                    United States Court of Appeals
                      FOR THE EIGHTH CIRCUIT

                           ___________

                           No. 97-1482
                           ___________

United States of America,         *
                                  *
      Plaintiff - Appellee,       *
                                  * Appeal from the United
States
    v.                            * District Court for the
                                  * Southern District of
Iowa.
Timothy Wayne Spence,        *
                             *
      Defendant - Appellant. *
                        ___________

                          Submitted: June 12, 1997
                             Filed:    October 9, 1997
                           ___________

Before LOKEN, REAVLEY,* and JOHN R. GIBSON, Circuit
    Judges.
                       ___________

LOKEN, Circuit Judge.

    Timothy Wayne Spence appeals his conviction and
seventy-month sentence for possession of marijuana with
intent to distribute in violation of 21 U.S.C. §




      *
       The HONORABLE THOMAS M. REAVLEY, United States Circuit Judge
for   the Fifth Circuit, sitting by designation.
841(a)(1). He argues there was insufficient evidence to
convict and that the district court1 erred




     1
       The HONORABLE HAROLD D. VIETOR, United States District Judge for
the Southern District of Iowa.

                                  -2-
when it admitted evidence of his prior arrest for
possession of marijuana and then used that prior drug
quantity in calculating his base offense level for
sentencing. We affirm.

    1. Sufficiency of the Evidence. Spence argues that
the evidence was insufficient to sustain his conviction.
We summarize that evidence in the light most favorable to
the government.      After agreeing to cooperate with
government investigators, Patrick Hartman arranged to buy
forty-five pounds of marijuana from his supplier, David
Forsythe.   On May 21, 1996, Forsythe called Hartman and
said that he was in Room 169 at a Holiday Inn near the
Des Moines airport, a room that Spence had rented under
another name. At 6:45 p.m., Spence left the hotel in a
blue Oldsmobile.     DEA agents followed the car to a
shopping center two miles away, where Spence made a call
from a pay phone, sat in his car for one hour, and then
returned to the hotel. During this time, Forsythe called
Hartman and said he was waiting for his driver.

    At 8:45 p.m., DEA agents executed a warrant to search
the hotel room. They found thirty-seven one-pound bags
of marijuana and a total of nineteen kilograms of
marijuana in the hotel room and Spence hiding in the
unlit bathroom.    Spence denied knowing anyone in the
hotel room, denied driving the Oldsmobile to the hotel,
and said he had left the hotel earlier to avoid being
involved. Claiming knowledge of the federal sentencing
guidelines, Spence also asked the agents why they were
interested in him because the maximum sentence for the
quantity of marijuana found in the hotel room was only
two years.

                           -3-
    We reverse a conviction on the ground of insufficient
evidence only if a “reasonable fact-finder must have a
reasonable doubt about an essential element of the
offense.” United States v. Moore, 98 F.3d 347, 349 (8th
Cir. 1996).   We conclude the evidence in this case is
more than sufficient to sustain Spence’s conviction.

     2. The Rule 404(b) Issue.    In December 1995, a
government informant delivered a motor home containing
some 250 pounds of marijuana to Spence at a truck stop
near




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Chicago.   When Spence drove away in the motor home,
police stopped the vehicle and arrested Spence, at which
time he made incriminating admissions such as, “If you
think all that pot was for me, you are wrong.”        At
Spence’s Illinois home, police found marijuana wrappings
similar to those in the motor home. A telephone analysis
later showed four October 1995 calls between Spence’s
Illinois number and Forsythe’s Kansas City number.

    Before trial, Spence moved to exclude evidence of
this Illinois arrest. The government responded that the
evidence was admissible as part of the charged conspiracy
between Spence and Forsythe (a count on which the jury
ultimately failed to reach a verdict), or as evidence of
other crimes admissible under Rule 404(b) of the Federal
Rules of Evidence. The district court deferred ruling on
the admissibility of this evidence until the government
had introduced its other evidence at trial.       At that
point, the court admitted the above-summarized evidence
under Rule 404(b).
    (a) On appeal, Spence first argues that the district
court erred in deferring its ruling until the middle of
trial, precluding him from attempting to defuse this
prejudicial evidence during voir dire and opening
statements. Spence did not raise this objection with the
district court, and he cites no authority supporting his
contention on appeal. District courts may defer ruling
on pretrial motions “for good cause.” Fed. R. Crim. P.
12(e). The district court reasonably concluded that it
should hear the government’s other evidence before
deciding whether the Illinois arrest was evidence of
conduct in furtherance of the alleged conspiracy between
Spence and Forsythe.     Thus, deferring its ruling was

                           -5-
neither plain error nor an abuse of the court’s
discretion. See United States v. Wilson, 26 F.3d 142,
159 (D.C. Cir. 1994).

    (b) Spence next argues that evidence of the Illinois
arrest was not admissible under Rule 404(b).         The
district court ruled that this evidence was relevant to
show Spence’s knowledge and intent to distribute
marijuana. Relying upon United States v. Jenkins, 7 F.3d
803 (8th Cir. 1993), Spence argues that knowledge and
intent were not




                           -6-
at issue because he asserted a “mere presence” defense
that effectively conceded knowledge that Forsythe
intended to distribute the marijuana found in the hotel
room.
    In Jenkins, we held that Rule 404(b) rebuttal
evidence   was   inadmissible    because    the   defendant
“testified unequivocally that he did not commit the acts
charged against him,” thus removing intent as an issue in
the case. 7 F.3d at 807. We have subsequently construed
Jenkins   as   a   narrow   exception    to   Rule   404(b)
admissibility,    applicable    only   if     a   defendant
“unambiguously indicate[s] that mental state is not in
dispute.” Moore, 98 F.3d at 350, quoting United States
v. Thomas, 58 F.3d 1318, 1322 (8th Cir. 1995).2 Spence
falls far short of meeting this rigorous standard. He
made no offer to stipulate intent out of the case, and
his so-called unequivocal concession was, at most, an
inference that he knew Forsythe had the requisite intent


      2
         In United States v. Crowder, 87 F.3d 1405, 1409-10 (D.C. Cir. 1996), the
court followed Jenkins and Thomas in ruling evidence of prior drug trafficking
inadmissible under Rule 404(b), but acknowledged a conflict in the circuits on this
issue. The government petitioned for a writ of certiorari, raising the question
whether a defendant may foreclose Rule 404(b) evidence relevant to intent by
stipulating to that element of the offense at issue. See 65 U.S.L.W. 3327 (U.S. Oct.
29, 1997) (No. 96-548). The Supreme Court summarily reversed and remanded
“for further consideration in light of Old Chief v. United States, 519 U.S. ---, 117
S.Ct. 644, 136 L.Ed. 2d 574 (1997).” United States v. Crowder, 117 S. Ct. 760
(1997). In Old Chief, the Court’s holding was limited to an unrelated issue, see 117
S. Ct. at 651 n.7, but its opinion observed that “the accepted rule that the
prosecution is entitled to prove its case free from any defendant’s option to stipulate
the evidence away rests on good sense.” Id. at 654. This observation, coupled with
the remand in Crowder, may signal that our Jenkins decision has been overruled, but
that is an issue we leave for another day.

                                          -7-
to distribute that could be drawn from his statements to
the arresting officers. That “concession” left Spence’s
own knowledge and intent at issue, and evidence of the
Illinois arrest was relevant to those issues.         In
general, Rule 404(b) evidence is relevant




                           -8-
to refute a “mere presence” defense. See Moore, 98 F.3d at
350. The district court did not abuse its discretion in
admitting such evidence in this case.

    3. The Relevant Conduct Issue.       Finally, Spence
argues that the district court erred in including the
marijuana seized at the time of his Illinois arrest in
the drug quantity that established his base offense level for
sentencing purposes.    The Sentencing Guidelines define
the conduct that is relevant to sentencing more broadly
than the offense of conviction.     See United States v.
Galloway, 976 F.2d 414, 419 (8th Cir. 1992) (en banc).
Relevant conduct includes acts and omissions "that were
part of the same course of conduct or common scheme or
plan as the offense of conviction.”           U.S.S.G. §
1B1.3(a)(2); see United States v. Watts, 117 S. Ct. 633,
635-36 (1997). In determining base offense level for a
drug trafficking offense, the district court may consider
as relevant conduct “quantities of drugs not specified in
the count of conviction.”     U.S.S.G. § 2D1.1, comment.
(n.12). Whether additional, uncharged drug trafficking
is part of the “same course of conduct” as the offense of
conviction is a fact-intensive question reflecting the
traditional role of the sentencing court to consider a
defendant’s past criminal behavior. The question turns
on factors such as “the degree of similarity of the
offenses, the regularity (repetitions) of the offenses,
and the time interval between the offenses.” U.S.S.G. §
1B1.3, comment. (n.9(B)); see United States v. Lawrence,
915 F.2d 402, 407 (8th Cir. 1990).3

      3
      Section 1B1.3 as initially promulgated expressly commented that relevant
conduct for sentencing purposes should include other crimes evidence admissible

                                       -9-
    In this case, Spence’s Presentence Investigation
Report included as relevant conduct the 127 kilograms of
marijuana seized at the time of his Illinois arrest.
Spence filed a timely objection, and the issue was then
argued extensively at his sentencing




under Rule 404(b). See U.S.S.G. App. C, amend. 3. However, that comment was
too broad because some conduct admissible under Rule 404(b) would clearly fall
outside the concepts of “same course of conduct” and “common scheme or plan.”

                                      -10-
hearing. Based upon the evidence at trial, the district
court found that the December 1995 Illinois arrest was
part of the same course of conduct as the offense of
conviction because the two incidents occurred within a
few months and involved distribution quantities of the
same drug.    This finding is not clearly erroneous,
particularly considering that the government presented
evidence of October 1995 telephone calls between Spence
and Forsythe which suggested continuing involvement by
Forsythe in Spence’s drug trafficking activities.    See
United States v. Nichols, 986 F.2d 1199, 1206-07 (8th Cir. 1993); United
States v. Gooden, 892 F.2d 725, 728-29 (8th Cir. 1989). Thus, the evidence
of continuous drug activity comprising a single course of conduct is far
stronger in this case than it was in United States v. Lewis, 987 F.2d 1349,
1356 (8th Cir. 1993), or United States v. Montoya, 952 F.2d 226, 228-29
(8th Cir. 1991), cases in which the purported relevant conduct involved
different drugs, different conduct, and different people.


    For the foregoing reasons,                the    judgment    of   the
district court is affirmed.

     A true copy.

           Attest:

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




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