                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-3675
                                   ___________

United States of America,              *
                                       *
             Appellee,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Northern District of Iowa.
Terry Terrell Samuels, also known      *
as T.G.,                               *
                                       *
             Appellant.                *
                                  ___________

                             Submitted: June 10, 2008
                                Filed: October 9, 2008
                                 ___________

Before SMITH, BOWMAN, and GRUENDER, Circuit Judges.
                           ___________

BOWMAN, Circuit Judge.

       Terry Terrell Samuels was convicted after a jury trial on both counts of a two-
count indictment charging him with distribution of cocaine base (crack cocaine)
within 1000 feet of an elementary school, 21 U.S.C. §§ 841(a)(1), 860(a). The
District Court1 sentenced him to a statutory life term of imprisonment, id.
§ 841(b)(1)(A). He appeals his convictions and his sentence. We affirm.



      1
       The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
       We relate the facts in the light most favorable to the jury's finding of guilt.
United States v. Davis, 260 F.3d 965, 967 (8th Cir. 2001), cert. denied, 534 U.S. 1107
(2002). In early 2006, Travis Rogers had been contacting Samuels, also known to
Rogers as "T.G.," about three times a week to purchase crack cocaine. About seventy-
five percent of the time, someone other than Samuels would show up to actually make
the exchange of drugs for cash. In March of 2006, Rogers became a confidential
informant (CI) and worked with law enforcement to set up controlled buys of cocaine
base from Samuels. On March 24, 2006, Rogers purchased 20.24 grams of cocaine
base from Samuels for $750. The transaction took place in the entryway of Rogers's
apartment building in Dubuque, Iowa, which was within 1000 feet of Prescott
Elementary School. Samuels arrived at Rogers's apartment building alone in a white
Dodge Charger. On March 28, 2006, Samuels again drove to Rogers's apartment
building in a white Charger, but sent an unidentified male into the building to
exchange 19.35 grams of cocaine base for $750. On both occasions, Rogers wore a
wire and law enforcement recorded the transactions. Shortly before each controlled
buy, Rogers called Samuels at the same telephone number; those calls were recorded
by law enforcement as well. And immediately before Samuels arrived for the March
28 transaction, Samuels called Rogers. The wire that Rogers was wearing recorded
Rogers's side of the conversation but not Samuels's. Both of the controlled buys were
also observed by law enforcement officers, although the officers could not see into the
apartment building. These sales are the basis for Samuels's convictions on the two
counts of distribution.

      For his first issue on appeal, Samuels contends that the District Court erred in
denying his pretrial ex parte request for authorization to pay a voice comparison
expert more than the maximum allowed by statute. See 18 U.S.C. § 3006A(e). The
expert would have compared Samuels's voice with the voice of the person who gave
Rogers the cocaine base in exchange for cash on March 28 and then would have made
a judgment as to whether it was in fact Samuels's voice on the recording made by law



                                         -2-
enforcement.2 After a hearing, the court determined that Samuels had not met his
burden to show the court both that the expert's analysis was "necessary to an adequate
defense" and that Samuels's trial would be unfair if the employment of his expert was
not approved. United States v. Mentzos, 462 F.3d 830, 839 (8th Cir. 2006), cert.
denied, 127 S. Ct. 2079 (2007). The court said that the voice analysis was
unnecessary because there were other methods available to Samuels to show that he
was not the speaker on the tape, for example, the testimony of someone who knew
him and his voice. See United States v. Thurmon, 413 F.3d 752, 756 (8th Cir.), cert.
denied, 546 U.S. 1069 (2005). The court also doubted that a voice comparison
analysis would result in admissible evidence. On appeal, we will reverse only if we
decide that the court abused its discretion, and we can make such a determination only
if Samuels shows that he was prejudiced by the denial of his request. See Mentzos,
462 F.3d at 840.

       We do not address the admissibility of any evidence that may have resulted
from the proposed expert's analysis because we conclude that the District Court did
not err in determining that Samuels failed to show that a voice analysis of the
March 28 wire recording of the controlled buy was necessary for his defense. As the
court noted, there were other methods to show that Samuels's was not the voice on the
recording. Moreover, the recordings of both transactions were played for the jurors
during trial, and they could judge for themselves if the voices were the same. In any
event, with the benefit of hindsight, we can say with confidence that Samuels was not
prejudiced by the absence of an expert's voice-comparison opinion. When Rogers was


      2
       Samuels claims that the recording of the March 28 transaction "was selected
because it is the alleged seller's conversation on audiotape that is the longest and
consequently the most likely to be amenable to voice comparison." Br. of Appellant
at 25–26. We have listened to the recorded transactions for both the March 24 and the
March 28 controlled buys and conclude that Samuels's characterization is wrong. On
the March 24 recording, the seller speaks longer, louder, and more clearly than on the
March 28 recording.

                                         -3-
called as a witness at trial, he apparently changed his expected testimony and said that
although he had spoken to Samuels twice by telephone just before the March 28 sale,
Samuels sent another individual into Rogers's apartment building to turn over the
crack and collect the cash (as he had in the past, before Rogers became a CI).
Rogers—the only eyewitness to the actual exchange of money for drugs as it was
being recorded (besides the person who took the cash and gave Rogers the
crack)—testified that the voice on the March 28 recording of the controlled buy did
not belong to Samuels. Given that testimony, "the facts do not reasonably suggest"
that it was Samuels's voice on the wire recording, so the jury did not need the opinion
of an expert that it was not Samuels's voice. Thurmon, 413 F.3d at 756. Samuels
makes much of the fact that Rogers's exculpatory trial testimony on this point had
changed from Rogers's previous inculpatory sworn statements (that Samuels himself
had handed Rogers the crack cocaine on March 28), but that does not make an expert
opinion that the voice was not Samuels's necessary to his defense. We hold that the
District Court did not abuse its discretion in denying Samuels's request to authorize
funds to pay an expert more than the maximum allowed by statute.

       Samuels next argues that the District Court abused its discretion when it denied
portions of his motion in limine. See United States v. Benitez, 531 F.3d 711, 716 (8th
Cir. 2008) (standard of review). The court granted the motion in part but denied it as
to the testimony of two cooperating witnesses, Rogers and Donald Harris, and as to
evidence of the fact of Samuels's 1998 Illinois state-court conviction for delivery of
marijuana. Samuels argues that allowing this evidence at trial violated the dictates of
Rules 403 and 404(b) of the Federal Rules of Evidence. Under Rule 403, relevant
evidence "may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice." Likewise, evidence of other crimes or acts will not be
admissible under Rule 404(b) "to prove the character of a person in order to show
action in conformity therewith." But "Rule 404(b) is a rule of inclusion rather than
exclusion, rendering admissible evidence of other crimes relevant to any issue at trial
other than an accused's criminal disposition." Benitez, 531 F.3d at 716. The Rule

                                          -4-
allows the admission of evidence of other crimes or acts to prove intent, knowledge,
and identity, all of which are relevant here, where Samuels denied that he was the
person who sold Rogers the cocaine base.

       As for the testimony of the cooperating witnesses, Samuels contends that the
"sheer volume" of drug deals testified to by Rogers and Harris "invited" the jury to use
that testimony to determine that Samuels was guilty of the similar conduct with which
he was actually charged. Br. of Appellant at 28. But as the District Court pointed out,
Rogers was the CI for the charges for which Samuels was on trial, and his testimony
about the crack cocaine deals he had done with Samuels in the weeks leading up to
March 2006 was highly relevant to show Samuels's intent, knowledge, and identity
and was not unfairly prejudicial. And Harris testified to conducting crack deals with
Samuels that followed the pattern Rogers described in his testimony. In early 2006,
before the controlled buys with Rogers, Samuels delivered crack cocaine to Harris's
residence, occasionally sending someone else to make the actual cash-for-crack
exchange. This was relevant and highly probative evidence, again of Samuels's intent,
knowledge, and identity, and was not unfairly prejudicial. While both Rogers and
Harris testified to a number of drug deals with Samuels, all of the deals occurred
during a limited time frame close in time to the controlled buys, and both witnesses
described transactions that took place in a manner strikingly similar to that of the
crimes charged.

       Samuels also argues that evidence of his state-court marijuana conviction
should not have been admitted. According to Samuels, the January 1998 conviction
for delivery of marijuana in December 1996 was so remote in time from the March
2006 charged conduct that it was not relevant, lacked probative value, and constituted
excludable other-crimes evidence. Although the 1998 delivery conviction was for a
crime that occurred over nine years before the conduct charged in the indictment, that
crime was functionally similar to the charged conduct and was relevant to show
Samuels's intent, knowledge, and identity for the two counts of conviction. Cf. United

                                          -5-
States v. Cook, 454 F.3d 938, 941 (8th Cir. 2006). The illegal substance was not the
same, but that is of no consequence. See id.; see also Benitez, 531 F.3d at 716.
Moreover, the government proposed to prove only the fact of conviction, either by
confronting Samuels, if he testified, or by offering a certified copy of the conviction.3
Both of these are straightforward methods of proof that are less prejudicial than, for
example, police reports (which could contain hearsay) or witness testimony (which
could result in mini-trials of old crimes). See Cook, 454 F.3d at 942.

       In addition, we note that after the introduction of the other crimes evidence at
Samuels's trial, the District Court gave specific cautionary instructions advising the
jury that the evidence could not be used to prove the crimes charged and could be
considered only if proved by a preponderance of the evidence. Had there been any
unfair prejudice to Samuels, it would have been offset by the limiting instructions.
See United States v. Edelmann, 458 F.3d 791, 810 (8th Cir. 2006); United States v.
Tail, 459 F.3d 854, 858 (8th Cir. 2006).

       In sum, the evidence was offered for a proper purpose, it was relevant, its
probative value was not outweighed by the potential for unfair prejudice, and the court
gave cautionary instructions. See Huddleston v. United States, 485 U.S. 681, 691–92
(1988). In these circumstances, we cannot say that the District Court abused its
discretion in denying Samuels's motion in limine as to these matters.

      For his next issue, Samuels appeals the District Court's denial of his Batson4
challenge to the government's peremptory exclusion of two jurors from the venire.
Samuels argues that the two were removed because they were African-American, as
is Samuels. When counsel raised the challenge during jury selection, the District



      3
       Samuels ultimately stipulated to the fact of conviction.
      4
       Batson v. Kentucky, 476 U.S. 79 (1986).

                                          -6-
Court5 conducted the necessary inquiry and found that the strikes were not racially
motivated. We review the District Court's determination concerning discriminatory
intent—a question of fact—for clear error. Miller-El v. Cockrell, 537 U.S. 322, 340
(2003).

       At the point in jury selection where the government and Samuels were to
exercise their peremptory challenges, three African-Americans remained on the
venire. The government struck two of them, Starks and Vanarsdale. Samuels
objected. The District Court first determined that Samuels had made a prima facie
showing that the government excluded Starks on the basis of his race and assumed
that the prima facie case was made as to Vanarsdale.6 See Snyder v. Louisiana, 128
S. Ct. 1203, 1207 (2008) (articulating the three-step process to be followed in the
event of a Batson challenge).

        At this point, the burden shifted to the government to offer race-neutral reasons
for striking both. "Although the prosecutor must present a comprehensible reason,
'[t]he second step of this process does not demand an explanation that is persuasive,
or even plausible'; so long as the reason is not inherently discriminatory, it suffices."
Rice v. Collins, 546 U.S. 333, 338 (2006) (quoting Purkett v. Elem, 514 U.S. 765,
767–68 (1995) (per curiam)). As for Starks, the Assistant United States Attorney
(AUSA) noted the prospective juror's concern that the judicial system treated his
nephew unfairly because the nephew was African-American. According to Starks, his
nephew was charged with a felony offense and was "railroaded" into taking a plea
bargain to avoid a lengthy sentence. Jury Selection Tr. at 55. On his juror

      5
       With Samuels's consent, the Honorable Jon S. Scoles, United States Magistrate
Judge for the Northern District of Iowa, presided over jury selection.
      6
       When challenged for the strike, the Assistant United States Attorney professed
his subjective belief that Vanarsdale was white, and the court was uncertain. Jury
Selection Tr. at 75–76. A record was later made that Vanarsdale's father is African-
American.

                                          -7-
questionnaire, Starks also said that he believed the justice system does not treat
African-Americans fairly. During voir dire, Starks said that the government needed
to have "overwhelming" evidence to prove its case. Id. at 54. The AUSA's concerns
regarding Vanarsdale were his friendship with Starks, the fact that he had previously
served on a jury that had returned a split verdict, a question Vanarsdale asked during
voir dire about circumstantial evidence and a hypothetical vehicle stop by police, and
Vanarsdale's "demeanor." Id. at 77. The AUSA also mentioned Vanarsdale's
comment that his uncle overdosed on drugs and that he has friends and family who use
drugs but "it's their choice." Id. at 85.

       The court then found that Samuels had failed to meet his burden to show
purposeful discrimination on the part of the government. See Rice, 546 U.S. at 338
(noting that burden of persuasion on this point is the defendant's). "Step three of the
Batson inquiry involves an evaluation of the prosecutor's credibility . . . ." Snyder,
128 S. Ct. at 1208. And where, as here, demeanor is mentioned as a reason for
striking a prospective juror, "the trial court's first-hand observations [are] of even
greater importance." Id. The reasons the AUSA gave for striking Starks may be
stronger than those he gave for striking Vanarsdale, but none of the reasons shows
purposeful discrimination on the part of the government. Samuels's argument that
defense counsel rehabilitated these veniremen on several of the problems noted by the
AUSA is of no avail. These were not challenges for cause, where a juror may be
rehabilitated and remain on the venire, but were peremptory challenges, where
rehabilitation does not preclude the strikes. See White v. Luebbers, 307 F.3d 722, 728
(8th Cir. 2002) (noting that the government could exercise a peremptory challenge to
excuse a potential juror who could not be removed for cause after he had been
rehabilitated by the defense), cert. denied, 538 U.S. 981 (2003); see also Batson v.
Kentucky, 476 U.S. 79, 97 (1986) ("[T]he prosecutor's explanation [for a peremptory
strike] need not rise to the level justifying exercise of a challenge for cause."). The
AUSA's explanations in this case were neither unreasonable nor improbable. See



                                         -8-
Miller-El, 537 U.S. at 339. We conclude that the District Court did not clearly err in
denying Samuels's Batson challenge.

       For his next issue, Samuels argues that the District Court erred in denying his
motion for judgment of acquittal or, in the alternative, a new trial. This is essentially
a sufficiency-of-the-evidence challenge, with Samuels pointing out the following
problems with the evidence—or lack thereof—at trial.

       The government presented no evidence of the ownership of the Dodge Charger
in which Samuels arrived at Rogers's apartment building for the controlled buys and
no evidence of the identity of the account holder for the telephone number at which
Rogers reached Samuels. Also, law enforcement did not follow up on its request for
fingerprint analysis of the drug packaging, so there was no fingerprint evidence at
trial. Law enforcement took no photographs of the drug transactions, and the
identification of Samuels made by the officers after the controlled buys was suspect
because "the photograph that they based their identification on was obtained as a
result of a misidentification of Mr. Samuels on an earlier occasion." Br. of Appellant
at 35. The visual identification also was tainted because Samuels was wearing a hat,
the officers were in a moving car and the suspect was moving when they identified
him as Samuels, the visuals were brief, and the identifications were cross-racial.
Because the actual transactions took place inside the foyer of Rogers's apartment
building, the surveilling officers did not see the exchanges take place, and no one on
the recordings mentioned drugs. Finally, key government witnesses Rogers and
Harris were not credible, as they were both criminals themselves and Rogers had told
conflicting stories about the identity of the person who actually handed over the crack
cocaine in the second controlled buy.

       We review the denial of a motion for judgment of acquittal de novo, viewing
the evidence in the light most favorable to the verdict. United States v. Coplen, 533
F.3d 929, 931 (8th Cir. 2008). We have reviewed the transcript of Samuels's trial and

                                          -9-
have determined that a rational jury "could have found the essential elements of the
crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979).
The missing evidence that Samuels identifies might have made the government's case
stronger, but it was not necessary for proof beyond a reasonable doubt. And as this
Court has said many times, questions concerning the credibility of witnesses, where
their testimony is not incredible on its face, are for the jury to decide. See, e.g.,
Coplen, 533 F.3d at 931.

       When faced with a motion for a new trial, unlike a motion for judgment of
acquittal, a district court is permitted to weigh the evidence and judge witness
credibility for itself in determining if there may have been a miscarriage of justice
such that a new trial is required. United States v. Davis, 534 F.3d 903, 912 (8th Cir.
2008). We review the District Court's denial of Samuels's new-trial motion for abuse
of discretion. Id. "Motions for new trials based on the weight of the evidence are
generally disfavored." United States v. Campos, 306 F.3d 577, 579 (8th Cir. 2002).
Samuels's argument regarding "[v]ery important evidence . . . not presented by the
government" and the credibility of Rogers and Harris is no more compelling on the
issue of a new trial than it was on the issue of judgment of acquittal. Br. of Appellant
at 34.

      In its order denying Samuels's motion for a new trial, the District Court
reviewed in detail the case presented against Samuels at trial and found that the
evidence of guilt for the crimes charged was "strong" and "exceed[ed] the standard for
a new trial." Order of Aug. 30, 2007, at 15, 16. As noted above, Samuels argues that
the evidence the government did not present and the credibility of its cooperating
witnesses resulted in a verdict that should be overturned. But "the question is not
what evidence the government did not have." Campos, 306 F.3d at 581. Instead, the
court must evaluate the strength of the evidence that was presented. As for witness
credibility, the District Court noted that in deciding the motion for a new trial, it could
weigh the evidence and satisfy itself regarding witness credibility. We have no reason

                                           -10-
to believe that the District Court did not apply these legal standards in determining
that a new trial was not warranted based on the credibility of the cooperating
witnesses. We cannot say that the District Court abused its discretion in denying
Samuels's motion for a new trial.

       Samuels also challenges the District Court's imposition of a statutory mandatory
life sentence.7 We review de novo the court's interpretation and application of the
statute. United States v. McAtee, 481 F.3d 1099, 1105 (8th Cir. 2007).

       Samuels argues that his "prior convictions for a felony drug offense," 21 U.S.C.
§ 841(b)(1)(A), were improperly used to enhance his sentence for two reasons. First,
he challenges the convictions themselves, insisting that he did not commit the offenses
to which he pleaded guilty and of which he was therefore convicted. This argument
fails because the convictions in question occurred more than five years before the date
of the information that set out the notice of intent to seek enhanced penalties and
because Samuels does not now claim that he was denied the right to counsel when
convicted. See United States v. Rounsavall, 115 F.3d 561, 566 (8th Cir.), cert. denied,
522 U.S. 903 (1997); see also 21 U.S.C. § 851(e).

       Samuels also argues that the convictions in question should be counted as a
single offense. The previous crimes were possession of crack cocaine on
September 4, 1994, for which Samuels was convicted and sentenced to probation on
April 25, 1996; possession of crack cocaine on February 20, 1995, for which Samuels
was convicted and sentenced to prison on April 25, 1996; and delivery of marijuana
on December 31, 1996 (after Samuels's release from prison on the second crack


      7
        It is confusing at times as to whether Samuels is challenging his status as a
career offender under Chapter 4 of the Sentencing Guidelines (Criminal History) or
his status as a drug offender with two prior felony drug convictions under 21 U.S.C.
§ 841. Where the distinction matters, we have given Samuels the benefit of the doubt
when considering his sentencing issues.

                                         -11-
cocaine charge), for which Samuels was convicted and sentenced to probation on
January 26, 1998. We reject Samuels's argument that these three convictions
"constitute a single criminal episode." Br. of Appellant at 39. The crimes occurred
at least months and at most over two years apart and "required separate planning and
execution." McAtee, 481 F.3d at 1105 (quoting United States v. Gray, 152 F.3d 816,
821 (8th Cir. 1998), cert. denied, 525 U.S. 1169 (1999)). Two of the crimes involved
crack cocaine, one involved marijuana; two were for possession, one was for delivery;
and as Samuels acknowledges, they were all separated by intervening arrests and the
last two were separated by time served in prison. They do not become a single
offense, as Samuels maintains, merely because they all involved small amounts of
controlled substances and all occurred in Chicago.

       Samuels also argues that the state-law possession offenses would be
misdemeanors, not felonies, under federal law and so cannot be used to sentence him
to a statutory mandatory life sentence. In support of this argument, he cites the
Supreme Court's opinion in Lopez v. Gonzales, 127 S. Ct. 625 (2006), where the
Court discussed the meaning of a "felony punishable under the Controlled Substances
Act" in an immigration removal case. But "felony drug offense" for purposes of
statutory enhancement under § 841(b)(1) is defined by 21 U.S.C. § 802(44) as "an
offense that is punishable by imprisonment for more than one year" under any federal
or state law. Samuels's argument therefore fails.

      It appears that Samuels also makes a Sentencing Guidelines "reasonableness"
challenge, claiming that "the district court erred in enhancing his sentence as a career
offender." Br. of Appellant at 39. This argument is without merit. The District Court
sentenced Samuels to life in prison as required by § 841(b)(1), not as a career offender
under the Guidelines. In this situation, "reasonableness" under the Guidelines is not
implicated. See United States v. Gregg, 451 F.3d 930, 937 (8th Cir. 2006).

      We affirm Samuels's convictions and sentence.
                    ______________________________

                                         -12-
