                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 07-3856
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the Western
                                         * District of Missouri.
Marvin D. Anthony, Sr.,                  *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: June 10, 2008
                                 Filed: August 8, 2008
                                  ___________

Before MELLOY, BEAM, and BENTON, Circuit Judges.
                           ___________

BEAM, Circuit Judge.

       A jury convicted Marvin D. Anthony, Sr., on one count of conspiracy to
distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846, and 851
and one count of distributing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(C), and 851. Anthony now appeals, arguing that the district court1 erred by
admitting evidence of his two prior felony convictions under Federal Rule of Evidence




      1
        The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
404(b), by refusing to give his proposed lesser-included-offense instruction, and by
denying his motion for new trial. We affirm.

I.    BACKGROUND

      After conducting a long-term investigation of a drug distribution organization,
Missouri police officers arrested several members of the group, including Anthony.
The government charged Anthony with both conspiring to distribute fifty grams or
more of cocaine base and distributing cocaine base. Before trial, the government,
pursuant to 21 U.S.C. § 851(a), filed an information stating that Anthony had two
prior felony convictions. As a result, Anthony faced increased punishment if
convicted; specifically, a mandatory sentence of life imprisonment if convicted on the
conspiracy count and 360 months' imprisonment if found guilty on the distribution
count. A jury convicted Anthony on both counts and the district court sentenced
Anthony to the mandatory sentences.

       Anthony now appeals his convictions on three grounds. One, the district court
erred by admitting his two prior felony convictions for drug-related offenses. Two,
the district court erred by refusing to give a lesser-included-offense instruction to the
jury. And three, the district court erred by denying Anthony's post-trial motion for
new trial on grounds that a guilty verdict on the conspiracy count, which subjected
Anthony to a mandatory life sentence, represented a manifest miscarriage of justice.
We consider each challenge below.

II.   DISCUSSION

      A.     Rule 404(b)

      Anthony first challenges the district court's ruling admitting his two prior felony
convictions for drug-related offenses under Rule 404(b). We review the admissibility

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of evidence under Rule 404(b) for an abuse of discretion. United States v. Voegtlin,
437 F.3d 741, 745 (8th Cir. 2006). The district court has broad discretion to admit
404(b) evidence, and we will reverse only when "such evidence clearly had no bearing
on the case and was introduced solely to prove the defendant's propensity to commit
criminal acts." Id. (internal quotation omitted).

       Specifically, Rule 404(b) provides that evidence of prior crimes or acts is
inadmissible to prove action in conformity therewith, but may be admissible to prove
"motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident." Fed. R. Evid. 404(b). In short, evidence of prior felony
convictions is admissible to prove a defendant's state of mind. Nevertheless, to be
admissible under Rule 404(b), prior felony convictions must be "(1) relevant to a
material issue; (2) proved by a preponderance of the evidence; (3) higher in probative
value than in prejudicial effect; and (4) similar in kind and close in time to the crime
charged." United States v. Vieth, 397 F.3d 615, 617-18 (8th Cir. 2005) (internal
quotation omitted); see also Fed. R. Evid. 403.

       In order for a prior felony conviction to be relevant, either the defendant's state
of mind or identity must be at issue. See United States v. Thomas, 58 F.3d 1318, 1321
(8th Cir. 1995). When a defendant makes a general denial defense, he places his state
of mind at issue. United States v. Gipson, 446 F.3d 828, 831 (8th Cir. 2006). Thus,
when a defendant makes a general denial, "prior drug . . . convictions are probative
[and likely admissible] to show that [a defendant] had the intent and knowledge
necessary for a jury to convict him." United States v. Gaddy, No. 07-2625, 2008 WL
2717681, at *5 (8th Cir. July 14, 2008); see also United States v. Logan, 121 F.3d
1172, 1178 (8th Cir. 1997) (holding that "evidence of prior possession of drugs, even
in an amount consistent only with personal use, is admissible to show such things as
knowledge and intent of a defendant charged with a crime in which intent to distribute
drugs is an element").



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       Here, Anthony only challenges the district court's admission of his prior felony
convictions under the first prong of our Rule 404(b) admissibility test: the relevance
prong. More specifically, he argues that the district court lacked a proper basis under
Rule 404(b) to admit his two prior convictions because he never presented a theory
of defense that placed his knowledge, motive, or intent at issue, making the
convictions irrelevant. But, as stated above, a general denial puts a defendant's
knowledge, motive, or intent in play. Accordingly, Anthony's general denial2 opened
the door for the government to introduce the prior felonies to prove the intent element
of the charges. Thus, the district court did not err and Anthony's claim fails.

      B.     Lesser-Included-Offense Instruction

       Anthony next contends that the district court erred by not giving his proffered
lesser-included-offense instruction to the jury. We review a district court's
formulation of jury instructions for an abuse of discretion. United States v. Ziesman,
409 F.3d 941, 949 (8th Cir. 2005).

       This circuit has formulated a test for when a trial court should give a lesser-
included-offense instruction. United States v. Gordon, 510 F.3d 811, 817 (8th Cir.
2007), cert. denied, 128 S. Ct. 2519 (2008). Under this test, a lesser-included jury
instruction is appropriate when the following exist: (1) a proper request for an


      2
        Anthony, however, argues that he did not make a general denial defense, but
merely argued that "he did not commit the act(s) comprising the offenses charged at
all." In order to avoid making a general denial defense, and thus remove the issue of
intent from a case, a defendant must satisfy a "stringent test." Thomas, 58 F.3d at
1321. To meet this test, a defendant must express a decision not to dispute his intent
with "sufficient clarity" so that the trial court will be justified in preventing the
admission of any evidence that seeks to raise the issue. Id. Here, Anthony did not
make it known to the district court, with sufficient clarity, that he did not intend to
challenge the intent prong of the charges. Accordingly, Anthony made only a general
denial that placed his state of mind in issue.

                                         -4-
instruction is made; (2) the lesser offense elements are identical to part of those of the
greater offense; (3) there was evidence that would justify conviction of the lesser
offense; (4) the proof on the element differentiating the two crimes was sufficiently
in dispute so that the jury might consistently find the defendant innocent of the greater
and guilty of the lesser included offense; and (5) the instruction could have been
requested by either party. Id.

       Before the district court submitted the case to the jury, Anthony requested that
the district court submit a question whereby the jury could find Anthony guilty of
conspiring to distribute five grams or more but less than fifty grams or more of
cocaine base. The district court rejected this proposal, and only submitted a question
asking whether Anthony conspired to distribute more than fifty grams of cocaine base.
The district court was well within its discretion to do so. Indeed, Anthony did not
dispute the amount of cocaine base he conspired to distribute; rather, he argued that
he never conspired to distribute any cocaine base. Had Anthony, at trial, disputed the
amount of cocaine base involved, then a lesser-included-offense instruction may have
been proper. But as that was not the case here, the district court did not abuse its
discretion by denying Anthony's request for a lesser-included-offense instruction.

      C.     Motion for New Trial

      Lastly, Anthony argues that the district court erred in denying his motion for
new trial. We review a district court's denial of a motion for new trial for a "clear and
manifest abuse of discretion." United States v. Lacey, 219 F.3d 779, 784 (8th Cir.
2000).

      A district court should grant a motion for new trial "only if the evidence weighs
heavily enough against the verdict that a miscarriage of justice may have occurred."
United States v. Brown, 956 F.2d 782, 786 (8th Cir. 1992) (internal quotation
omitted). A district court should exercise its authority to grant a new trial "sparingly

                                           -5-
and with caution." United States v. Campos, 306 F.3d 577, 579 (8th Cir. 2002)
(internal quotation omitted).

      Here, the evidence presented at trial adequately supports the jury's verdict.
Indeed, the jury's verdict was supported by the testimony of law enforcement officers
who investigated the conspiracy, cooperating witnesses, and evidence of a drug
transaction that Anthony conducted. Given this evidence, and the standard for
granting a motion for new trial, the district court did not abuse its discretion by
denying Anthony's motion.

III.   CONCLUSION

       For the foregoing reasons, we affirm the district court's decision.
                       ______________________________




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