                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                      ___________

                                      No. 00-1699
                                      ___________

United States of America,             *
                                      *
            Plaintiff-Appellee,       *
                                      *
     v.                               * Appeal from the United States
                                      * District Court for the
Gregory Hill,                         * District of Minnesota.
                                      *
            Defendant-Appellant.      *
                                 ___________

                               Submitted: February 14, 2001

                                    Filed: May 1, 2001
                                     ___________

Before RICHARD S. ARNOLD, LAY, and HANSEN, Circuit Judges.
                           ___________

LAY, Circuit Judge.

        Gregory Hill appeals his conviction for several crimes, including possession with
intent to distribute cocaine, felon in possession of a firearm, and possession of a firearm
after a misdemeanor conviction for domestic violence. Hill alleges: (1) the district
court’s1 admission of a past crime under Federal Rule of Evidence 404(b) was
erroneous, (2) the prosecutor exercised a peremptory strike against an African-



      1
      The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota, presiding.
American juror for racially discriminatory reasons, and (3) the evidence was not
sufficient to support a conviction. We reject Hill’s arguments and affirm his conviction.

                                    I. Background

       Belden Coleman, a crack addict and paid informant for the Minneapolis Police
Department (MPD), lived in an apartment with another crack user named Angela
Ferris. Coleman contacted agents of the MPD, informing them that a drug dealer had
stayed the night at Ferris’ apartment. Based upon this information, the MPD began
surveillance outside the building where Ferris resided and applied for a warrant to
search Ferris’ apartment. When attempting to execute the warrant, MPD officers saw
Hill in the parking lot. Based upon Coleman’s identification of Hill as the drug dealer
who was staying in Ferris’ apartment, the MPD officers arrested Hill. The subsequent
search of the apartment revealed a bag containing guns and drugs, which Coleman had
identified as Hill’s.

       Prior to trial, the Government informed Hill that it intended to introduce
evidence of Hill’s prior drug conviction under Federal Rule of Evidence 404(b). The
Government alleged that such evidence was appropriate to show Hill’s intent, arguing
that intent was at issue because Hill’s defense was “basically that the defendant knew
nothing of what was in the bedroom.” (Pretrial Hearing Tr. at 10.) Hill, relying on a
line of cases beginning with United States v. Jenkins, 7 F.3d 803 (8th Cir. 1993),
asserted that he would not make his intent an issue in the trial: “We do not intend to
put the defendant’s thoughts or mental status into contest at all in the case . . . . We
intend to limit the scope of our defense so as to not raise any issue concerning mental
state.” (Pretrial Hearing Tr. at 12.) Eventually, the trial court allowed the introduction
of the past crime under Rule 404(b) because Hill’s defense was essentially: (1) a
general denial, which required the Government to prove all the elements of the crime
including intent, and (2) an allegation that his presence in the parking lot was fortuitous


                                           -2-
– he was in “the wrong place at the wrong time.” (Trial Tr. at 455.) The district court
believed intent was at issue and admitted the evidence of the past crimes.

                                     II. Discussion

      A. Admission of Hill’s Past Crime Under Rule 404(b)

       When applying Rule 404(b),2 a court must first ask whether the past crime
evidence is “probative of a material issue other than character.” Huddleston v. United
States, 485 U.S. 681, 686 (1988). If the evidence goes to an issue other than character,
such as intent, motive, etc., the court then asks whether Federal Rule of Evidence
402’s relevancy requirement is met and whether the probative value of the evidence is
substantially outweighed by the prejudicial effect under Federal Rule of Evidence 403.
See Huddleston, 485 U.S. at 686-87.3 While we generally review the admission of
Rule 404(b) evidence for abuse of discretion, the admission of such evidence that is
“premised upon an erroneous interpretation of the law is an abuse of discretion.”
United States v. Thomas, 58 F.3d 1318, 1321 (8th Cir. 1995).




      2
          Federal Rule of Evidence 404(b) provides in part:

      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 as proof of motive,
      opportunity, intent, preparation, plan, knowledge, identity, or absence of
      mistake or accident . . . .
      3
       The Eighth Circuit has enumerated other elements in Rule 404(b) analysis, such
as whether the past crimes are similar in kind and time to the issue in question. See
United States v. Turner, 104 F.3d 217, 222 (8th Cir. 1997). Hill’s appeal, however,
does not challenge these elements.

                                           -3-
       The issue we face is whether, given Hill’s attempt to circumscribe his defense,
the district court abused its discretion by admitting the past crime. This is an issue that
has divided the circuits and has led to a good deal of confusion. See 2 J. Weinstein &
M. Berger, Weinstein’s Federal Evidence § 404.22(1)(b) n.13 (Joseph M. McLaughlin
ed., 2d ed. 2000) (listing the different circuit approaches).

        In Jenkins, 7 F.3d 803, this circuit adopted the rule in United States v. Colon,
880 F.2d 650 (2d Cir. 1989), holding that a defendant who “unequivocally” claims not
to have “commit[ted] the acts charged against him” has not placed intent into issue such
that his past crimes can be admitted to show intent. Jenkins, 7 F.3d at 807. Although,
strictly speaking, a plea of not guilty requires the Government to prove the defendant’s
intent to commit the crime, the rationale for this rule is that “in some circumstances, the
nature of a defense put forth by the defendant may reveal that knowledge and intent,
while technically at issue, are not really in dispute.” Colon, 880 F.2d at 656
(quotations omitted). Past crimes evidence showing intent would be appropriate if the
defendant challenges intent, such as when a defendant claims he “did the act innocently
or mistakenly,” but not where the defendant claims he “did not do the charged act at
all.” Id. at 657.4

      We believe, however, that subsequent Supreme Court decisions may have
overruled the Jenkins line of cases.5 In United States v. Crowder, 87 F.3d 1405, 1409
(D.C. Cir. 1996) (Crowder I), the D.C. Circuit, relying on the Second Circuit’s


      4
        Subsequent cases in this circuit have limited the Jenkins rule. See e.g., Thomas,
58 F.3d at 1322. (“Jenkins merely stands for the unremarkable proposition that Rule
404(b) evidence is not admissible when the defense is circumscribed with sufficient
clarity to avoid raising the issue of mental state.”) (quotations omitted).
      5
       This court noted the subsequent Supreme Court precedent in United States v.
Spence, 125 F.3d 1192, 1194 n.2 (8th Cir. 1997), but did not have to reach the issue
of whether the Supreme Court precedent overruled Jenkins.

                                           -4-
approach, held that “a defendant’s offer to concede knowledge and intent” eliminates
the need for Rule 404(b) past crime evidence offered to prove defendant’s intent. The
Supreme Court granted the Government’s petition for a writ of certiorari on the
question of whether a defendant may foreclose Rule 404(b) evidence relevant to intent
by stipulating that element of the offense. The Supreme Court reversed and remanded
Crowder I for further consideration in light of Old Chief v. United States, 519 U.S. 172,
117 S. Ct. 644, 136 L.Ed.2d 574 (1997). See United States v. Crowder, 519 U.S. 1087
(1997).

       The defendant in Old Chief was accused of being a felon in possession of a
firearm. Old Chief, 519 U.S. at 174. The defendant sought to avoid the Government’s
introduction of his past assault felony by stipulating to his felon status. Id. at 175. The
Government refused to stipulate and the evidence of the past crime was admitted. On
appeal, the Supreme Court had to determine whether the evidence of the past crime was
properly admitted in the face of defendant’s offer to stipulate to his status as a felon.
Old Chief’s holding rested on Federal Rule of Evidence 403, which authorizes trial
courts to exclude evidence if its “probative value is substantially outweighed by the
danger of unfair prejudice.” Before discussing Rule 403, however, the Court had to
deal with the defendant’s argument that his offer to stipulate to the past crime made any
evidence of the past crime irrelevant, and thus inadmissable under Rule 402. See Fed.
R. Evid. 402 (“Evidence which is not relevant is not admissible.”). The Supreme Court
rejected this argument. The Court held the relevance of evidence does not depend on
whether the “fact to which the evidence is directed” is in dispute. Old Chief, 519 U.S.
at 179 (quotations omitted).

      Despite the relevance of the evidence, the Supreme Court ruled that it was
inadmissable under Rule 403. The Court explained that the district court was presented
with two pieces of evidence: the defendant’s offer to stipulate to his status as a felon,
and the official record of defendant’s conviction that the prosecution sought to
introduce. The Court noted that each piece of evidence had nearly identical probative

                                           -5-
value – each was an abstract statement of defendant’s status as a felon. See id. at 190.
But unlike the stipulation, the official record of defendant’s conviction included a
substantial risk that the jury would be prejudiced by knowing the defendant was
involved in a past assault. See id. at 185. Since the probative value of each piece of
evidence was identical, and the prejudicial effect of the official record was much
greater than the stipulation, the Supreme Court held that the record of the defendant’s
past conviction could not be introduced in the face of the defendant’s offer to stipulate.
Id. at 186, 191-92.

        The majority recognized, however, that its decision was a narrow one and did
not eliminate the standard rule that “a criminal defendant may not stipulate or admit his
way out of the full evidentiary force of the case as the Government chooses to present
it.” Id. at 186-87. The key distinction between the facts of Old Chief and the general
rule was that Old Chief involved “an abstract premise, [i.e., defendant’s status as a
felon,] whose force depends on going precisely to a particular step in a course of
reasoning.” Id. at 187. Unlike an abstract status as a felon, conventional evidence
“tells a colorful story with descriptive richness . . . . [T]hus [it] has a force beyond any
linear scheme of reasoning.” Id.

        On remand, the D.C. Circuit believed that the original holding of Crowder I was
overruled by Old Chief. See United States v. Crowder, 141 F.3d 1202, 1206 (D.C. Cir.
1998) (en banc) (Crowder II). As the court explained, Rule 404(b) acts as a theory of
admissibility, enunciating permissible inferences for which past crimes can be admitted,
such as intent or motive. Id. Since Old Chief squarely holds that evidence does not
lose its relevance under Rule 401 simply because a defendant offers to stipulate to the
fact at issue, it follows that Rule 404(b) evidence does not lose its relevance toward a
permissible inference simply because the defendant offers to stipulate to that inference.
Id. Crowder II also held the evidence could not be excluded on Rule 403 grounds.
Each of the Justices agreed in Old Chief that a stipulation does not have the same
“evidentiary value as the government’s proof,” Id. at 1207, but the Crowder I decision

                                            -6-
forced the government to accept an “abstract stipulation[]” over “concrete evidence of
the defendants’ actions giving rise to natural and sensible inferences.” Id. at 1208.
Given Old Chief’s recognition of the different evidentiary effect of a stipulation and
actual evidence, the D.C. Circuit believed that neither Rule 402 nor 403 barred the
introduction the Rule 404(b) evidence.

       Despite the vigorous dissent in Crowder II, several other circuits have
recognized that Old Chief eliminates the possibility that a defendant can escape the
introduction of past crimes under Rule 404(b) by stipulating to the element of the crime
at issue. See United States v. Williams, 238 F.3d 871, 876 (7th Cir. 2001) (“We
believe that . . . Old Chief counsels that a defendant’s offer to stipulate to an element
of an offense does not render inadmissable the prosecution’s evidence of prior crimes
to prove elements such as knowledge and intent.”); United States v. Bilderbeck, 163
F.3d 971, 977-78 (6th Cir. 1999); United States v. Queen, 132 F.3d 991, 997 (4th Cir.
1997).

       In line with Crowder II, we believe that Old Chief has overruled, or at least
substantially limited, the Jenkins’ line of cases. Hill’s attempt to remove intent as an
issue in the case did not lift the Government’s burden of proving Hill’s intent.6 As the
court in Crowder II noted, Rule 404(b) acts as a theory of admissibility, specifying
purposes for which past evidence is admissible. Crowder II, 141 F.3d at 1206. Since
intent is one of those valid purposes, and the parties do not dispute that the past crime
is relevant to show Hill’s intent, the admission of the past crime meets Rule 404(b)’s
relevancy test.




       6
        We note that Hill offered to stipulate to the element of intent during trial. (Trial
Tr. at 390.) Further, Hill circumscribed his defense to eliminate intent as a serious
issue in the case.

                                            -7-
         As we noted earlier, however, evidence that meets Rule 404(b)’s relevancy test
is still subject to Rule 403 balancing. See Huddleston, 485 U.S. at 687-88. Given the
Supreme Court’s decision in Old Chief, we believe this evidence meets Rule 403’s
balancing test. Hill’s past crime was not introduced to show his status as a felon, as
was the past crime in Old Chief. Thus, the rationale for the limited rule of Old Chief
disappears, as Hill’s stipulation “cannot give the Government everything the evidence
could show.” Crowder II, 141 F.3d at 1207 (quotations omitted). The “evidentiary
account” of Hill’s past crimes “can accomplish what no set of abstract statements ever
could” since “[a] syllogism is not a story, and a naked proposition in a courtroom may
be no match for the robust evidence that would be used to prove it.” Old Chief, 519
U.S. at 187, 189. The Court’s concern that jurors who hear a stipulation “may well
wonder what they are being kept from knowing” applies in this case. Id. at 189.
Evidence of Hill’s past crimes goes to his intent to commit the drug crimes, an element
that is “at the core of the offenses charged in the case[] before us.” See Crowder II,
141 F.3d at 1207. Contrast this to the proof of status at issue in Old Chief that is
“wholly independent of the concrete events of the charged crime.” Id. (quoting Old
Chief, 519 U.S. at 1207) (quotations omitted).

      Admittedly, the past crimes evidence is remote in time from the criminal acts
with which Hill was charged. Thus, the concerns of the Old Chief Court are not as
fully present as they would be if Hill stipulated to the issue of intent to render
inadmissable the prosecution’s direct evidence of his intent to commit the charged
crime. But as the Crowder II court noted: “[e]vidence about what the defendant said
or did at other times can be a critical part of the story of a crime, and may be
introduced to prove what the defendant was thinking or doing at the time of the
offense.” Crowder II, 141 F.3d at 1207. In enacting Rule 404(b), Congress
determined that past crime evidence can be a part of the story of defendant’s criminal
behavior, so long as it is used to prove some issue, such as intent, other than the
defendant’s criminal predisposition to commit criminal acts. See Bilderbeck, 163 F.3d
at 977 n.10 (“The intent with which a person commits an act on a given occasion can

                                          -8-
many times best be proven by testimony or evidence of his [prior] acts . . .”). While
Old Chief’s concerns about forcing the Government to accept a defendant’s stipulation
of an element of a crime in place of actual evidence may not strike with the same force
in the case of Rule 404(b) evidence, such evidence is still related to the story of the
defendant’s criminality in a way that the pure status evidence in Old Chief was not.
See Crowder II, 141 F.3d at 1208.

       For these reasons, we believe the admission of Rule 404(b) evidence against
Hill was not error. The evidence was relevant to show Hill’s intent, thus it passed
Rule 404(b)’s relevancy test. Based upon the Supreme Court’s decision in Old Chief,
this evidence also satisfied Rule 403’s balancing test. We therefore affirm the district
court’s admission of this evidence.

      B. Exclusion of African-American Juror

        Hill next argues that the Government improperly used peremptory challenges to
strike an African-American juror based on her race in violation of Batson v. Kentucky,
476 U.S. 79 (1986). Under Batson, a party alleging the prosecution’s racially
discriminatory use of peremptory challenges must first make a prima facie case of
discrimination. Purkett v. Elem, 514 U.S. 765, 767 (1995). This can be done by
showing circumstances that give rise to a reasonable inference of racial discrimination.
See United States v. Battle, 836 F.2d 1084, 1085 (8th Cir. 1987). The burden then
shifts to the Government to articulate a race-neutral reason for the use of the challenge.
Purkett, 514 U.S at 765. If the Government tenders such an explanation, the court must
then determine whether purposeful racial discrimination has been proven or whether
the prosecutor’s explanation was mere pretext. Id. The district court’s findings
regarding pretext are findings of fact, which we review for clear error. Devoil-El v.
Groose, 160 F.3d 1184, 1186 (8th Cir. 1998).




                                           -9-
       The Government used its peremptory challenges to remove two African-
Americans from the jury pool. Hill did not challenge the removal of the first, since she
had two brothers who were in prison. Hill did challenge the second removal. The
prosecutor’s reason for dismissing the juror was the juror’s participation in church
activities during her leisure time. The Government explained that the prosecutor
believed that this juror might be overly sympathetic toward criminal defendants. The
court concluded that the Government’s actions were not discriminatory. Defendants
did not argue to the district court that similarly situated white jurors were not
challenged. The district court was in the best position to evaluate the truthfulness of
the asserted explanation of the prosecutor, and Hill has not shown that the court clearly
erred in rejecting his challenge. See United States v. Martinez, 168 F.3d 1043, 1047
(8th Cir. 1999) (prosecutor’s dismissal of only minority juror not clearly erroneous
when proffered reason was juror’s marital status, age, and that her “body position and
eye contact during voir dire suggested an attitude unfavorable to the government.”);
United States v. Seals, 987 F.2d 1102, 1108-09 (5th Cir. 1993) (holding prosecutor’s
dismissal of potential juror because of extensive Bible reading in free time was an
appropriate race-neutral explanation.).

      C. Sufficiency of the Evidence

      Hill next argues that there was insufficient evidence to support his conviction.
When reviewing the sufficiency of the evidence supporting a guilty verdict, we ask
whether the evidence, when viewed in the light most favorable to the Government,
could lead a rational trier of fact to find each of the elements of the crime beyond a
reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).

       Hill points to inconsistencies between the testimony of the crack-addicted
witnesses and the police, as well as the inherent unreliability of the crack users. While
there may well be a discrepancy, that does not change the fact that two eyewitnesses
identified Hill as the drug dealer who stayed the night in Ferris’ apartment. Hill’s

                                          -10-
arguments amount to an attack on the credibility of Ferris and Coleman. Hill’s lawyers
had an opportunity to attack the witnesses’ credibility, and the jury nevertheless
accepted their eyewitness accounts. Witness credibility is within the province of the
jury, which we are not allowed to review. See Burks v. United States, 437 U.S. 1, 16-
17 (1978) (holding appellate court is without power to reverse a jury’s credibility
evaluation).

      For these reasons we believe that the evidence was sufficient to support Hill’s
conviction.

                                    III. Conclusion

        We hold that the district court did not err when it introduced Hill’s past drug
crimes into evidence. We further believe that the district court did not clearly err when
it rejected Hill’s Batson challenge. Finally, we hold that the evidence was sufficient
to support the conviction. We therefore AFFIRM Hill’s conviction.

      A true copy.

             Attest:

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




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