                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-1697
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Missouri.
Alonzo Jones,                            *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: January 11, 2001

                                   Filed: June 26, 2001
                                    ___________

Before LOKEN and BYE, Circuit Judges, and BATAILLON,* District Judge.
                               ___________

LOKEN, Circuit Judge.

      Alonzo Jones was convicted of violating 21 U.S.C. § 841(a)(1) by distributing
cocaine base to undercover police officers in Steele, Missouri, on two days in 1998.
The district court1 sentenced Jones to 324 months in prison, the bottom of his


      *
       The HONORABLE JOSEPH F. BATAILLON, United States District Judge for
the District of Nebraska, sitting by designation.
      1
       The HONORABLE E. RICHARD WEBBER, United States District Judge for
the Eastern District of Missouri.
sentencing guidelines range, and six years of supervised release. Jones appeals,
arguing that the government failed to disclose a potential alibi witness, as Rule 12.1(b)
of the Federal Rules of Criminal Procedure requires; that the district court abused its
discretion in admitting “other crimes” evidence under Rule 404(b) of the Federal Rules
of Evidence; and that the disparity between his sentence and that of his drug supplier
violated his Eighth Amendment rights. We affirm.

        1. Before trial, counsel for the government served a Request for Notice of Alibi
Witnesses pursuant to Rule 12.1(a). Two months later, and just one week before trial,
counsel for Jones advised the government that the defense would present testimony by
Sondra Robinson that she and Jones were together constantly from noon on August 28
until the evening of August 29, the date of the first alleged undercover drug transaction,
and that the two were never less than fifty miles from Steele, Missouri.2 Rule 12.1(b)
provides that, when the defendant provides notice of his intent to offer an alibi defense,
the government within ten days shall serve a written notice “stating the names and
addresses of the witnesses upon whom the government intends to rely to establish the
defendant’s presence at the scene of the alleged offense and any other witnesses to be
relied on to rebut testimony of any of the defendant’s alibi witnesses.” Here, the
government did not serve a Rule 12.1(b) notice.

      Sondra Robinson was called as a defense witness at trial. She testified on direct
examination that she was with Jones on August 28 and 29, far from Steele, Missouri.
On cross exam, the government confronted Robinson with a document reflecting that
she had been released from the Scott County jail on August 31. Robinson then


      2
        This response was both untimely and inadequate. Rule 12.1(a) provides that,
unless the court directs otherwise, defendant shall respond to the government’s request
within ten days with a notice stating “the specific place or places at which the
defendant claims to have been at the time of the alleged offense.” The deficiencies in
Jones’s alibi witness response do not affect our disposition of this appeal.

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admitted that she was in jail on August 28 and 29, not with Jones, and that she had lied
on direct exam. Jones did not object to this cross exam.

       On appeal, Jones argues that the district court erred in not granting a mistrial sua
sponte because the custodian of the jail record used to impeach Robinson, Sheriff Bill
Ferrel, was a potential rebuttal witness who was not disclosed under Rule 12.1(b).
This was a prejudicial violation of Rule 12.1, Jones argues, because disclosure of the
Sheriff as a rebuttal witness would have prompted the defense “to evaluate the strategy
of advancing an alibi defense” and thereby avoid the devastating impeachment of the
only defense witness. We disagree.

       The government did not violate Rule 12.1(b). That rule requires disclosure of
the names and addresses of the government's rebuttal witnesses, not all its rebuttal
evidence. Thus, Rule 12.1(b) does not apply to the document used to impeach
Robinson. Of course, had Robinson not conceded she was in jail at the time in
question when shown the document at trial, the government might have needed to call
Sheriff Ferrel as a witness in order to introduce the impeaching jail record into
evidence. In that event, the defense could have argued that the Sheriff should be
excluded as an undisclosed rebuttal witness. See Rule 12.1(d); United States v.
Woodard, 671 F.2d 1097, 1099 (8th Cir. 1982) (abuse of discretion standard applies).
But the government’s use of a document to impeach Robinson on cross examination
simply did not bring Rule 12.1(b) into play. Therefore, the district court did not
commit plain error by not granting a mistrial or precluding the cross exam. See United
States v. Causey, 834 F.2d 1277, 1281 (6th Cir. 1987) (plain error standard applies
when trial judge unaware of any Rule 12.1(b) objection).

       2. After he was arrested and advised of his constitutional rights, Jones admitted
to a federal Drug Enforcement Administration agent that he had sold cocaine base in
the past and knew what it looked like. Jones argues that the district court abused its
discretion by admitting this prior bad acts evidence under Rule 404(b) of the Federal

                                           -3-
Rules of Evidence. The district court ruled that the evidence was admissible on the
issue of Jones’s intent and gave the jury an instruction explaining the limited purpose
for its admission.

       Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith.” To be admissible under Rule 404(b), which is a rule of inclusion, Jones’s
admission must be (1) relevant to a material issue, such as intent, (2) proved by a
preponderance of the evidence, (3) greater in probative value than prejudicial effect,
and (4) similar in kind and close in time to the charged offense. See United States v.
Shoffner, 71 F.3d 1429, 1432 (8th Cir. 1995). We reverse a district court’s admission
of Rule 404(b) evidence “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. Brown, 148 F.3d 1003, 1009 (8th Cir. 1998).

       Jones’s admission was relevant to the issue of his intent to distribute cocaine
base, an element of the crime, and the bad acts Jones admitted were factually similar
and close in time to the charged offenses. See United States v. Green, 151 F.3d 1111,
1113-14 (8th Cir. 1998). The district court timely instructed the jury as to the limited
use of this evidence. In these circumstances, we have no difficulty concluding that its
probative value outweighed any unfair prejudice. See Fed. R. Evid. 403. There was
no abuse of discretion in admitting it.

       3. Finally, Jones argues that the disparity between his 324-month sentence and
the 140-month sentence received by his supplier, government witness Tony Brewster,
violates Jones’s Eighth Amendment right to be free from cruel and unusual punishment.
However, disparity between the sentences of coactors in a criminal transaction is not
cruel and unusual punishment under the Eighth Amendment. See United States v.




                                          -4-
Thompson, 51 F.3d 122, 127 (8th Cir. 1995); United States v. Heisinger, 846 F.2d
1168, 1169 (8th Cir. 1988).

      The judgment of the district court is affirmed.

      A true copy.

            Attest:

                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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