                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-1574
                                   ___________

United States of America,               *
                                        *
             Appellee,                  * Appeal from the United States
                                        * District Court for the
      v.                                * Eastern District of Missouri.
                                        *
Cameron Foster,                         *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: September 12, 2003

                                  Filed: September 23, 2003
                                   ___________

Before MORRIS SHEPPARD ARNOLD, BOWMAN, and MELLOY, Circuit Judges.
                          ___________

BOWMAN, Circuit Judge.

       Cameron Foster appeals his February 21, 2002 conviction on one count of
possession of cocaine base with intent to distribute. See 21 U.S.C. § 841(a)(1)
(2000). Foster contends the District Court1 abused its discretion by admitting into
evidence a prior conviction for selling cocaine base and that the Eighth Circuit Model
Jury Instruction on reasonable doubt violates his right to due process. We affirm.



      1
       The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
       On April 2, 2002, Officer Michael Ehnes arrested Foster after observing what
Officer Ehnes believed to be a drug transaction and after finding a paper bag with
approximately 22 grams of cocaine base (crack cocaine) in close proximity to Foster's
vehicle. At trial Foster did not dispute that a paper bag of crack cocaine was found
lying on the street at a close distance to where Foster was sitting in his car.

      Prior to trial the government brought a motion in limine to admit into evidence
Foster's 1993 conviction for selling crack cocaine. The 1993 conviction arose out of
an undercover sting operation in which Foster was arrested after attempting to sell
crack cocaine to undercover police officers on the same city block as the site of his
2002 arrest. The District Court granted the government's motion, and at trial the
prior conviction was admitted into evidence. After receiving instructions that
included the Eighth Circuit Model Jury Instruction on reasonable doubt, see Eighth
Circuit Manual of Model Jury Instructions—Criminal, Instruction 3.11 (2002), the
jury convicted Foster of one count of possession with intent to distribute cocaine
base. The District Court sentenced Foster to a term of 162 months.

       First, Foster argues the District Court abused its discretion by admitting under
Rule 404(b) of the Federal Rules of Evidence his 1993 conviction for selling cocaine
base. We disagree. Rule 404(b) is a rule of inclusion; assuming that the other tests
for admissibility are satisfied (see infra p. 4), evidence of a prior crime should be
excluded only when its sole relevance goes to the character of the defendant. See
United States v. Jackson, 278 F.3d 769, 771 (8th Cir. 2002). Rulings admitting
evidence under Rule 404(b) are reviewed under an abuse of discretion standard and
this court "will reverse 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. Ruiz-Estrada, 312 F.3d 398, 403 (8th Cir. 2002) (quoting
United States v. Brown, 148 F.3d 1003, 1009 (8th Cir. 1998), cert. denied, 525 U.S.
1169 (1999)), cert. denied, 123 S. Ct. 1766 (2003). Absent a clear abuse of



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discretion, we will not disturb an evidentiary ruling by a district court. Suggs v.
Stanley, 324 F.3d 672, 678 (8th Cir. 2003).

       Because Foster denied both possessing the paper bag and engaging in an illegal
drug transaction, he claims neither his knowledge nor his intent was at issue, thereby
making his prior conviction inadmissible inasmuch as it was not relevant to a material
issue. This argument fails. Foster's knowledge and intent were in fact matters as to
which the government had the burden of proof at trial. See United States v. Thomas,
58 F.3d 1318, 1322 (8th Cir. 1995) (requiring a "complete lack of dispute" with
respect to knowledge or intent to prevent admission of prior criminal convictions).

       Foster's denial of any wrongdoing closely resembles a general-denial defense
or a "mere presence" defense. Both defenses have long been recognized as placing
intent or state of mind into question and allowing the admission of prior criminal
convictions to prove both knowledge and intent. See, e.g., Ruiz-Estrada, 312 F.3d
at 403 (observing that mere-presence defense places knowledge and intent at issue),
Jackson, 278 F.3d at 771 (holding that a general-denial defense places knowledge and
intent at issue). The government needed to prove that Foster possessed the drugs
Officer Ehnes found, and part of that burden required a showing that Foster knew the
drugs were in the bag and that he had the intent to control the contents of the bag.
See Thomas, 58 F.3d at 1323. Foster's prior conviction for selling crack cocaine on
the very same city block tends to show not only knowledge of drugs and their illicit
distribution, but of the area as well. See Brown, 148 F.3d at 1010 (allowing
admission of prior cocaine-trafficking conviction in Michigan as relevant to rebut the
defense of naivete when charged with cocaine-trafficking conspiracy that originated
in Michigan). Foster's prior conviction also helped to show his intent, both the intent
to control the crack cocaine in the paper bag, see Thomas, 58 F.3d at 1323 (prior
conviction helped establish intent to control cocaine found in an apartment) and his
intent to distribute it, see United States v. Johnson, 318 F.3d 821, 823 (8th Cir. 2003)
(prior drug conviction relevant when intent to distribute is an essential element of the

                                          -3-
crime). The prior conviction therefore was relevant as proof of Foster's possession
of the paper bag and its unlawful contents and as proof of his intent to distribute the
possessed narcotics. See Ruiz-Estrada, 312 F.3d at 403–404; Jackson, 278 F.3d at
771.

       In addition to being relevant to material issues at trial, the prior conviction also
satisfies the other tests for admission under Rule 404(b), see Ruiz-Estrada, 312 F.3d
at 403: (1) it is similar, indeed virtually identical, to the crime charged; (2) the 1993
conviction was not so remote in time as to be inadmissible at trial in 2002, see United
States v. Williams, 308 F.3d 833, 837 (8th Cir. 2002) (twenty year-old conviction for
armed robbery not too remote in time); (3) the 1993 conviction resulted from a guilty
plea and Foster does not argue that the evidence was insufficient to support his plea;
and finally (4) as the District Court found, any danger of unfair prejudice from
admitting the prior conviction does not outweigh its probative value, see Fed. R.
Evid. 403 (2000).

       Foster's prior conviction satisfies every test for admissibility. We therefore
must reject Foster's claim that the District Court abused its discretion in admitting the
prior conviction into evidence.

       Next, Foster argues that Eighth Circuit Model Jury Instruction 3.11 violates
due process by impermissibly lowering the government's burden of proof.
Specifically he challenges the "mere possibility of innocence" language of the
instruction.2 We already have upheld the instruction in several cases making the same


      2
          Model Jury Instruction 3.11 states:

      A reasonable doubt is a doubt based upon reason and common sense,
      and not the mere possibility of innocence. A reasonable doubt is the
      kind of doubt that would make a reasonable person hesitate to act. Proof
      beyond a reasonable doubt, therefore, must be proof of such a

                                           -4-
claim Foster now makes. See, e.g., United States v. Rosso, 179 F.3d 1102, 1104–05
(8th Cir. 1999); United States v. Gibson, 105 F.3d 1229, 1234 (8th Cir. 1997). These
cases have established the law of the circuit on this point. We are not free to overturn
them (only the Court en banc could do so), and they require that we reject Foster's
claim that the instruction violates his right to due process of law.

      For the reasons stated, we affirm the judgment of the District Court.
                      ______________________________




      convincing character that a reasonable person would not hesitate to rely
      and act upon it. However, proof beyond a reasonable doubt does not
      mean proof beyond all possible doubt.

Eighth Circuit Manual of Model Jury Instructions—Criminal, Instruction 3.11 (2002).


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