                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             JUNE 5, 2007
                              No. 06-14252                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                D. C. Docket No. 06-00013-CR-FTM-29-SPC

UNITED STATES OF AMERICA,


                                                   Plaintiff-Appellee,

                                   versus

DANYEL D. LAWSTON,

                                                   Defendant-Appellant.


                        ________________________

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

                                (June 5, 2007)

Before TJOFLAT, DUBINA and CARNES, Circuit Judges.

PER CURIAM:

     Danyel D. Lawston appeals his 21 U.S.C. §§ 846 conviction for conspiring
to possess with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1).

Lawston asks that we reverse his conviction on the ground that the Government

failed to prove its case, and direct the district court to enter a judgment of acquittal.

Alternatively, he seeks a new trial on the ground that the court improperly

permitted the Government to introduce prior bad act evidence under Federal Rule

of Evidence 4049b). We consider these issues in order.

                                            I.

      In determining whether the district court should have taken this case from

the jury, we consider the evidence in the light most favorable to the jury’s verdict

and ask whether “any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” United States v. Gupta, 463 F.3d 1182,

1193-94 (11th Cir. 2006). To obtain a conviction under 21 U.S.C. § 846, the

government must establish that (1) a conspiracy existed, (2) the defendant had

knowledge of it, and (3) he voluntarily became a part of it. Engaging in a simple

“buy-sell” drug transaction is generally not sufficient to support a § 846 conspiracy

conviction. United States v. Bascaro, 742 F.2d 1335, 1359 (11th Cir. 1984).

Accordingly, where the evidence only established that the defendant had made

several purchases of four to eight grams of cocaine at a time from the seller and the

seller did not know of the buyer (1) selling to anyone, (2) performing drug-related



                                            2
errands, or (3) collecting money for drugs for anyone else, we held that the

evidence was insufficient to establish a conspiracy to possess with intent to

distribute cocaine. United States v. Brown, 872 F.2d 385, 391 (11th Cir. 1989).

        Contrarily, we have held that an “agreement may be inferred when the

evidence shows a continuing relationship that results in the repeated transfer of

illegal drugs to the purchaser.” United States v. Mercer, 165 F.3d 1331, 1335

(11th Cir. 1999). For example, where the buyers (1) were among the sellers’ best

customers, (2) maintained a close relationship with the sellers, (3) bought on many

occasions, and (4) were important to the success of the sellers’ operation, the

evidence was sufficient to sustain a conspiracy conviction. Bascaro, 742 F.2d at

1359.

        Here, the Government presented testimony from Lawston’s co-conspirator

that he and Lawston conducted multiple transactions for amounts of cocaine

consistent with distribution. To demonstrate Lawston’s intent to traffick drugs, the

Government introduced evidence that Lawston had previously been involved with

drug dealing. Taking the evidence in the light most favorable to the Government,

we readily conclude that the district court did not err in denying Lawston’s motion

for judgment of acquittal.

                                          II.



                                          3
       Generally, we review a district court’s admission of evidence of a

defendant’s prior bad acts under Rule 404(b) for abuse of discretion. United States

v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003). However, where, as here, the

defendant fails to object to the admission of the evidence, we review the admission

for plain error. Id. Under plain error review, we only may reverse if (1) there was

error that (2) was plain, (3) affected the party’s substantial rights, and (4)

“seriously affected the fairness of the judicial proceedings.” Id. at 1289.

       Rule 404(b) provides: “[e]vidence 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, identity, or absence of

mistake or accident . . . .” We employ the following three-part test in determining

whether evidence of extrinsic bad acts is admissible under Rule 404(b):

       First, the evidence must be relevant to an issue other than the
       defendant’s character. Second, as part of the relevance analysis, there
       must be sufficient proof so that a jury could find that the defendant
       committed the extrinsic act. Third, the evidence must possess
       probative value that is not substantially outweighed by its undue
       prejudice, and the evidence must meet the other requirements of [Fed.
       R. Evid.] 403.

Jernigan, 341 F.3d at 1280.1


       1
         Because Lawston has not challenged the sufficiency of the evidence to prove the prior
acts, we need not consider the second prong. See United States v. Matthews, 431 F.3d 1296,

                                               4
       Lawston pled not guilty to the charged offense; therefore, his intent to

commit the offense became a material issue in the case. United States v.

Hernandez, 896 F.2d 513, 522 (11th Cir. 1990). Evidence of a crime similar to the

one charged is relevant to proving intent. United States v. Montes-Cardenas, 746

F.2d 771, 780 (11th Cir. 1984). Moreover, evidence of prior drug dealings is

highly probative of intent to engage in drug trafficking later on. United States v.

Diaz-Lizaraza, 981 F.2d 1216, 1224 (11th Cir. 1993). In assessing the third prong

of the Rule 404(b) test, “a court should consider the differences between the

charged and extrinsic offenses, their temporal remoteness, and the government’s

need for the evidence to prove intent.” Id. at 1225 (internal quotation marks and

citations omitted).

       In this case, the Rule 404(b) evidence consisted of drug dealing six months

prior to the charged conspiracy; the evidence was highly probative of Lawston’s

intent to engage in that conspiracy. At the same time, the court recognized the

possibility that the jury might find Lawston guilty of the charged conspiracy based

on that evidence alone, and so it gave the jury a limiting instruction. Given these

circumstances, we would be hard put to find plain error.



1311 n. 14 (11th Cir. 2005) (holding that where an appellant does not challenge the sufficiency
of the evidence supporting the extrinsic act, the second prong of the test does not need to be
considered.).

                                                5
Lawston’s conviction is due to be and is

AFFIRMED.




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