                            ___________

                            No. 94-4051
                            ___________

United States of America,       *
                                *
         Plaintiff - Appellee, *
                                * Appeal from the United States
     v.                         * District Court for the
                                * Eastern District of Missouri.
Ivan DeJesus Mejia-Uribe,       *
                                *
         Defendant - Appellant. *

                            ___________

                  Submitted:   September 12, 1995

                      Filed: January 31, 1996
                           ___________

Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON and JOHN R.
     GIBSON, Circuit Judges.
                           ___________

JOHN R. GIBSON, Circuit Judge.


     Ivan DeJesus Mejia-Uribe appeals from his convictions for
possessing cocaine with intent to distribute and conspiring to
distribute cocaine, 21 U.S.C. §§ 841(a)(1), 846 (1988), and
travelling in interstate commerce with intent to promote unlawful
activities, 18 U.S.C. § 1952(a)(3) (1994). The primary issue on
appeal is whether the district court abused its discretion by
admitting evidence of Uribe's 1978 conviction for violating 21
U.S.C. § 846. We hold that although the district court erred in
admitting the 1978 conviction because it was not reasonably related
in time to the events in this case, admission of the evidence was
harmless. Uribe also argues the district court erred in refusing
to require a codefendant to testify after the codefendant indicated
through his attorney an intent to assert his Fifth Amendment
privilege if called as a witness. We affirm the convictions.
     In late 1993, under the direction of Alfonso Ochoa, Uribe met
Scott Baker and began making trips with Baker, travelling from
Houston, Texas, to deliver cocaine to Michael Broom in St. Louis,
Missouri.    In mid-February 1994, Baker and Uribe brought
approximately fifteen kilograms of cocaine to St. Louis in a rented
Honda. Broom sold the cocaine and delivered the money to Uribe and
Baker. About this time, government agents began intercepting the
group's telephone conversations.    Surveillance established that
Broom, driving a Honda rented by Baker, delivered a duffle bag to
the hotel where Uribe and Ochoa were staying in St. Louis. On
March 8, Broom again met Ochoa and Uribe, and they switched
vehicles, with Uribe taking the Honda. Uribe drove away from St.
Louis but was stopped in Fredericktown, Missouri.          Officers
searched the vehicle and seized several bags of money, including
the duffle bag that officers had seen Broom delivering to the
hotel, totaling $306,702. Officers kept the money and released
Uribe.


     Later electronic surveillance revealed Uribe's delivery of
three kilograms of cocaine to Broom at the hotel in St. Louis on
March 20, 1994. On March 26, 1994, officers in St. Louis seized
five kilograms of cocaine from Ochoa. Then, on April 15, 1994,
officers stopped two vehicles outside Houston, Texas. Scott Baker
and his son were in a pickup truck followed by a Mustang owned by
Baker and driven by associates of Baker and Broom. The Mustang
contained 8-1/2 kilograms of cocaine that Baker had acquired in
Houston for delivery to Broom.


     Broom continued to negotiate with Uribe for cocaine and was
arrested on May 4, 1994.      Following his arrest, he agreed to
cooperate with authorities. He tape recorded several conversations
with Uribe, setting up a narcotics transaction. On May 10, 1994,
Broom and an undercover detective traveled to Houston, Texas, where
they met Uribe at a hotel.      They showed Uribe several hundred

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thousand dollars in flash money, and he agreed to return the
following morning with fifteen kilograms of cocaine. Officers
arrested Uribe as he left the hotel.


     At Uribe's trial, Baker1 testified against Uribe and described
many of the events set forth above. In addition, the government
introduced into evidence a certified copy of the judgment and
commitment order, dated October 3, 1978, entered following Uribe's
guilty plea to conspiracy to possess cocaine with intent to
distribute in violation of 21 U.S.C. § 846. The 1978 transactions
involved preliminary negotiations by another person concerning the
distribution of cocaine, Uribe's participation with that person in
final negotiations, and the delivery by both of 979.7 grams of
cocaine to undercover agents on July 6, 1978. The district court
denied Uribe's motion to exclude the 1978 conviction, admitting the
evidence under Federal Rule of Evidence 404(b).          Uribe was
convicted and now appeals.

                                I.


     Uribe argues introduction of his 1978 conviction into evidence
violated Rule 404(b).2   He contends the 1978 conviction was too
remote in time, and the prejudicial effect of admitting the
conviction outweighed its probative value. We review the admission
of other crimes evidence for abuse of discretion. United States v.
Smith, 49 F.3d 475, 478 (8th Cir. 1995) (citing United States v.
Has No Horse, 11 F.3d 104, 106 (8th Cir. 1993)).

     1
      See United States v. Baker, 64 F.3d 439 (8th Cir. 1995).
     2
      Fed. R. Evid. 404(b) provides:

          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 . . . .

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           [O]ther crimes evidence is admissible if it is:
      "`(1) relevant to a material issue; (2) of crimes similar
      in kind and reasonably close in time to the crime
      charged; (3) sufficient to support a jury finding that
      the defendant committed the other crimes; and (4) more
      probative than prejudicial.'" United States v. Sykes,
      977 F.2d 1242, 1246 (8th Cir. 1992) (quoting United
      States v. Yerks, 918 F.2d 1371, 1373 (8th Cir. 1990)).
      Other crimes evidence, however, is not admissible if it
      tends to prove only the defendant's criminal disposition.
      Sykes, 977 F.2d at 1246.


Id.


     Under this test, admissibility of other crimes evidence
depends on the nature and purpose of the evidence.      See United
States v. Spillone, 879 F.2d 514, 519 (9th Cir. 1989), cert.
denied, 498 U.S. 878 (1990). "Questions about `how long is too
long' do not have uniform answers; the answers depend on the theory
that makes the evidence admissible." Id. (quoting United States v.
Beasley, 809 F.2d 1273, 1277 (7th Cir. 1987)).      "[T]here is no
absolute rule regarding the number of years that can separate
offenses. Rather, the court applies a reasonableness standard and
examines the facts and circumstances of each case."3 United States
v. Engleman, 648 F.2d 473, 479 (8th Cir. 1981).


       3
       Based on the facts of the individual cases, courts have
allowed evidence of past crimes with varying degrees of remoteness
to be introduced against defendants. See, e.g., Spillone, 879 F.2d
at 519 (collecting cases); but see United States v. Davis, 657 F.2d
637, 639 (4th Cir. 1981) (not allowing evidence of prior drug
transactions offered to show intent).

     In Spillone, 879 F.2d at 518-19, the district court allowed
admission of a conviction that was more than ten years old. The
Ninth Circuit held that the conviction was not too remote,
considering the similarity of the prior conviction to the charged
offense. Id. at 519. In view of the facts surrounding the case,
the probative value of the evidence was sufficient to overcome the
prejudicial effect, and the prejudicial effect was cushioned by the
limiting instruction given by the district court. Id. at 519-20.

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     In Engleman, 648 F.2d at 476-77, the defendant and his
assistant formed an elaborate conspiracy to collect the proceeds of
a life insurance policy.    Engleman instructed his assistant to
marry the victim, take out a life insurance policy on the victim,
and then Engleman would kill the victim.        Id. at 477.     The
assistant testified that Engleman told her that he knew the plan
would work because he had killed a business associate in 1963 and
split the insurance proceeds with the widow.     Id. at 478. The
trial court also allowed testimony about the 1963 killing and the
payment of insurance following the death. Id. at 477.


     We concluded that the district court did not abuse its
discretion in admitting the evidence about the 1963 killing,
rejecting the argument that thirteen years was too remote. Id. at
479. Considering the intricate facts of the plan and the nearly
identical crimes, we held the evidence about the 1963 murder was
not cumulative of other evidence proving intent. Id.


     We decline to extend our holding regarding the remoteness of
the thirteen-year-old crime in Engleman beyond the facts of that
case. The inquiry regarding the remoteness of a prior conviction
is fact specific. The two crimes in Engleman were very unique,
involving a common scheme.


     Here, although both crimes involved the distribution of
cocaine, the 1978 conviction involved a single sale of cocaine to
undercover agents. In contrast, this case involved a large scale,
ongoing operation that Uribe entered under Ochoa's direction.
Uribe's crimes are not as similar in kind as the crimes in
Engleman, and they are even more remote in time. See Smith, 49
F.3d at 478. Thus, the 1978 conviction was not similar in kind or
reasonably close in time to the instant charges. Id.




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     Further, the 1978 conviction was more prejudicial than
probative.4 Smith, 49 F.3d at 478. The government introduced the
1978 conviction to establish knowledge and intent. However, the
government also introduced substantial evidence of Uribe's
participation in the drug conspiracy. Several FBI agents testified
about Uribe's drug trafficking activities. Baker and Bloom, both
coconspirators, testified about the nature of the conspiracy and
Uribe's part in it. Thus, the jury received overwhelming, highly
probative evidence of Uribe's knowledge and intent, as it related
to this crime. The significance of the 1978 conviction pales in
comparison with the other evidence produced by the government to
show knowledge and intent, and its introduction was more
prejudicial than probative.


     Introduction of the 1978 conviction offered little, if any,
probative value beyond the tendency to show that Uribe was the type
of person with a propensity to commit this type of crime. Rule
404(b) prohibits the district court from admitting this type of
other crimes evidence.    Thus, we hold that the district court
abused its discretion in allowing introduction of the 1978
conviction. See Has No Horse, 11 F.3d at 106 (reversing conviction
because introduction of other crimes evidence tended only "to show
a propensity to commit such acts"); Davis, 657 F.2d at 639.5

    4
     As a general matter, the balancing of probative value against
the prejudicial impact of a particular item of evidence rests
primarily within the discretion of the district court.      United
States v. Escobar, 50 F.3d 1414, 1421 (8th Cir. 1995) (citing
United States v. O'Connell, 841 F.2d 1408, 1423 (8th Cir. 1988),
cert. denied, 488 U.S. 1011 (1989)).
        5
        The district court in Davis, 657 F.2d at 639, allowed
testimony regarding previous drug transactions involving the
defendant, beginning eleven years before and ending six years
before the charged crime.     In reviewing the district court's
ruling, the Fourth Circuit stated: "Rules 403 and 404 should have
been applied by the trial court to exclude the testimony of
sales . . . so remote in time and so possessed of a propensity to
prejudice. We reject the argument that the prior sales tended to
prove . . . `intent' to commit the present offenses."         Id.

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     However, the government's case against Uribe was overwhelming.
United States v. Nichols, 808 F.2d 660, 663 (8th Cir.), cert.
denied, 481 U.S. 1038 (1987). The 1978 conviction was cumulative
of other evidence establishing Uribe's knowledge and intent to
participate in the conspiracy. Therefore, introduction of the 1978
conviction did not have "substantial and injurious effect or
influence in determining the jury's verdict." United States v.
Mihm, 13 F.3d 1200, 1205 (8th Cir. 1994) (citations omitted).
Thus, introduction of the 1978 conviction into evidence was
harmless error. See Smith, 49 F.3d at 478; Nichols, 808 F.2d at
663.

                               II.


     Uribe   argues  that   the   district   court  violated   his
constitutional right to confront witnesses by not requiring
codefendant Ochoa to testify at trial. Uribe served Ochoa with a
writ of habeas corpus ad testificandum in an attempt to compel
Ochoa to testify. Ochoa's attorney stated on the record that if
called Ochoa would assert his Fifth Amendment privilege against
self incrimination. Uribe contends that Ochoa waived his Fifth
Amendment privilege by pleading guilty to charges arising from the
conspiracy. The government responds that, although Ochoa pleaded
guilty to federal charges in the Eastern District of Missouri,
Ochoa's plea had no impact on other potential charges, and at the
time of Uribe's trial, two counts of Ochoa's indictment had not
been dismissed.


     The right to compulsory process is not absolute.    Wright v.
Lockhart, 914 F.2d 1093, 1097 (8th Cir. 1990), cert. denied, 498
U.S. 1126 (1991). Before a defendant is entitled to compulsory



However, because of the conclusive evidence supporting conviction,
the court found the error in admitting the evidence harmless. Id.
at 640.

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process, the defendant must show that the testimony of the witness
is both material and favorable to the defense. Id. (quoting United
States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982)).


     Uribe offered no explanation, at trial or on appeal, of how
Ochoa's proposed testimony was material or favorable to his
defense.   Without such a showing, the district court was not
required to consider whether Ochoa had waived his Fifth Amendment
privilege, and it was not required to compel Ochoa to testify.


     Further, by pleading guilty to federal charges in Missouri,
Ochoa did not waive his Fifth Amendment privilege as it related to
other charges. See United States v. Roberts, 503 F.2d 598, 600
(9th Cir. 1974), cert. denied, 419 U.S. 1113 (1975). Uribe's Sixth
Amendment "right to compulsory process does not include the right
to compel a witness to waive his or her Fifth Amendment privilege
against self incrimination." United States v. Robaina, 39 F.3d
858, 862 (8th Cir. 1994) (addressing compulsory process and
immunity issues); accord United States v. Carr, 67 F.3d 171, 176
(8th Cir. 1995) (upholding district court's refusal of defendant's
request to require witness asserting Fifth Amendment privilege to
testify).   See also Roberts, 503 F.2d at 600 (holding that a
defendant may not call a codefendant who has indicated he will
assert his privilege against self incrimination, when the
codefendant has pleaded guilty but still faces other undismissed
charges).


     We affirm Uribe's conviction.




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A true copy.


     Attest:


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




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