                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT


                                  No. 96-2897NE


United States of America,           *
                                    *
         Plaintiff/Appellee,        *       Appeal from the United States
                                    *       District Court for the
         v.                         *       District of Nebraska.
                                    *
Anthony Emmanuel,                   *
                                    *
         Defendant/Appellant.       *



                        Submitted: February 11, 1997

                               Filed: May 5, 1997


Before RICHARD S. ARNOLD, Chief Judge, HANSEN, Circuit Judge, and
BATTEY,1 Chief District Judge.


BATTEY, Chief District Judge.

     Appellant Anthony Emmanuel (“Emmanuel”) was convicted for conspiring
to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and
846. At sentencing the district court2 calculated Emmanuel’s range of
imprisonment at 57 to 71 months, based on criminal history category III and
total offense level 23. The court sentenced Emmanuel to sixty months’
imprisonment applying the minimum sentence requirement contained in 21
U.S.C. § 841(b)(1)(B)




     1
      The Honorable Richard H. Battey, Chief United States District
Judge for the District of South Dakota, sitting by designation.
     2
      The Honorable Thomas M. Shanahan, United States District
Judge for the District of Nebraska.

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(viii). Emmanuel challenges his conviction based on the district court’s
admission of the following: (1) firearms seized from his residence and a
co-conspirator’s residence; and (2) testimony of Emmanuel’s ex-girlfriend
concerning uncharged methamphetamine distribution and physical abuse. He
challenges his sentence based on the district court’s determinations as to
the following: (1) the finding as to the type of methamphetamine; (2) the
enhancement of   the sentence under U.S.S.G. § 2D1.1(b)(1) for possession
of a firearm during the commission of a crime; and (3) the classification
of methamphetamine in the schedules. We affirm his conviction and sentence.


I.   TRIAL ISSUES


     A.    Firearms Evidence


     Emmanuel asserts that the district court erred in admitting evidence
of firearms seized from his residence and the residence of co-conspirator
Michael Crestoni (“Crestoni”).    He contends that the firearms were not
relevant on the question of his guilt or the existence of a conspiracy to
distribute methamphetamine, and that their prejudicial effect outweighed
their probative value under Federal Rule of Evidence 403.    We review the
district court’s evidentiary ruling on the admission of the firearms under
the abuse of discretion standard.   See United States v. Jackson, 67 F.3d
1359, 1366 (8th Cir. 1995); Old Chief v. United States,        U.S.      ,
117 S. Ct. 644, 647 n.1, 136 L. Ed. 2d 574 (1997). The district court’s
discretion is particularly broad in the context of a conspiracy trial.
United States v. Logan, 54 F.3d 452, 454 (8th Cir. 1995) (citing United
States v. Searing, 984 F.2d 960, 965 (8th Cir. 1993)).




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        Six firearms, consisting of five shotguns and one .22 caliber rifle,
were seized at Emmanuel’s residence.              They were uncased and found in
Emmanuel’s master bedroom.          Most of the weapons were loaded. Controlled
substances, as well as other drug paraphernalia, were also discovered
throughout Emmanuel’s residence including: (1) a baggie containing smaller
ziploc baggies in the master bedroom on the dresser adjacent to the bed;
(2) a Tanita electronic scale in the basement; (3) baggies containing
methamphetamine residue in the basement; and (4) a scale and roach clip in
a dish in the dining room.


        Two firearms were seized at Crestoni’s residence consisting of a
loaded lever action 30-30 rifle found in an unfinished attic and a 10mm
semi-automatic pistol with a round loaded in the chamber located on a shelf
above the kitchen door. At trial Crestoni testified that both weapons were
used for protection from drug thieves. Controlled substances, as well as
other drug paraphernalia, were also discovered throughout Crestoni’s
residence including: (1) purported drug records on the dining room table
which did not reference Emmanuel; (2) a Tanita electronic gram scale in a
chest of drawers in the dining room; (3) an envelope containing two plastic
baggies with methamphetamine on the dining room table; and (4) a camera bag
containing    three   plastic   baggies    with    methamphetamine     in    a   kitchen
cupboard.
        The record establishes evidence affirmatively linking Crestoni’s drug
conspiracy to Emmanuel.         Crestoni testified that he began receiving
methamphetamine from one James Ryan (“Ryan”) in the summer of 1993. In
early    1994,   Crestoni   began    receiving    as   much   as   sixteen   ounces   of
methamphetamine weekly from Ryan.        During the time frame of late spring to
early summer of 1994, through the date of his arrest on August 5, 1994, the
amount of methamphetamine increased to as much as three pounds per week.
Crestoni paid Ryan




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$8,000 cash for each pound.       Crestoni would re-weigh and re-package the
methamphetamine into ounce quantities in plastic baggies similar to those
seized at Emmanuel’s residence. The drugs were then distributed at a price
of $1,000 per ounce. Crestoni identified Emmanuel as one of his customers.
He estimated that he sold methamphetamine to Emmanuel three to four times
in amounts varying from two to six ounces at a time during the conspiracy.
Emmanuel paid cash for the deliveries which took place at both Emmanuel’s
and Crestoni’s residences.


     It is the law of this circuit that              “[t]he presence of loaded
firearms in the house where the drug transactions occurred is evidence that
the weapons were used to facilitate the drug trafficking.”        Logan, 54 F.3d
at 454 (citing United States v. Watson, 953 F.2d 406, 409 (8th Cir. 1992)).
The drugs and drug paraphernalia found throughout the house were in
proximity to the weapons. The availability of the loaded firearms in
Emmanuel’s residence was relevant on the issue of the existence of the drug
conspiracy.    Id.; Jackson, 67 F.3d at 1367. As was the case with the
firearms seized at Emmanuel’s residence, the loaded firearms seized at
Crestoni’s    residence   where    drug       transactions   occurred   and   drug
paraphernalia were seized are evidence that the weapons were used to
facilitate the drug trafficking. See Logan, 54 F.3d at 454. Moreover,
Crestoni highlighted the weapons’ significance to the conspiracy when he
testified that the two weapons seized in his house were used for protection
against drug thieves.        The availability of the loaded firearms in
Crestoni’s residence is also relevant for purposes of establishing the
conspiracy of which Emmanuel was charged. Id.; Jackson, 67 F.3d at 1367.
     Emmanuel invites us to apply Bailey v. United States,                U.S.
, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1996), to require the government to
prove that the weapons were used or intended to be




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used in order for the weapons to be admissible in a drug conspiracy case.
We decline the invitation.    Bailey involved conviction under 18 U.S.C. §
924(a)(1) which criminalized “use” of a firearm during and in relation to
a drug trafficking offense.    In such case the statute requires evidence
sufficient to show active employment of a firearm by a defendant.       The
firearms found in the houses of Emmanuel and Crestoni were relevant on the
issue of the existence of the drug conspiracy.      The government was not
required to prove “use” under the Bailey standard as a predicate to
admissibility. The court did not err in the admission of this evidence.


     B.    Rule 404(b) Evidence


     Emmanuel asserts that the district court erred in admitting co-
conspirator Connie Kissel’s (“Kissel”) testimony regarding Emmanuel’s
obtaining methamphetamine from Crestoni prior to the time frame of the
alleged conspiracy and his assaultive behavior toward her. The claimed
assault was not included in the government’s Rule 404(b) notice or the
pretrial discussions. It was raised in response to the prosecutor’s
question as to how or why Kissel remembered her relationship ended with
Emmanuel on February 8, 1994. She responded that was when “he beat me up.”
Emmanuel did not preserve an objection, and there was no further mention
of the subject.   We find no plain error.


     Prior to trial, the government filed an amended notice of intent to
use Rule 404(b) evidence which included Kissel’s testimony pertaining to
Emmanuel’s prior drug activity.   Kissel had been involved in a relationship
with Emmanuel from March of 1993 until February 8, 1994. Emmanuel objected
to the government’s notice that Kissel would provide testimony regarding
Emmanuel’s obtaining methamphetamine from Crestoni during the time frame
of




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their relationship. His objection was that the testimony concerned a period
outside the alleged conspiracy time frame of June 1994 to August 5, 1994.
The district court made a preliminary determination that Kissel’s testimony
would be excluded because it was outside the time period of the conspiracy.
However, at trial the district court admitted the testimony conditionally
under United States v. Bell, 573 F.2d 1040 (8th Cir. 1978).        The evidence
was admitted to show Emmanuel’s knowledge concerning the objective of the
conspiracy, his relationship to any co-conspirators including Crestoni, and
the availability of methamphetamine.


     Before admitting Kissel’s testimony regarding Emmanuel’s conduct
during a period prior to the alleged conspiracy, the district court
provided the jury with a Rule 404(b) cautionary instruction. The court
instructed the jury that Kissel’s testimony should only be considered to
establish: (1) Emmanuel’s knowledge of the alleged conspiracy; (2) his
intent to distribute and possess with intent to distribute; (3) his plan
to join the alleged conspiracy; (4) his opportunity to enter into the
alleged conspiracy; or (5) the absence of mistake or accident by Emmanuel.
     Kissel testified that she had known Crestoni for fifteen to twenty
years and had purchased methamphetamine from him in the latter part of 1993
and during the summer months of 1994. She also stated that she had known
Emmanuel   for   approximately   fifteen   years   and   that   their   romantic
relationship began in March of 1993, and ended on February 8, 1994, as a
result of Emmanuel’s assault at which time she moved into Crestoni’s
residence. She testified that although she had never actually witnessed
Emmanuel receive methamphetamine from Crestoni, Emmanuel had told her that
he had received methamphetamine from him. During the time frame of late
1993, through the time of their breakup on February 8, 1994, she indicated
that Emmanuel told her that he purchased one ounce of




                                      6
methamphetamine every one to two weeks from Crestoni.   Kissel also provided
testimony as to Emmanuel’s drug activity during the time frame of the
conspiracy. She stated that irrespective of their breakup, she and Emmanuel
had weekly contact during the time of the alleged conspiracy which ran from
June of 1994 to August 5, 1994.    Emmanuel disclosed to her that during this
time period he was selling “three or four ounces a week” which she
understood to mean methamphetamine.


      Prior bad acts may be admitted under Rule 404(b) to demonstrate
motive, opportunity, intent, preparation, common plan, knowledge, identity,
or absence of mistake or accident. To be admissible, evidence must also
meet the following conditions: (1) it must be relevant to a material issue;
(2)   the bad act must be reasonably similar in kind and close in time to
the crime charged; (3) it must be sufficient to support a jury finding that
the defendant committed the prior act; and (4) the probative value of the
evidence must outweigh its prejudicial effect.     United States v. Edwards,
91 F.3d 1101, 1103 (8th Cir. 1996) (citing United States v. Jones, 990 F.2d
1047, 1050 (8th Cir.), cert. denied, 510 U.S. 1048, 114 S. Ct. 699, 126 L.
Ed. 2d 666 (1994)). See also United States v. Dobynes, 905 F.2d 1192, 1194-
95 (8th Cir. 1990).    The district court has broad discretion to admit
evidence of other bad acts under Rule 404(b) unless the evidence tends to
prove only the defendant’s criminal disposition. United States v. Crouch,
46 F.3d 871, 875 (8th Cir. 1995) (citing United States v. Sykes, 977 F.2d
1242, 1246 (8th Cir. 1992)).      We review the district court’s evidentiary
ruling on the admission of Rule 404(b) evidence under the abuse of
discretion standard.   Edwards, 91 F.3d at 1103 (citing United States v.
Huff, 959 F.2d 731, 736 (8th Cir.), cert. denied, 506 U.S. 855, 113 S. Ct.
162, 121 L. Ed. 2d 110 (1992)).




                                       7
      Kissel’s   testimony    regarding    Emmanuel’s       distribution   of
methamphetamine from late 1993 to February 8, 1994, is admissible under
Rule 404(b). The district court did not abuse its discretion in admitting
Kissel’s   testimony   regarding   Emmanuel’s   uncharged     methamphetamine
distribution. Kissel’s testimony concerning Emmanuel’s prior drug activity
was admissible since it was relevant; its probative value outweighed its
prejudicial effect; the prior drug activity was reasonably similar in kind
and close in time to the crime charged; and the record indicates the
evidence was sufficient to support a jury finding that Emmanuel engaged in
the prior drug activity. See, e.g., United States v. Moore, 98 F.3d 347,
350 (8th Cir. 1996); United States v. Shoffner, 71 F.3d 1429, 1432-33 (8th
Cir. 1995).


II.   SENTENCING ISSUES


      Emmanuel contends that the district court erred in determining that
the methamphetamine involved was a Schedule II controlled substance and
that it was d-methamphetamine as opposed to l-methamphetamine.


      The statutory mandatory minimum provides that in a case where a
defendant is found guilty of a violation of the Controlled Substance Act
involving “10 grams or more of methamphetamine, its salts, isomers, and
salts of its isomers or 100 grams or more of a mixture or substance
containing a detectable amount of methamphetamine, its salts, isomers, or
salts of its isomers . . . such person shall be sentenced to a term of
imprisonment which may not be less than 5 years . . . .”         21 U.S.C. §
841(b)(1)(B)(viii).


      The court sentenced Emmanuel to sixty months’ imprisonment, applying
the mandatory minimum sentence required by 21 U.S.C.




                                     8
§ 841(b)(1)(B)(viii).    Emmanuel attempts to distinguish between d- and l-
methamphetamine to avoid application of the statutory mandatory minimum
which by its own terms makes no distinction. Accordingly, Emmanuel’s
argument lacks merit. The mandatory minimum sentence prescribed by statute
trumps Emmanuel’s claim of error as to the type of methamphetamine. United
States v. Massey, 57 F.3d 637 (8th Cir. 1995).


      Finally, Emmanuel urges that the district court erred by applying the
two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) for possession of
a firearm during the commission of a crime. The presentence report provided
for a presumptive sentence of 57 to 71 months. The district court applied
the mandatory minimum of 60 months.       Again, the mandatory minimum trumps
this objection.


IV.   CONCLUSION


      For the reasons enumerated above, the judgment and sentence are
affirmed.

      A true copy.
                   Attest:
                        CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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