                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 07-1998
                                     ___________

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

                              Submitted: January 15, 2008
                                 Filed: April 24, 2008
                                  ___________

Before WOLLMAN and SMITH, Circuit Judges, and GRITZNER,1 District Judge.
                          ___________

WOLLMAN, Circuit Judge.

      Orlando Dorsey was convicted by a jury of possession with intent to distribute
heroin in violation of 21 U.S.C. § 841(a)(1). Before trial, the government moved to
admit evidence under Federal Rule of Evidence 404(b) that Dorsey had been
convicted in 1996 of five counts involving the possession of heroin and the
possession, trafficking, and sale of cocaine base. Dorsey’s proposed defense in the
present case was that the drugs were planted on him by the police. Accordingly, he
offered to stipulate the fact of the requisite intent if the jury found that he possessed

      1
        The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa, sitting by designation.
the heroin and argued that the prosecution should be prohibited from admitting his
prior convictions under the holding in Old Chief v. United States, 519 U.S. 172
(1997). It is from the district court’s refusal to exclude the proffered Rule 404(b)
evidence that Dorsey now appeals. We affirm.

       We review decisions regarding the admissibility of evidence under an abuse of
discretion standard. United States v. Claxton, 276 F.3d 420, 422 (8th Cir. 2002).
Rule 404(b) “is a rule of inclusion, such that evidence offered for permissible
purposes is presumed admissible absent a contrary determination.” United States v.
Johnson, 439 F.3d 947, 952 (8th Cir. 2006).

       Evidence of prior crimes admitted under Rule 404(b) must be offered for a
material issue other than to prove the defendant’s propensity for bad conduct, must
“be similar in kind and close in time to the crime charged,” and must “be supported
by sufficient evidence to support a finding by a jury that the defendant committed the
other act.” Johnson, 439 F.3d at 952 (internal quotation omitted). Once these criteria
have been met, the district court “asks whether Federal Rule of Evidence 402’s
relevancy requirement is met and whether the probative value of the evidence is
substantially outweighed by the prejudicial effect under Federal Rule of Evidence
403.” United States v. Hill, 249 F.3d 707, 710 (8th Cir. 2001). The district court
found that the prior crimes were relevant to the material issues of intent and
knowledge, were sufficiently similar in kind and sufficiently close in time to the
current charge, and were supported by sufficient evidence to warrant admission under
Rule 404(b). Dorsey does not challenge any of these findings.2




      2
        Dorsey’s brief does touch on the issue of relevance, but it is unclear whether
he makes a separate argument that his stipulation of intent made the prosecution’s
evidence of intent irrelevant, and thus inadmissible under Rule 402. That argument
fails. See Hill, 249 F.3d at 712.

                                         -2-
       Although Dorsey frames his appeal in terms of Rule 404(b), he argues only that
his prior crimes should have been excluded under Rule 403, which states in relevant
part: “Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice . . . .” Dorsey’s argument
for excluding his prior convictions under Rule 403 rests on extending the holding in
Old Chief to the facts of this case. In Old Chief, the Supreme Court held that when
the purpose of evidence is solely to prove the defendant’s status as a felon, a district
court abuses its discretion under Rule 403 if it refuses a defendant’s offer to stipulate
to that status in situations in which the admission of the name or details of the
conviction create a risk of unfair prejudice. 519 U.S. at 180-92. In the Court’s view,
proving an abstract legal status, such as that of being a felon, has nothing to do with
the story or narrative of the case, so the prosecution suffers no loss of probative value
if required to accept the stipulation. Id. at 186-92. Dorsey contends that because his
proffered stipulation would achieve an effect identical to the introduction of his prior
convictions, the probative value of the full conviction record would be zero, so that
any resulting unfair prejudice would necessarily substantially outweigh the non-
existent probative value. Accordingly, he argues, the logic of Old Chief should apply
here and require that his stipulation be accepted and his prior convictions be excluded
under Rule 403.

       We conclude that Old Chief’s narrow holding that the prosecution must
sometimes accept a defendant’s stipulation does not apply to this case, for that opinion
states that its “holding is limited to cases involving proof of felon status,” id. at 183
n.7, and it distinguishes the situations in which prior criminal convictions are admitted
under Rule 404(b). Id. at 190. The point to be proved in Old Chief was abstract and
completely divorced from the story of the case, id., whereas the issues of knowledge
and intent are linked to that story in Dorsey’s case. See Hill, 249 F.3d at 713.
Because Dorsey’s case falls outside the facts, holding, and logic of Old Chief, the
district court did not err in refusing to require the prosecution to accept Dorsey’s
stipulation and in admitting the proffered Rule 404(b) evidence.

                                          -3-
      In so holding, we note that the district court may have inadvertently overstated
our holding in Hill when it expressed its understanding that Hill prohibits the use of
Rule 403 to exclude evidence otherwise admissible under Rule 404(b), for Hill
expressly states that “evidence that meets Rule 404(b)’s relevancy test is still subject
to Rule 403 balancing.” Hill, 249 F.3d at 713.

       Any misapprehension on the district court’s part that Hill deprived it of
discretion to make a Rule 403 determination does not affect the outcome in this case.
In addition to the fact that Dorsey did not expressly request that the district court make
a Rule 403 determination apart from his unsuccessful argument under Old Chief, there
exists substantial evidence of Dorsey’s guilt. Further, a ruling excluding the
government’s proffered evidence would have constituted an abuse of discretion in
light of the nature of the offense with which Dorsey was charged.

      The judgment is affirmed.
                      ______________________________




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