. In United States v. Langston, three

defendants argued the judge had erroneously given jury instructions containing

alternate liability theories of conspiracy or aiding and abetting conspiracy. 970

F.2d 692 (10th Cir. 1992). This court stated:

      The aiding and abetting statute operates not to create a separate
      crime but instead to abolish “the common law distinction between

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      principal and accessory.” . . . “A defendant can be convicted as an
      aider and abettor even though he was indicted as a principal for
      commission of the underlying offense and not as an aider and abettor,
      providing that commission of the underlying offense is also proven.”
      Thus, because the jury was instructed on both theories we should
      affirm the convictions if the government presented sufficient proof of
      either the substantive offense or of aiding and abetting.

Langston, 970 F.2d at 705-06 (emphasis added) (quoting United States v. Smith,

838 F.2d 436, 441 (10th Cir. 1988)). Under the Langston analysis, Taylor’s

conviction should be affirmed because the government presented sufficient proof

of the substantive offense even though it presented no proof of aiding and

abetting. We therefore find no error in the district court’s aiding and abetting

instruction.

      Taylor next argues that under Fed. R. Evid. 404(b) and 403, the district

court should not have admitted Taylor’s two prior convictions for cocaine

possession. The district court’s receipt of evidence under Rule 404(b) is reviewed

for an abuse of discretion. United States v. Hardwell, 80 F.3d 1471, 1488 (10th

Cir. 1996). Because Rule 403 arguments are essentially subsumed in 404(b)

arguments, we address the Rule 403 and 404(b) arguments together. See United

States v. Robinson, 978 F.2d 1554, 1558-59 (10th Cir. 1992).

      Rule 404(b) provides:

      Evidence of other crimes, wrongs, or acts is not admissible to prove
      the character of a person in order to show action in conformity
      therewith. It may, however, be admissible for other purposes, such


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      as proof of motive, opportunity, intent, preparation, plan, knowledge,
      identity, or absence of mistake or accident . . . .

Fed. R. Evid. 404(b).

      In Robinson, this court adopted a five-part test to determine admissibility

under Rule 404(b). 978 F.2d at 1558-59. Robinson states:

      we have long urged trial courts to determine that the proffered
      evidence:
       (1) tends to establish intent, knowledge, motive, identity, or absence
      of mistake or accident;
       (2) is so related to the charged offense that it serves to establish
      intent, knowledge, motive, identity, or absence of mistake or
      accident;
       (3) has real probative value and not just possible worth;
       (4) is close in time to the crime charged; and,
       (5) even if relevant, be excluded if the probative value is
      substantially outweighed by the danger of unfair prejudice.

Id.

      Taylor first argues the evidence of his prior convictions did not meet

elements (1) and (2) of the Robinson test and thus were not relevant to the current

conviction. Taylor notes his two prior cocaine convictions were for mere

possession, not possession with intent to distribute. In addition, he claims the

amounts of cocaine involved in the prior convictions were much smaller than the

amount of cocaine involved in the current conviction.

      We find, however, the district court did not abuse its discretion in holding

that elements (1) and (2) of the Robinson test were met. Taylor’s primary defense

at trial was that he did not knowingly possess the cocaine base which he admits

                                         -7-
the government found in his car. Thus, the elements of Taylor’s knowledge and

intent were placed directly in issue.

      In United States v. Rackstraw, a defendant claimed that “he thought he was

delivering only a car to Denver and that he did not know the cooler contained

crack.” 7 F.3d 1476, 1479 (10th Cir. 1993). This court found the admission of

the defendant’s prior sale of crack to an undercover agent was not an abuse of

discretion because “[t]he government offered the evidence for a proper purpose

because Rule 404(b) allows evidence of other acts for the purpose of intent,

knowledge and lack of mistake.” Id. The court further stated: “We have long

recognized the relevance of prior crimes in the context of narcotics violations

where the uncharged misconduct is close in time and similar in method to the

charged scheme and where knowledge or intent was at issue.” Id.

      In Taylor’s case, we find the district court did not abuse its discretion in

finding the evidence was relevant to show knowledge and intent. The district

court went through each of the elements of the Robinson test and found the prior

convictions relevant to show Taylor’s knowledge that he possessed the cocaine

and that he intended to distribute it. See United States v. Reddeck, 22 F.3d 1504,

1509 (10th Cir. 1994) (holding evidence of prior misconduct admissible where

“trial court conducted several hearings and conferences to clarify the use of the

two pieces of evidence and explicitly found them relevant” under Rule 404(b)).


                                         -8-
      Moreover, Taylor’s prior convictions were similar in method to the

conviction at issue here. In United States v. Gutierrez, this court held that

“evidence of another crime is probative only if the ‘other crime’ is similar to the

crime charged--but the two crimes need not be identical. If the crimes share

elements that possess ‘signature quality,’ evidence of the ‘other crime’ may be

admitted.” 696 F.2d 753, 755 (10th Cir. 1982) (citation omitted); see also United

States v. Abreu, 962 F.2d 1425, 1437 (10th Cir. 1992) (finding district court’s

admission of defendant’s subsequent possession of controlled substance to show

knowledge and intent with respect to current charges was not abuse of discretion).

      In Taylor’s case, the crimes share elements that possess “signature quality.”

All three involved the same drug: cocaine. With each incident, Taylor claimed he

knew nothing about the narcotics found either in his car or the residence where he

was found. In all three instances, the officers found large sums of cash in small

bills on Taylor’s person or in his car. Each time, Taylor claimed he earned the

money buying or selling cars or through his employment with an auto shop, yet no

pay stubs were ever found. Finally, as the district court noted, each instance

occurred in the same general vicinity in Wichita. Thus, we find the district court

did not abuse its discretion in finding that the evidence of Taylor’s prior narcotics

convictions was relevant to show Taylor’s knowledge that he possessed the

cocaine and that he intended to distribute it.


                                          -9-
      Next, Taylor argues the evidence of his prior convictions did not meet

element (4) of the Robinson test because the prior convictions occurred

approximately three years before the federal trial. This court has upheld

admission of prior convictions as far apart as four years. United States v.

Franklin, 704 F.2d 1183, 1189 (10th Cir. 1983). In Franklin, this court stated:

“‘[T]here is no absolute rule regarding the number of years that can separate

offenses. Rather, the court applies a reasonableness standard and examines the

facts and circumstances of each case.’” Id. (alteration in original) (quoting

United States v. Engleman, 648 F.2d 473, 479 (8th Cir. 1981)). This court thus

finds that the district court did not abuse its discretion in determining that three

years was not too remote. See United States v. Bonnett, 877 F.2d 1450, 1461

(10th Cir. 1989) (“The closeness in time and the similarity in conduct [are]

matters left to the trial court, and [its] decision will not be reversed absent a

showing of abuse of discretion.”).

      Finally, counsel for Taylor argues that under the fifth prong of the

Robinson test, the evidence of Taylor’s prior convictions was unfairly prejudicial

and that the prejudice outweighed its probative value. Taylor argues that

knowledge of his prior convictions predisposed the jury to believe Taylor was a

drug-user and that he acted in conformity with his bad character or habit.




                                          -10-
      Again we find the district court did not abuse its discretion in finding the

probative value of Taylor’s convictions outweighed any unfair prejudice. As

stated above, Taylor’s prior convictions were probative of the issue of Taylor’s

knowledge, showing that he “was not a naive, unsophisticated mechanic who

drove a car ... that happened to contain cocaine.” Rackstraw, 7 F.3d at 1480

(stating “Although the evidence was prejudicial to [defendant], we cannot say that

it was unfairly prejudicial, much less that any unfair prejudice ‘substantially’

outweighed its strong probative value.”).

      Moreover, the potential for unfair prejudice was diminished by the fact that

the trial court gave the jury limiting instructions on three different occasions:

before each of two different witnesses testified about Taylor’s prior convictions

and again at the close of arguments. Thus, we find the district court adequately

considered each of the factors required under Robinson and Huddleston and did

not abuse its discretion in allowing Taylor’s prior convictions into evidence.

      For the reasons set forth above, we AFFIRM the judgment of the United

States District Court for the District of Kansas.

                                        ENTERED FOR THE COURT,



                                        Michael R. Murphy
                                        Circuit Judge



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