                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-1202
                                   ___________

United States of America,             *
                                      *
             Appellee,                *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * District of North Dakota
Martin Gilbert Ornelas, also known    *
as Jose Luis Melgoza-Rodriguez,       *     [UNPUBLISHED]
                                      *
             Appellant.               *
                                 ___________

                          Submitted: June 24, 2002

                               Filed: June 28, 2002
                                    ___________

Before McMILLIAN, BOWMAN, and BYE, Circuit Judges.
                         ___________

PER CURIAM.

      Martin G. Ornelas appeals from the final judgment entered in the District
     1
Court for the District of North Dakota after a jury found him guilty of (1) conspiring
to possess with intent to distribute--between June 1 and July 17, 2001--over 500
grams of a mixture containing methamphetamine, in violation of 21 U.S.C. § 846; and
(2) possessing with intent to distribute on July 2, 2001, over 500 grams of a mixture


      1
       The Honorable Rodney S. Webb, Chief Judge, United States District Court for
the District of North Dakota.
containing methamphetamine, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a).
The district court sentenced Ornelas to 240 months imprisonment and 10 years
supervised release. For reversal, Ornelas argues that coconspirator Santiago
Gonzalez’s testimony about a June 1, 2001 transaction was a separate crime from the
charged conspiracy and thus should have been excluded as prior-bad-acts evidence
under Fed. R. Evid. 404. He also argues that the evidence was insufficient to support
his convictions. For the reasons discussed below, we affirm the judgment of the
district court.

       We conclude that the challenged testimony did not implicate Rule 404, because
the June 1 transaction was within the time frame of the charged conspiracy and in fact
was one of the charged overt acts. See United States v. Aranda, 963 F.2d 211, 213-14
(8th Cir. 1992) (evidence of acts committed by defendant during time frame of
conspiracy and in furtherance of it is not evidence of other crimes, but rather is
evidence of very crime charged).

        We also conclude that the evidence, viewed most favorably to the verdict, was
sufficient to support Ornelas’s convictions on both counts. See United States v.
Johnson, 285 F.3d 744, 749-50 (8th Cir. 2002) (standard of review). Gonzalez
testified that Ornelas contacted him about selling methamphetamine, that the two
agreed to sell a large quantity of methamphetamine to a confidential informant (CI),
that Ornelas supplied the methamphetamine for the June 1 and July 2 transactions
while Gonzalez communicated with the CI and made the deliveries, and that Ornelas
had hidden the methamphetamine involved in the July 2 transaction in the bumper of
the car which he and Gonzalez were using to travel to Gonzalez’s meeting spot with
the CI. Further, telephone records showed calls made between Ornelas, Gonzalez,
and the CI on July 2. See United States v. Barrow, 287 F.3d 733, 736 (8th Cir. 2002)
(elements of crime of possession with intent to distribute are knowing possession of
drug and intent to distribute it); United States v. Hester, 140 F.3d 753, 760 (8th
Cir. 1998) (to establish drug conspiracy, government must prove existence of

                                         -2-
agreement between two or more persons to violate federal narcotics law, defendant’s
knowledge of agreement, and defendant’s voluntary participation in agreement).

      Accordingly, we affirm.

      A true copy.

            Attest:

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




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