                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-3941
                                   ___________

United States of America,               *
                                        *
             Appellee,                  * Appeal from the United States
                                        * District Court for the
      v.                                * Northern District of Iowa.
                                        *
Edward Lee Williams,                    *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: May 16, 2003
                                 Filed: August 19, 2003
                                  ___________

Before BOWMAN and BYE, Circuit Judges, and ERICKSEN,1 District Judge.
                           ___________

BOWMAN, Circuit Judge.

      Edward Lee Williams raises five issues in this appeal of his conviction for one
count of aiding and abetting the distribution of cocaine base. We affirm.

      The charge against Williams arose from a controlled purchase of cocaine base
on July 18, 2001. Special Agent Brugman of the Iowa Division of Narcotics
Enforcement and a confidential informant, James Kimpton, arranged to buy the
cocaine base from Williams's sister, Emma, at her apartment in Cedar Rapids. After

      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota, sitting by designation.
entering the apartment, Brugman asked Williams's sister for one-quarter ounce of
cocaine base. This discussion and the ensuing conversation between Brugman,
Kimpton, and Williams's sister were audio-taped by the Government. Williams's
sister left and re-entered the apartment several times during the transaction. At one
point, she used Brugman's cell phone to call her source for the drugs; after placing
that call, she told Brugman that her brother would come inside to let her know when
the source had arrived at the apartment. Shortly thereafter, Williams's sister left the
apartment and returned with a plastic bag containing one-eighth of one ounce of
cocaine base. A few minutes later, she met her brother in the hallway immediately
outside the apartment. Brugman followed her but stopped at the apartment doorway,
which was approximately eight-to-ten feet from where Williams and his sister stood.
From there, Brugman saw Williams extend his arm and his sister take a small plastic
bag containing 1.42 grams of cocaine base, which she then carried back to the
apartment in the palm of her hand. The charge against Williams was based on this
exchange. Williams never came any closer to Brugman nor did he enter the
apartment.

      We now address the five issues raised by Williams.

                      I. Brugman's Identification of Williams

       Brugman testified at trial that on the day after the controlled purchase, he
viewed a copy of a prior arrest photograph of Williams and identified Williams as the
person who handed the cocaine base to his sister. Trial Tr. at 92. Williams contends
that Brugman's pretrial identification of Williams was overly suggestive and therefore
should have been suppressed by the District Court.2 We review de novo. United
States v. Johnson, 56 F.3d 947, 953 (8th Cir. 1995).


      2
        The Honorable Mark W. Bennett, Chief Judge, United States District Court
for the Northern District of Iowa.

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       A two-part test governs the admissibility of identification evidence. First, we
determine if the identification procedures were "impermissibly suggestive." Simmons
v. United States, 390 U.S. 377, 384 (1968). If they were, we examine the totality of
the circumstances to determine whether the suggestive procedures created "a very
substantial likelihood of irreparable misidentification." Simmons, 390 U.S. at 384;
see also Manson v. Brathwaite, 432 U.S. 98, 113 (1977) (reaffirming totality-of-
circumstances standard rather than exclusionary rule). The Government concedes
that the identification procedure used by Brugman was impermissibly suggestive. Br.
of Appellee at 10. We therefore move to the second part of the test—the likelihood
of misidentification—in which we consider "the opportunity of the witness to view
the criminal at the time of the crime, the witness' degree of attention, the accuracy of
his prior description of the criminal, the level of certainty demonstrated at the
confrontation, and the time between the crime and the confrontation." Manson, 432
U.S. at 114. We have balanced these five factors and conclude there was very little
likelihood of misidentification. Brugman viewed Williams from eight-to-ten feet
away in the hallway of the apartment during daytime hours. Although Brugman saw
Williams only for a moment, there is no evidence of poor lighting or an obstructed
view. A twenty-year veteran of the Iowa Division of Narcotics Enforcement who is
frequently involved in controlled purchases with persons whom he has never seen,
Trial Tr. at 81, 150–51, Brugman surely employed his highest degree of attention
throughout the controlled purchase. Although Brugman did not describe Williams
immediately following the controlled purchase, he witnessed a photograph of
Williams within two days of the purchase and recognized him at that time. For these
reasons, we reject Williams's argument that the pretrial identification should have
been suppressed.

                           II. Alleged Hearsay Statements

      Williams next argues that the District Court erred in failing to suppress
statements made by his sister during the controlled purchase that he believes are

                                          -3-
hearsay. The statements were taped by the Government, and the jury listened to the
tape and received a copy of its transcript to follow during the playing of the tape (the
jury was not allowed to keep the transcript after the playing of the tape was
completed). The statements by Williams's sister were also admitted at trial through
Brugman's testimony.

          Hearsay is "a statement, other than one made by the declarant while testifying
at . . . trial, offered in evidence to prove the truth of the matter asserted," Fed. R. Evid.
801(c), and is generally inadmissible, Fed. R. Evid. 802. But a statement is not
hearsay if it is offered against a party and was made "by a coconspirator of a party
during the course and in furtherance of the conspiracy." Fed. R. Evid. 801(d)(2)(E).
More specifically, a statement is admissible pursuant to Rule 801(d)(2)(E) "if the
government demonstrates (1) that a conspiracy existed; (2) that the defendant and the
declarant were members of the conspiracy; and (3) that the declaration was made
during the course and in furtherance of the conspiracy." United States v. Bell, 573
F.2d 1040, 1043 (8th Cir. 1978). The standard of proof for these requirements is
preponderance of the evidence. Id. at 1044. Williams argues that the statements
made by his sister, who did not testify at trial, were offered to prove the truth of the
matters she asserted. The District Court, however, ruled that her statements were not
hearsay because they met the requirements of Rule 801(d)(2)(E). We review
evidentiary rulings for an abuse of discretion. United States v. Alcantar, 271 F.3d
731, 739 (8th Cir. 2001), cert. denied, 535 U.S. 964 (2002).

       Williams offers two arguments for why Rule 801(d)(2)(E) should not apply.
We find his first argument—that "[a] sale of drugs does not constitute a conspiracy,"
Br. of Appellant at 15—to be frivolous. In the criminal context, a "conspiracy" is "'an
agreement between at least two people'" whose "'objective was a violation of the
law.'" United States v. Guerrero–Cortez, 110 F.3d 647, 651 (8th Cir.) (quoting
United States v. Jenkins, 78 F.3d 1283, 1287 (8th Cir. 1996) (internal quotations



                                            -4-
omitted)), cert. denied, 522 U.S. 1017 (1997). Obviously, an agreement between two
persons to sell drugs in violation of federal law meets this definition.

       Williams also contends that his participation in a conspiracy was not proven
by independent evidence, as he believes it must be, but instead only by his sister's
statements, the very statements he argues are hearsay. Contrary to Williams's
assertion, the District Court relied on more than his sister's statements in concluding
that he and his sister were involved in a conspiracy. In particular, the District Court
considered Brugman's testimony that he saw Williams hand his sister a plastic bag
containing cocaine base. The circumstances surrounding this exchange—its rapid
occurrence in the back hallway of a small apartment while purchasers waited in the
front of the apartment—are strong hints Williams knew his sister intended to sell the
drugs rather than use them herself. Cf. Iannelli v. United States, 420 U.S. 770, 777
n.10 (1975) (explaining that agreement underlying conspiracy can "be inferred from
the facts and circumstances of the case"). Taken together, the independent evidence
and the statements provide proof of a conspiracy in which Williams and his sister
were involved, and there is little doubt that her statements were "made during the
course and in furtherance of the conspiracy"—a sale of cocaine base was ongoing,
and her statements were made with the purpose of explaining the sale procedure to
the purchasers. Accordingly, the District Court did not abuse its discretion by
admitting the statements.

                       III. Evidence of Prior Drug Conviction

       Williams was convicted in 1996 in Iowa state court of delivery of cocaine base.
Over Williams's objection, the District Court permitted the Government to introduce
the 1996 conviction as evidence of Williams's knowledge of cocaine base and his
intent to aid and abet in its distribution. Williams argues that introducing the
conviction violated Rule 404(b) of the Federal Rules of Evidence. Again, our review



                                         -5-
is for abuse of discretion. United States v. LeCompte, 99 F.3d 274, 277 (8th Cir.
1996).3

      Evidence of a prior crime is admissible if the prior crime is relevant to a
material issue, similar in kind and close in time to the charged crime, and supported
by sufficient evidence. United States v. Ruiz-Estrada, 312 F.3d 398, 403 (8th Cir.
2002), cert. denied, 123 S. Ct. 1766 (2003). In addition, its probative value must not
be outweighed by any improper prejudicial impact. Id. Evidence of a prior crime is
inadmissible, however, "to prove the character of a person in order to show action in
conformity therewith." Fed. R. Evid. 404(b). That is, "[s]uch evidence is not
admissible 'solely to prove the defendant's criminal disposition.'" LeCompte, 99 F.3d
at 277 (quoting United States v. Shoffner, 71 F.3d 1429, 1432 (8th Cir. 1995)).

       Williams argues that evidence of his 1996 conviction should not have been
admitted because it is not similar in kind or close in time to the crime he was charged
with committing. He explains that his 1996 conviction "appeared to be sales of small
quantities for personal use rather than a sale of a larger amount for resale as the size
of the July 18, 2001 sale suggested." Br. of Appellant at 18. Our cases, however, do
not support the suppression of a prior drug conviction in the prosecution of a drug
offense where the prior conviction involved drugs for personal use rather than for
sale. See, e.g., United States v. Powell, 39 F.3d 894, 896 (8th Cir. 1994). This case
is no different. The discrepancy in quantity between Williams's prior conviction and

      3
        We note that Williams also appeals as violative of Rule 404(b) the admission
of testimony by a police officer that he saw Williams at Williams's sister's apartment
in April 2002. The Government introduced this testimony to show a connection
between Williams and the location of the charged offense; specifically, it
supplemented the testimony by Brugman and the confidential informant, Kimpton,
that placed Williams at his sister's apartment. We believe the testimony by the officer
is admissible, though it is not governed by Rule 404(b) because it is not evidence of
a prior bad act, but "merely shows the full context of the charged crime." See United
States v. Carroll, 207 F.3d 465, 468 (8th Cir.), cert. denied, 531 U.S. 849 (2000).

                                          -6-
the present prosecution does not change the prior conviction's probative value as to
Williams's knowledge and intent. See United States v. Oates, 173 F.3d 651, 660 (8th
Cir.), cert. denied, 528 U.S. 890 (1999). Williams also argues that the 1996
conviction is too remote to be relevant, but we do not believe the five-and-a-half
years that elapsed between his prior conviction and the July 18, 2001, sale of cocaine
base weakens the prior conviction's probative value. See United States v. Burkett,
821 F.2d 1306, 1309–10 (8th Cir. 1987) (approving admission of evidence of prior
crime committed seven years before offense for which defendant was being tried).
We find this to be particularly true concerning the prior conviction's relevance as to
Williams's knowledge that he was distributing cocaine base; we believe he could
recognize cocaine base with the same accuracy in 2001 as he did in 1996.

       Alternatively, Williams contends that the prejudicial impact created by the
introduction of the 1996 conviction substantially outweighs the conviction's probative
value. The Government is correct that the conviction had significant probative
value—as we just explained, it provides evidence of Williams's knowledge and intent.
It was especially probative because the conviction concerned the same drug, cocaine
base, that the Government charged Williams with distributing in this case. Of course,
this similarity creates the prejudicial effect—the notion that Williams has a propensity
to deal in cocaine base—that concerns Williams. To ensure this prejudicial effect
would be minimal, the District Court instructed the jury that it was permitted to use
the conviction only in considering Williams's knowledge and intent. Trial Tr. at 199–
200. He told the jury, "Remember, even if you find that the Defendant may have
committed a similar act in the past, this is not evidence that he committed such an act
in this case. You cannot convict a person simply because you believe he may have
committed similar acts in the past." Id. We believe this charge to the jury greatly
decreased any likelihood of undue prejudice, see United States v. Fletcher, 322 F.3d
508, 519 (8th Cir. 2003), and the admission of the evidence of Williams's 1996
conviction was not an abuse of the District Court's discretion.



                                          -7-
                               IV. Post-Trial Motions

       The District Court denied Williams's motions for a judgment of acquittal and
for a new trial. He appeals both.

      In considering a motion for acquittal, "we view the evidence in the light most
favorable to the jury's verdict and reverse only if we conclude that no reasonable jury
could have found guilt beyond a reasonable doubt." United States v. Barrow, 287
F.3d 733, 736 (8th Cir.), cert. denied, 123 S. Ct. 535 (2002). For this reason, "[w]e
do not lightly overturn a jury verdict." Id.

       Williams's argument that we should overturn his conviction is premised on
what he alleges is unreliable testimony by Kimpton, the confidential informant.
Kimpton's testimony at trial conflicted with a statement he made to police
immediately following the controlled purchase, and he also gave incomplete
testimony concerning his criminal history to the grand jury. We acknowledge these
inconsistencies in Kimpton's testimony, but in considering a motion for acquittal, a
court should not assess the witnesses' credibility or weigh the evidence. United States
v. Hernandez, 301 F.3d 886, 889 (8th Cir. 2002). Our task is to evaluate whether the
Government has met its burden of proof. In order to convict Williams of aiding and
abetting the distribution of cocaine base, the Government was required to prove
beyond a reasonable doubt that Williams "(1) associated [him]self with the unlawful
venture; (2) participated in it as something [] he wished to bring about; (3) sought by
[his] actions to make it succeed; and (4) shared the criminal intent of the principal."
See id. at 890. Having reviewed the record in the light most favorable to the
Government, we believe the Government has fulfilled its burden. Brugman testified
to seeing Williams hand his sister the bag of cocaine base. Trial Tr. at 90. He also
said that Williams's sister told him "that she would have her brother come and tell her




                                         -8-
when her source was at the residence." Id. at 88.4 Further, Brugman testified that
Williams's sister said that she "sent her brother around back to get the rest" of the
cocaine base to be sold. Id. at 89. Two Iowa police officers performing surveillance
of the controlled purchase testified to seeing Williams outside the apartment building.
Id. at 57, 61. So did Kimpton. Id. at 167–68. Taken together, this evidence is
meaningful proof of Williams's presence at the apartment and his association with the
distribution of an illegal drug. In addition, as we explained in the context of
Williams's evidentiary challenge to his sister's statements, his delivery of cocaine base
in a plastic bag in the back hallway of a small apartment building suggests that
Williams knew his sister intended to sell the drugs, not use them personally.
Williams's prior conviction provided further evidence of his knowledge of cocaine
base and his intent to participate in the distribution of drugs. See Ruiz-Estrada, 312
F.3d at 403. In sum, there is sufficient evidence in the record to support the jury's
verdict. The motion for acquittal was properly denied.

       The standard for a new trial is not as stringent as that for judgment of acquittal.
We may not grant a defendant a new trial "unless 'the evidence weighs heavily
enough against the verdict that a miscarriage of justice may have occurred.'" United
States v. Espinosa, 300 F.3d 981, 983 (8th Cir. 2002) (citations omitted). A district
court's denial of a new trial motion will not be overturned unless "the court clearly
abused its discretion." Id. Unlike in a motion for acquittal, we need not view the
evidence in the light most favorable to the Government. Id. The new trial motion,
therefore, presents the proper time for our consideration of Williams's argument that
the verdict rested on Kimpton's unreliable testimony. We agree that the
inconsistencies between his testimony at trial and his statement to police after the
controlled purchase leave doubts as to his credibility. But we do not believe
Kimpton's testimony weakened the strength of the Government's remaining evidence.


      4
        According to Brugman, she identified Williams by the name "O.G.", Trial Tr.
at 88, which Kimpton testified was one of Williams's nicknames, id. at 167.

                                           -9-
Brugman's testimony and Williams's prior conviction provided the jury with all of the
facts necessary to prove Williams's intent to participate, and actual participation, in
aiding and abetting the sale of the cocaine base, and the jury's verdict reasonably
could rest in large part on the credibility of Brugman. We are satisfied the District
Court did not clearly abuse its discretion in denying Williams's new trial motion.

                         V. Motion for Downward Departure

       Williams moved at his sentencing for a downward departure under United
States Sentencing Guidelines (U.S.S.G.) § 4A1.3 (2002) because he believed his
sentence overstated his criminal record. The District Court denied the motion.
Williams urges us to reconsider this decision, but the Government insists we are
foreclosed from doing so because the denial of a downward departure motion is
unreviewable unless the court was unaware of its authority to depart. See United
States v. Lim, 235 F.3d 382, 385 (8th Cir. 2000). At sentencing, the District Court
stated, "If I thought it wasn't an abuse of discretion, I'd go ahead and grant
[Williams's departure] motion, but I have to follow the law, and I think that you have
to look at the entire criminal history . . . . I can't in good faith say that the criminal
history is overstated for purposes of a downward departure." Sentencing Tr. at 15
(Nov. 21, 2002). Williams interprets this to mean that the District Court believed it
lacked the authority to grant the departure motion, while the Government reads the
District Court's explanation as an acknowledgment that it could grant a departure if
Williams's criminal history was less decorated with convictions. We agree with the
Government. In our view, the District Court stated its belief that it understood its
authority to depart downward pursuant to U.S.S.G. § 4A1.3 but that a departure
would be an abuse of its discretion given Williams's criminal history. See United
States v. Bieri, 21 F.3d 811, 817–18 (8th Cir. 1994), cert. denied, 513 U.S. 878
(1994); Lim, 235 F.3d at 385 (concluding that district court understood it had
authority to depart downward under U.S.S.G. § 4A1.3 even though court did not state
belief that it recognized its authority to depart). Because we are convinced the

                                          -10-
District Court was aware of its authority to depart downward but elected not to do so
because of Williams's extensive criminal history, we are precluded from reviewing
the denial of Williams's departure motion.

                                   VI. Conclusion

       For the reasons stated above, the judgment of the District Court is affirmed in
all respects.

      A true copy.

             Attest:

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




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