                                                                 [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT                        FILED
                            ________________________            U.S. COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                                                                    September 22, 2005
                                  No. 05-11451                     THOMAS K. KAHN
                              Non-Argument Calendar                    CLERK
                            ________________________

                       D. C. Docket No. 03-00685-CR-WBH-1

UNITED STATES OF AMERICA,


                                                                    Plaintiff-Appellee,

                                        versus

DESAUSSURE BREWER,

                                                                 Defendant-Appellant.

                            ________________________

                    Appeal from the United States District Court
                       for the Northern District of Georgia
                         _________________________
                               (September 22, 2005)


Before HULL, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

      Desaussure Brewer, a federal prisoner, appeals his conviction for possession

of heroin with intent to distribute, in violation of section 2 of Title 18 and sections
841(a)(1) and (b)(1)(B)(I) of Title 21 of the United States Code. Brewer argues

that the district court committed reversible error under Federal Rule of Evidence

404(b) when it admitted evidence of Brewer’s previous heroin distribution

conviction. Because the evidence of Brewer’s previous conviction was probative

of Brewer’s intent and the probative value of the evidence was not substantially

outweighed by the prejudice to Brewer, the district court did not abuse its

discretion when it admitted Brewer’s previous conviction. We affirm.

I. BACKGROUND

      In October 2003, officers of the Atlanta Police Department arrested Henry

Terry when Terry attempted to make a heroin sale to a confidential informant. The

officers found over ten grams of heroin in Terry’s possession. After questioning,

Terry informed the officers that there was more heroin at his home and consented

to a search of the house.

      When they approached Terry’s residence, the officers saw Brewer sitting in

a room near the front door. After the officers knocked on the door, Brewer

answered. When asked for identification, Brewer slammed the door on an officer’s

hand. Brewer was arrested for obstructing an officer.

      Inside the residence, the officers noticed a strong smell of vinegar and

observed drug packaging materials and what appeared to be heroin. After they had



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obtained a search warrant, the officers searched the house and found approximately

100 grams of heroin, packaging materials, and digital scales. In the room where

Brewer had been sitting, the officers found approximately 62.5 grams of heroin, a

set of scales, a razor blade, small baggies, and mail and other documents addressed

to Brewer. After the search, the officers noted that Brewer appeared to be under

the influence of drugs. Brewer told the officers that he was addicted to heroin and

was taking methadone to end the addiction.

      Terry and Brewer were indicted in a two count indictment for possession

with intent to distribute heroin. Brewer’s case proceeded to trial, at which Brewer

presented a “mere presence” defense. Because Brewer’s intent was at issue, the

government sought to introduce evidence of Brewer’s 1991 conviction for

possession of heroin with intent to distribute under Federal Rule of Evidence

404(b) in addition to the offense conduct. The district court admitted the 404(b)

evidence over defense counsel’s objection because the court concluded that the

previous conviction was probative of intent and the probative value was not

substantially outweighed by its prejudicial effect. The district court gave a limiting

instruction and informed the jury that it could consider the age of the previous

conviction to decide whether it showed intent. The jury convicted Brewer on

Count Two of the indictment and acquitted him on Count One.



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      After a sentencing hearing, the district court sentenced Brewer to 90 months

of imprisonment and six years of supervised release. The district court also

imposed a monetary assessment of $100 and a fine of $7200. Brewer appeals the

admission of his previous conviction as evidence.

                          II. STANDARD OF REVIEW

      We review the rulings of the district court on the admissibility of evidence

for abuse of discretion. United States v. Abraham, 386 F.3d 1033, 1035 (11th Cir.

2004). We will reverse the district court only if any error was not harmless.

United States v. Church, 955 F.2d 688, 700 (11th Cir. 1992). “An error is harmless

unless there is a reasonable likelihood that [it] affected the defendant’s substantial

rights.” United States v. Hands, 184 F.3d 1322, 1329 (11th Cir. 1999) (internal

quotation marks and citation omitted).

                                 III. DISCUSSION

      Rule 404(b) provides that evidence that the defendant committed other

crimes or bad acts is not admissible to prove that the defendant acted in conformity

with his past behavior. Evidence of other bad acts is admissible for other purposes,

such as to prove motive, opportunity, or intent:

      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,

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      identity, or absence of mistake or accident . . . .

Fed. R. Evid. 404(b).

      To be admissible under Rule 404(b), evidence of other crimes or bad acts

must meet a three part test. United States v. Miller, 959 F.2d 1535, 1538 (11th Cir.

1992) (en banc). First, the evidence must be “relevant to an issue other than the

defendant’s bad character.” Id. “Second, the act must be established by sufficient

proof to permit a jury finding that the defendant committed the extrinsic act.”

United States v. Delgado, 56 F.3d 1357, 1365 (11th Cir. 1995). Finally, “the

evidence must possess probative value that is not substantially outweighed by its

undue prejudice, and the evidence must meet the other requirements of Rule 403.”

Miller, 959 F.2d at 1538.

      Brewer erroneously argues that the admission of the Rule 404(b) evidence

was erroneous because the evidence was not necessary to prove intent and because

the probative value of the evidence was substantially outweighed by the prejudice

that would result from its admission. The evidence of Brewer’s previous

conviction was relevant to prove Brewer’s intent, which Brewer made a material

issue by pleading not guilty. Delgado, 56 F.3d at 1365. The government may

meet its burden to show intent “with qualifying 404(b) evidence absent affirmative

steps by the defendant to remove intent as an issue.” Id. Brewer did not take



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affirmative steps to remove intent as an issue, and, when Brewer argued a “mere

presence” defense, “the 404(b) evidence . . . was necessary to dispel [Brewer’s]

‘innocent explanation for his presence.’” United States v. Matthews, 411 F.3d

1210, 1227 (11th Cir. 2005).

      The 404(b) evidence was not unduly prejudicial. “[T]he greater the

government’s need for evidence of intent, the more likely that the probative value

will outweigh any possible prejudice.” Id. at 1366 (internal quotation marks and

citation omitted). Because Brewer maintained a “mere presence” defense, the

government was forced “to prove [Brewer’s] criminal intent so as to negate any

innocent explanation for his presence.” Id. at 1365. Furthermore, as Brewer

acknowledges, the evidence against him was relatively weak, and his mere

presence at the scene of criminal activity was insufficient to support a finding of

guilt. See United States v. Leonard, 138 F.3d 906, 909 (11th Cir. 1998). The need

for the 404(b) evidence, therefore, was great and its probative value was not

substantially outweighed by its prejudicial effect. “[We have] found that extrinsic

drug offenses do not tend to incite a jury to an irrational decision,” Delgado, 56

F.3d at 1366, and the district court instructed the jury twice on the limited purpose

of the 404(b) evidence and the weight that could be given to its temporal

remoteness.



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                                 IV. CONCLUSION

       Because the evidence of Brewer’s previous conviction was relevant to his

intent and the probative value of the evidence was not substantially outweighed by

its prejudicial effect, the district court did not abuse its discretion when it admitted

the evidence at trial.

       AFFIRMED.




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