           ___________

           No. 95-4109
           ___________

United States of America,             *
                                      *
     Plaintiff - Appellee,            *
                                      *
     v.                               *
                                      *
Andre N. Moore,                       *
                                      *
     Defendant - Appellant.           *
           ___________

           No. 95-4143                    Appeals from the United States
           ___________                    District Court for the
                                          District of Nebraska.
United States of America,              *
                                       *
     Plaintiff - Appellee,             *
                                       *
     v.                                *
                                       *
Larry Jones,                           *
                                       *
     Defendant - Appellant.            *
                                  ___________

                   Submitted:     May 13, 1996

                         Filed:   October 10, 1996
                                  ___________

Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.
                               ___________


LOKEN, Circuit Judge.


     Andre N. Moore and Larry Jones appeal their convictions and sentences
for possession with intent to distribute more than fifty grams of cocaine
base within one thousand feet of a school zone in violation of 21 U.S.C.
§§ 841(a)(1) and 860(a).    The principal
issue on appeal is whether the district court1 erred by admitting evidence
of Moore's prior conviction and Jones's prior arrest for cocaine offenses.
We affirm.


                       I. Sufficiency of the Evidence.


     Jones and Moore were tried together and neither testified.                  On
appeal, each argues that the evidence was insufficient to sustain his
conviction.     To    frame   this   issue,   we   will   briefly   summarize   the
government's evidence at trial.


     On June 13, 1994, two confidential informants advised Omaha police
that three African-American men were distributing crack cocaine from the
Excel Inn in Omaha.    One informant stated that the men would soon leave the
Inn in a dark blue Oldsmobile Cutlass and would return with crack cocaine.
Acting on this tip, Sergeant Mark Langan began surveillance.         At 9:15 p.m.,
he observed three African-American men exit the Inn and depart in a dark
blue Oldsmobile Cutlass.      At 10:00 p.m., the men returned in the Cutlass
and were stopped by Omaha police officers in the Inn's parking lot.         As the
officers approached the vehicle, one noticed a passenger insert his hands
between the rear seat cushions.      Jones was the owner and driver of the car.
Moore was the rear seat passenger.


     All three men consented to a search of their persons and the car.
Police found a three-gram rock of crack cocaine in the space between the
rear seat cushions.     They found that Jones was carrying $900 and Moore
$600, all in twenty dollar bills, a common unit of exchange for crack
distribution.   Jones was also carrying a mobile pager, a device commonly
used by drug traffickers.     Moore gave conflicting explanations when police
found that he had a key to Room 216 of the Excel Inn.




     1
     The HONORABLE LYLE E. STROM, United States District Judge for
the District of Nebraska.

                                       -2-
                                        2
        When a drug-sniffing dog later "alerted" outside the door to Room
216, police obtained a search warrant.          In that room, they found twenty-
nine ounces of crack cocaine and drug paraphernalia suggesting crack
cocaine distribution.       Clothes found in the room suggested two occupants
the size of Jones and Moore.        Several of Jones's personal documents were
found, including a Los Angeles County food stamp identification card, his
birth certificate, and his motor vehicle registration.


        At trial, the defense argued that Jones and Moore were found at the
wrong place at the wrong time -- their friends were the guilty parties.
The jury convicted them of the three counts charged in the indictment.             We
will reverse for insufficient evidence only if a reasonable fact-finder
must have a reasonable doubt about an essential element of the offense.
See United States v. Buchanan, 985 F.2d 1372, 1376 (8th Cir. 1993), cert.
denied, 114 S. Ct. 2727 (1994).      Jones and Moore argue that the government
failed to link them to the evidence of drug trafficking found in Room 216.
However, the evidence viewed in the light most favorable to the government
is sufficient to sustain both convictions.


                    II. Admission of Rule 404(b) Evidence.


        Jones and Moore argue that the district court erred by admitting
evidence of Jones's 1994 arrest for possession of fifty grams of crack
cocaine,    and   Moore's   1987   conviction   for   possession   with   intent   to
distribute cocaine.    At trial, the government argued that this evidence was
admissible under Rule 404(b) of the Federal Rules of Evidence for the
purpose of showing defendants' intent and knowledge with respect to the
crimes charged.     Defendants argued that intent and knowledge were not in
issue    because they absolutely denied committing the crimes charged.
However, this contention was undermined by the following colloquy:




                                        -3-
                                         3
             THE COURT: One of the instructions, of course, that the jury
       will be getting is there are different kinds of possession. There
       is constructive possession and actual possession, and the jury is
       going to be asked to determine whether or not Mr. Jones was in
       possession of crack cocaine with intent to distribute.

             Now, if the jury finds that he was in constructive possession
       of cocaine, are you telling me that you are agreeable that I can
       instruct the jury that if they find that, then they can find that he
       intended to distribute it?

             MS. SISON [counsel for Jones]: No, your honor.        I wouldn't be
       agreeable to that.


The court concluded that evidence of Jones's prior arrest, as well as
Moore's 1987 conviction, were admissible on the issues of intent and
knowledge, and it instructed the jury that this evidence was only to be
considered for that purpose.


       Rule 404(b) provides that evidence of prior bad acts is admissible
if relevant to prove enumerated elements such as intent and knowledge, but
not "solely to prove the defendant's criminal disposition."        United States
v. Shoffner, 71 F.3d 1429, 1432 (8th Cir. 1995).      Rule 404(b) is a rule of
inclusion committed to the broad discretion of the trial court; its general
parameters have been articulated by this court in numerous decisions.         See,
e.g., United States v. Perkins, No. 95-3880, slip op. at 8-10 (8th Cir.
Aug. 23, 1996).


       Many of this court's prior decisions support the district court's
conclusion that evidence of prior drug offenses may be relevant to the
issue of a defendant's intent to commit a later drug offense.         See, e.g.,
United States v. Miller, 974 F.2d 953, 960 (8th Cir. 1992).               However,
relying upon United States v. Jenkins, 7 F.3d 803 (8th Cir. 1993), Jones
and Moore argue that intent was not at issue in this case; therefore, the
Rule   404(b)   evidence   was   admitted   solely   to   prove   their   criminal
disposition




                                      -4-
                                       4
and was unfairly prejudicial within the meaning of Rule 403 of the Federal
Rules of Evidence.


     In Jenkins, we held that Rule 404(b) evidence was not admissible in
rebuttal    when   the   defendant   had    taken    the   stand   and   "testified
unequivocally that he did not commit the acts charged against him," thereby
taking the issue of intent out of the case.            7 F.3d at 807.    In United
States v. Thomas, 58 F.3d 1318, 1321-22 (8th Cir. 1995), we further
clarified the Jenkins decision:


           Jenkins sets a stringent test that the defendant must meet in
     order to remove the issue of intent. . . . The defendant may not make
     any argument concerning mental state and must unambiguously indicate
     that mental state is not in dispute.         He may do this either
     affirmatively by stipulation, see Jenkins, 7 F.3d at 807, or
     negatively, by carefully and clearly limiting the scope of his
     defense so as not to raise any issue concerning mental state. Once
     any evidence or argument concerning mental state is introduced,
     evidence of prior bad acts becomes admissible.


     Jones and Moore did not satisfy the stringent Jenkins test.              Jones
put forward a "mere presence" defense, not an absolute denial under
Jenkins.    Jones did not dispute that he had been in Room 216, where
overwhelming evidence of drug trafficking was found; the defense was that
he had gone out with friends and innocently left personal documents in Room
216 for safekeeping.     We have repeatedly held that Rule 404(b) evidence is
relevant to refute a "mere presence" defense.        See Thomas, 58 F.3d at 1323;
United States v. Dobynes, 905 F.2d 1192, 1195 (8th Cir.), cert. denied, 498
U.S. 877 (1990).     Moreover, Jones's counsel was unwilling to stipulate
intent out of the case, as Thomas requires.         Similarly, Moore's counsel in
opening statement argued that Moore was simply "the wrong man at the wrong
time at the wrong place."     Like "mere presence," that defense puts intent
at issue and opens the door to the admission of relevant Rule 404(b)
evidence.   See United States v. Mihm, 13 F.3d 1200, 1205 (8th Cir. 1994).
Thus, the district




                                      -5-
                                       5
court did not abuse its discretion in admitting Rule 404(b) evidence on the
issue of intent.


     Moore also argues that his seven-year-old prior conviction was too
remote to be admissible as Rule 404(b) evidence.   Proximity in time is one
factor in determining the relevance of a prior conviction, but "there is
no specific number of years beyond which prior bad acts are no longer
relevant to the issue of intent."   United States v. Burkett, 821 F.2d 1306,
1309 (8th Cir. 1987).     In drug cases, we have upheld the admission of
evidence of similar prior crimes that occurred five and six years before
the crime charged.   See Shoffner, 71 F.3d at 1433; United States v. Wint,
974 F.2d 961, 967 (8th Cir. 1992), cert. denied, 506 U.S. 1062 (1993).   In
this case, given the similarity of the prior offense and the crime charged,
the district court did not abuse its broad discretion in determining that
Moore's prior conviction was relevant Rule 404(b) evidence.


                      III. A Fourth Amendment Issue.


     When Jones and Moore returned to the Excel Inn parking lot in the
Oldsmobile Cutlass, police surrounded the car, detained its occupants, and
obtained consents to search.   At trial, Moore and Jones moved for the first
time to suppress all evidence resulting from these consensual searches (and
the later search of Room 216) on the ground that the initial stop violated
their Fourth Amendment rights.      The district court denied that motion,
concluding that Jones and Moore had waived the issue by failing to make a
pretrial motion to suppress, as required by Fed. R. Crim. P. 12(b)(3).   See
Buchanan, 985 F.2d at 1380.


     On appeal, Moore and Jones argue that the district court erred in
refusing to grant relief from their Rule 12(b)(3) waiver "for cause shown,"
as authorized by Rule 12(f).     They argue there was good cause for their
tardy motions because they had no basis for a




                                     -6-
                                      6
suppression motion until Sergeant Langan testified at trial that he ordered
the initial stop based upon his surveillance, not because of a traffic
violation, as written police reports had suggested.        However, as the
district court noted in denying their motions, Jones and Moore were
personally present during the stop they now challenge.    When a defendant
is "personally aware of the police action which led to their acquisition
of the evidence, he is responsible for informing counsel of those facts,
and a `communications gap' in that regard will not be recognized as good
cause."   United States v. Ricco, 52 F.3d 58, 62 (4th Cir.) (quotation
omitted), cert. denied, 116 S. Ct. 254 (1995).     Therefore, the district
court did not abuse its discretion in denying defendants' untimely motions
to suppress.


     Alternatively, Moore and Jones urge us to ignore their waiver and
review this issue "in the interest of justice."      We decline to do so.
Given the information police obtained from the confidential informants and
their surveillance of the Cutlass, given the consents to search the car and
its occupants after the initial stop, and given the warrant later obtained
to search Room 216, there was no plain error in admitting into evidence the
fruits of these investigative activities.   See United States v. Young, 470
U.S. 1, 15 (1985) (plain-error exception must be "used sparingly, solely
in those circumstances in which a miscarriage of justice would otherwise
result") (quotation omitted).


     Likewise, we reject Moore's contention that the district court should
have suppressed statements he made during the initial stop, prior to being
given Miranda warnings.    Moore waived this issue by not filing a timely
motion to suppress.   See United States v. Udey, 748 F.2d 1231, 1240 (8th
Cir. 1984), cert. denied, 472 U.S. 1017 (1985).   There was no plain error
because police may normally question without Miranda warnings during an
investigative stop.   See United States v. Willis, 967 F.2d 1220, 1224 (8th
Cir. 1992).




                                    -7-
                                     7
                        IV. A Sentencing Issue.


     Moore and Jones argue that the district court erred in concluding it
could not depart downward under U.S.S.G. § 5K2.0 on the ground that the
United States Sentencing Commission has urged Congress to eliminate the
statutory sentencing disparity between crack and powder cocaine.      We
expressly rejected this contention in United States v. Higgs, concluding
that "this is not a basis on which a court may rely to impose a sentence
outside of the applicable Guidelines range."   72 F.3d 69, 70 (8th Cir.
1995) (quotation omitted).


     The judgments of the district court are affirmed.


     A true copy.


           Attest:


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




                                  -8-
                                   8
