                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                             Oct. 7, 2009
                             No. 08-16567                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 08-14020-CR-JEM


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

CHESTER MCCOY,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                             (October 7, 2009)

Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.
PER CURIAM:

      Defendant-Appellant Chester McCoy appeals his 120-month sentence for

possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(B)(iii). No reversible error has been shown; we affirm.

      McCoy challenges the trial court’s decision to allow the prosecution to

present evidence of McCoy’s past conviction for possession of cocaine with intent

to distribute under Federal Rule of Evidence 404(b). In addition, McCoy claims

that the presentation of the evidence -- the arresting officer testified as both a lay

and an expert witness -- violated Federal Rule of Evidence 403.

      This Court reviews evidentiary rulings for an abuse of discretion. United

States v. Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006). This review is deferential.

Since Federal Rule of Evidence 404(b) is a rule of inclusion, evidence should not

be excluded when it is central to the prosecution’s case. Id.

      District courts may admit prior crime evidence under Rule 404(b) if the

evidence is relevant to an issue other than the defendant’s character, if the prior act

was proved sufficiently to permit a jury determination that the defendant

committed the act, and the evidence’s probative value is not substantially

outweighed by undue prejudice in accordance with Rule 403. United States v.

Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003). McCoy alleges that the district



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court erred in applying the first and third parts of the test.

       McCoy alleges that his prior conviction was not relevant to the current case

because his defense consisted of a denial of possession. McCoy claims that

because his defense was based on a denial of possession, intent was not an issue at

trial. He cites no law for this proposition. By pleading not guilty, McCoy made his

intent a material issue at trial. “Evidence of prior drug dealings is highly probative

of intent to distribute a controlled substance[.] . . .” United States v. Cardenas,

895 F.2d 1338, 1344 (11th Cir. 1990) (internal citations omitted). The district

court properly admitted evidence central to the prosecution’s case.

McCoy’s second allegation is that the district court failed to balance the probative

value of the prior crime evidence against the danger it presented of unfairly

prejudicing the jury, as required by Rule 403. McCoy argues the Rule 403

balancing was especially critical because the district court allowed Agent Kent to

testify at length, first as an expert witness on the manufacture and distribution of

crack cocaine and then as a lay fact witness concerning McCoy’s 1999 conviction.

           The district court, although troubled by Agent Kent’s dual role, was

unaware of any binding precedent that prohibited such testimony. (R4 at 201-02).1


       1
           Other Circuits have dealt with this potential problem, and have left it to the discretion of
the trial judge. See, e.g., United States v. Flores-de-Jesus, ___ F.3d ___, 2009 WL 1693440, *7
(1st Cir. 2009) (“[T]here is no prohibition against a witness testifying as both an expert and a
fact witness[.] . . .”); United States v. Freeman, 498 F.3d 893, 904 (9th Cir. 2007). The notes to

                                                   3
The district court provided the jury with limiting instructions about Agent Kent’s

opinions as an expert. We see no reason to overturn an issue properly left to the

trial court’s discretion.

       The evidence in this case was substantial. Even assuming, arguendo, that

Agent Kent’s dual capacity as an expert and as a lay witness heightened the

possibility of undue prejudice, the error–if any–in the admission of the testimony

was harmless. Cf., U.S. v. Hubert, 138 F.3d 912, 914 (11th Cir. 1998).

       AFFIRMED.




the 2000 Amendment of Federal Rule of Evidence 701 make it clear that this practice was
contemplated. “Certainly it is possible for the same witness to provide both lay and
expert testimony in a single case.”


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