                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 08-3946
                                 ________________

United States of America,                   *
                                            *
             Appellee,                      *
                                            *      Appeal from the United States
      v.                                    *      District Court for the
                                            *      Western District of Missouri.
Dwight A. Thomas,                           *
                                            *             [PUBLISHED]
             Appellant.                     *

                                 ________________

                                 Submitted: September 21, 2009
                                     Filed: January 29, 2010
                                 ________________

Before MURPHY, HANSEN, and BYE, Circuit Judges.
                        ________________

HANSEN, Circuit Judge.

       Dwight A. Thomas appeals a judgment entered on a jury verdict finding him
guilty of distributing crack cocaine in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C), and possessing with intent to distribute 50 grams or more of crack cocaine
in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii), and § 851. Thomas challenges
the district court's1 decision to admit evidence surrounding a subsequent arrest, as well
as the sufficiency of the evidence adduced at trial to convict him. We affirm.

      1
        The Honorable Greg Kays, United States District Judge for the Western
District of Missouri.
                                          I.

       On April 1, 2004, after conferring with a confidential informant, Kansas City
Police Department Detective Luis Ortiz commenced an investigation of suspected
crack cocaine trafficking near the 6100 block of Olive Street in Kansas City. On April
2, Detective Ortiz met with the confidential informant to observe the informant
arrange to purchase crack cocaine from a suspected drug dealer. Detective Ortiz
watched the informant dial phone number xxx-xxx-9980, and the detective listened
as the informant arranged to purchase one hundred dollars' worth of crack cocaine.

       Detective Ortiz then prepared the informant to purchase the drugs from the
suspect. The detective equipped the informant with a transmitting device. Detective
Ortiz searched the informant for drugs or weapons. Finding none, he provided the
informant with five twenty dollar bills, which the detective had previously
photocopied to record the serial numbers. The detective instructed the informant to
purchase one hundred dollars' worth of crack cocaine—as arranged in the earlier
telephone call—and to arrange a future purchase of two additional ounces of crack
cocaine.

       At approximately 12:20 p.m. that same day, Detective Ortiz drove the informant
to the 6100 block of Olive Street. The detective watched the informant knock on the
front door of the residence located at 6142 Olive Street. A man whom Detective Ortiz
identified as the defendant, Dwight Thomas, answered the door and ushered the
informant inside. The informant was inside for no more than five minutes. Detective
Ortiz monitored the transmissions from the transmitting device during those five
minutes. He listened to the informant arrange for the purchase of two additional
ounces of crack cocaine, to occur later that day. During the course of that
conversation, Detective Ortiz heard only two voices.



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       Detective Ortiz observed the informant exit 6142 Olive Street and walk directly
to the detective's car. In the car, the informant gave Detective Ortiz approximately an
eighth of an ounce of crack cocaine. The detective again searched the informant and
found the informant no longer possessed the prerecorded "buy money." Soon
thereafter, Thomas exited the house and drove off in a green 1995 Jeep that had been
parked in front of 6142 Olive Street during the informant's drug purchase. The Jeep
returned about three minutes later, and Thomas exited the Jeep and used keys to
unlock and enter the front door of 6142 Olive Street.

       After Thomas reentered the house, Detective Ortiz departed to obtain a warrant
to search the Olive Street residence. After he obtained the search warrant, Detective
Ortiz directed the informant to schedule the purchase of an additional two ounces of
crack cocaine for that same day. The informant again dialed xxx-xxx-9980, and
Detective Ortiz again monitored the phone call. As a result of that phone call,
Detective Ortiz coordinated with a number of other police officers to execute the
search warrant.

       At about 3:45 p.m. the same day, officers secured the perimeter of 6142 Olive
Street in preparation for executing the search warrant. Detective Ortiz observed
Thomas standing on the front porch. Just as the officers were about to execute the
warrant, a previously unknown individual arrived at 6142 Olive Street by car. When
the individual was out of his car and contacting Thomas, police executed the search
warrant. Both individuals were secured, and Thomas accurately identified himself to
police. A search of Thomas's person yielded a cellular telephone and over one
thousand dollars in cash, including the five photocopied twenty dollar bills given to
the informant prior to the drug transaction earlier that day. The other individual
possessed an amount of crack cocaine consistent with personal use.

      Police officers searched 6142 Olive Street. No one was present inside the
residence. Detective Ortiz entered the house and observed a scale with white residue

                                         -3-
in the kitchen. Just inches away were baggies containing a white substance; the
substance was later tested and determined to be 55.61 grams of crack cocaine. Also
in the kitchen, police found two cell phone bills directed to the attention of Dwight
Thomas and reflecting services provided to phone number xxx-xxx-9980. One of the
bills was dated March 26, 2004. The keys found on Thomas's person operated the
locks on the doors to 6142 Olive Street.

      Officers also searched the green 1995 Jeep. They found another cell phone bill
and Western Union receipts, both in Thomas's name and both listing the xxx-xxx-
9980 phone number. Thomas admitted that xxx-xxx-9980 was his telephone number.

       In addition to evidence gathered during the April 2004 investigation, the
Government gave notice of its intent to introduce evidence of Thomas's involvement
in subsequent drug trafficking. The district court held a pretrial hearing regarding this
evidence, where Thomas challenged its admissibility under Federal Rule of Evidence
404(b). Over Thomas's objection, evidence tending to prove the following was
admitted:

       In early January 2008, a confidential informant contacted Kansas City Police
Department Detective Don Stanze regarding suspected drug trafficking. The
informant indicated a man driving a red SUV, known to the informant as "Ed," was
dealing drugs at a residence located at 5216 Wabash Avenue, in Kansas City. When
Detective Stanze commenced an investigation of the suspected drug trafficking at that
address, he discovered the utilities were registered to Dwight Thomas. Detective
Stanze had been involved in the 2004 investigation of Thomas and consequently
recognized his name. On numerous occasions, Detective Stanze observed Thomas
driving the red SUV to and from 5216 Wabash Avenue. On one occasion, Detective
Stanze witnessed the red SUV depart from 5216 Wabash Avenue, and he attempted
to follow it. When the detective lost sight of the vehicle, he requested that other



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officers assist him to track the vehicle. A fellow officer located the red SUV at 4930
Wabash Avenue.

       On February 19, 2008, Detective Stanze contacted the confidential informant
to arrange a controlled buy of crack cocaine from the man known to the informant as
Ed. In Detective Stanze's presence and using a speaker phone, the informant dialed
xxx-xxx-1926 and arranged to purchase crack cocaine. During that conversation, the
recipient of the call advised the informant that the recipient was at his "cook house."
As a result of the conversation, Detective Stanze advised the informant he would
follow him to 4930 Wabash Avenue in approximately one hour.

        Detective Stanze met the informant at a covert location, searched the informant
and his automobile, equipped him with a transmitting device, and provided him with
$450 of prerecorded buy money. The detective and the informant then drove in
separate automobiles to 4930 Wabash Avenue. Detective Stanze watched as the
informant entered the house, and he listened as the transaction was completed. The
red SUV was parked at 4930 Wabash Avenue at that time. After the transaction,
Detective Stanze maintained visual contact with the informant until the two again met
at the agreed upon covert location. When they met, the informant provided Detective
Stanze with 14.1 grams of crack cocaine. At the conclusion of the meeting, Detective
Stanze concluded Thomas was selling and storing drugs at 4930 Wabash Avenue.
Consequently, Detective Stanze obtained search warrants for two residences: 4930
Wabash Avenue and 5216 Wabash Avenue.

      Detective Stanze employed the confidential informant to arrange a second
controlled purchase of drugs, to coincide with the execution of the search warrants.
Again, on February 20, Detective Stanze watched as the informant dialed xxx-xxx-
1926 and listened on the speakerphone as the informant arranged to purchase 7 grams
of crack cocaine for $225. Later the same day, the detective again met with the
informant, searched him, equipped him with a transmitting device, and provided him

                                         -5-
with prerecorded "buy money." He watched as the informant entered the house at
4930 Wabash Avenue, and he listened to a drug transaction via the hidden
transmitting device. Detective Stanze recognized the informant's voice as well as the
same voice from the previous phone calls and previous transaction. After the
informant exited 4930 Wabash Avenue, Detective Stanze followed him to a covert
location. There, the informant gave Detective Stanze crack cocaine.

       After debriefing the informant, Detective Stanze returned to 4930 Wabash
Avenue, where a police tactical unit was executing the search warrant. Police
detained five people in the residence, including Thomas. Detective Stanze recognized
Thomas's voice from monitoring the informant's phone calls and drug transactions.
At that time, Thomas possessed $4298, including the $225 in prerecorded buy money.
Police also found multiple bags of crack cocaine on the kitchen counter, digital scales
of the type used to weigh drugs, and two cell phones. There was a trail of crack
cocaine on the floor between the kitchen and the location where police had detained
Thomas. Thomas acknowledged ownership of one of the cell phones found in the
kitchen near the drugs. Detective Stanze dialed the number used to arrange the two
controlled buys—xxx-xxx-1926—and Thomas's phone rang. Police also found 14
grams of crack cocaine hidden in the basement along with a digital scale. Upon
searching 5216 Wabash Avenue, police found a digital scale and a gas bill directed
to Thomas.

       Thomas moved for a judgment of acquittal at the close of the Government's case
and also at the close of all evidence. The district court denied both motions and
submitted the two count indictment to the jury. The jury returned a verdict of guilty
on both counts. Thomas appeals, arguing (1) evidence of the 2008 investigation and
arrest was introduced in violation of Federal Rule of Evidence 404(b); and (2) there
was insufficient evidence to support the jury's verdict.




                                         -6-
                                          II.

       The district court enjoys broad discretion to admit evidence of other crimes.
United States v. Thomas, 398 F.3d 1058, 1062 (8th Cir. 2005). We review a district
court's decision to admit evidence under Federal Rule of Evidence 404(b) for abuse
of discretion and "'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. (quoting United States v. Howard, 235 F.3d 366, 372 (8th Cir. 2000)).

       While outlawing admission of evidence of other crimes that is proffered "to
prove the character of a person in order to show action in conformity therewith,"
Federal Rule of Evidence 404(b) allows such evidence "for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident." It is well-settled in this circuit that the rule is one 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 other crimes is admissible under Rule 404(b) if it is
"(1) relevant to a material issue; (2) similar in kind and close in time to the crime
charged; (3) proven by a preponderance of the evidence; and (4) if the potential
prejudice does not substantially outweigh its probative value." Thomas, 398 F.3d at
1062.

       Thomas argues that the evidence of the 2008 crack cocaine trafficking fails
three of the four requirements. He argues that the evidence is not relevant to a
material issue raised at trial, is not similar in kind and close in time to the crime
charged, and that the probative value of the evidence is substantially outweighed by
its prejudicial value.

      Thomas pled not guilty and generally denied participation in the charged
crimes, requiring the Government to shoulder the burden of introducing proof beyond

                                          -7-
a reasonable doubt of every element of each offense charged. United States v.
Johnson, 934 F.2d 936, 939-40 (8th Cir. 1991). Nonetheless, Thomas relies on
United States v. Jenkins, 7 F.3d 803, 806-07 (8th Cir. 1993), and he argues that
evidence of the 2008 investigation is not relevant because "intent is not an issue when
the defense at trial is a complete denial that the defendant participated in the drug
transactions charged." (Appellant's Br. at 11.) We have previously rejected the
(effectively identical) argument that, while intent may be an issue in a given case,
intent is not in issue when a defendant completely denies participation in the crime.
See Johnson, 439 F.3d at 952 (noting "the Supreme Court's decision in Old Chief v.
United States, 519 U.S. 172 (1997), effectively overruled Jenkins").

       Intent was an element of each of the offenses charged in this case. See Johnson,
934 F.2d at 939 n. 5 (elements of distribution offense); United States v. Timlick, 481
F.3d 1080, 1082 (8th Cir. 2007) (elements of possession offense). This is not the first
time we have held knowledge and intent are material issues in cases involving
distribution of narcotics in violation of 21 U.S.C. § 841(a)(1). See Johnson, 934 F.2d
at 939. Evidence of other acts is generally admissible to establish those elements. Id.
Additionally, "'the mere subsequency of an act to that charged in an indictment does
not on that ground alone make it incompetent to establish intent or motive.'" Id. at 940
(quoting McConkey v. United States, 444 F.2d 788, 790 (8th Cir.) (per curiam), cert.
denied, 404 U.S. 885 (1971)). We reject Thomas's argument that evidence of the 2008
investigation was irrelevant.

       Thomas also argues that evidence from the 2008 investigation is not sufficiently
close in time to be admissible under Rule 404(b). "There is no absolute rule regarding
the number of years that can separate offenses" admitted under Rule 404(b). United
States v. Edelman, 458 F.3d 791, 810 (8th Cir. 2006). This is because "[a]lthough
proximity in time combined with similarity in type of crime virtually guarantees
admittance of prior bad acts evidence, these are only factors" useful for evaluating
"[t]he ultimate question . . . whether the evidence is admissible to prove any relevant

                                          -8-
issue other than the character of the defendant or his propensity toward criminal
activity." United States v. Drew, 894 F.2d 965, 970 (8th Cir.) (citations and
quotations omitted), cert. denied, 494 U.S. 1089 (1990). Where the extrinsic act is
extremely similar to the crime at issue, evidence of the act will usually be rendered
irrelevant only by "an enormous lapse of time." United States v. Anifowoshe, 307
F.3d 643, 647 (7th Cir. 2002); cf. Drew, 894 F.2d at 970 ("In the case of signature
crimes, or other crimes by the accused so nearly identical in method as to earmark
them as the handiwork of the accused, the time factor is obviously much less
important than in the typical 404(b) case." (citation and quotations omitted)).

       The similarity of the other acts evidence introduced in this case is unquestioned.
In fact, Thomas stresses the similarity of the evidence in attempting to show he was
prejudiced by its introduction. The 2004 and 2008 investigations occurred in the same
general geographic area. In each instance, police observed the confidential informant
dial Thomas's telephone number and arrange a drug transaction; police accompanied
or followed the informant to a residence controlled by Thomas, where his automobile
was parked. Subsequent to the drug transaction in each case, police performed
searches of Thomas and the residence. Both times, Thomas was found with large
quantities of cash, including prerecorded buy money, and the residence housed crack
cocaine, paraphernalia often associated with drug distribution, and personal
documents implicating Thomas.

       We have approved the admission of evidence of similar crimes that occurred
a decade before the charged crime. See, e.g., United States v. Ironi, 525 F.3d 683, 688
(8th Cir. 2008) (allowing evidence of possession of cocaine occurring eight and ten
years before the aiding and abetting possession with intent to distribute cocaine charge
at issue). The terms of Rule 404(b) draw no distinction between prior and subsequent
acts that would support different analyses, Anifowoshe, 307 F.3d at 646-47, nor have
we applied different analyses to evaluate the admission of prior and subsequent acts,
see, e.g., United States v. DeAngelo, 13 F.3d 1228, 1231 (8th Cir.) (applying well-

                                          -9-
established four-factor test to determine admissibility of subsequent act evidence),
cert. denied, 512 U.S. 1224 (1994). Considering the similarities between the crimes
charged and the subsequent-acts evidence, we cannot say the mere passage of four
years' time renders the evidence irrelevant to show knowledge or intent.

       Finally, Thomas argues the probative value of the subsequent-acts evidence is
substantially outweighed by the danger of unfair prejudice. Again, we have held
evidence of similar drug activity to be probative of intent in proving a previous
violation of 21 U.S.C. § 841(a)(1). Johnson, 934 F.2d at 940. And again, the
subsequent-acts evidence is undeniably similar, and Thomas acknowledges the
similarity. Additionally, the district court instructed the jury that evidence of the 2008
investigation could be used only to establish Thomas's intent, knowledge, or lack of
mistake. Such limiting instructions minimize the danger of unfair prejudice. United
States v. Hessman, 493 F.3d 977, 983 (8th Cir. 2007), cert. denied 128 S. Ct. 1100
(2008). Given the relevance of the evidence—as bolstered by significant
similarities—and the limiting instruction, we cannot say the evidence "'clearly had no
bearing on the case and was introduced solely to prove the defendant's propensity to
commit criminal acts.'" See Thomas, 398 F.3d at 1062 (quoting Howard, 235 F.3d at
372). Consequently, the district court did not abuse its discretion.

                                           III.

      Thomas also contends there was insufficient evidence to convict him of either
count of the indictment. We review de novo the denial of a motion for judgment of
acquittal, and "[w]e may reverse only if no reasonable jury could have found the
defendant guilty beyond a reasonable doubt." Timlick, 481 F.3d at 1082.

      Thomas argues the evidence at trial did not foreclose the possibility that another
person was inside the 6142 Olive Street residence on April 2, 2004, when the
confidential informant used the prerecorded buy money to purchase crack cocaine.


                                          -10-
As to the second count—possession with intent to distribute 50 grams or more of
crack cocaine—Thomas's argument does nothing to address binding circuit precedent
that dictates an affirmance of the jury's verdict. Count two required proof beyond a
reasonable doubt that Thomas (1) knowingly possessed 50 grams or more of crack
cocaine, and (2) intended to distribute the crack cocaine. 21 U.S.C. § 841(a)(1) and
(b)(1)(A)(iii); Timlick, 481 F.3d at 1082. The element of knowing possession may
be satisfied with proof of constructive possession. Timlick, 481 F.3d at 1082. "We
have joined 'every other circuit to address this issue [and have held] that the holder of
the key, be it to the dwelling, vehicle or motel room in question, has constructive
possession of the contents therein.'" Id. at 1083 (quoting United States v. Brett, 872
F.2d 1365, 1369 n.3 (8th Cir.) (collecting cases) (alteration in original), cert. denied,
493 U.S. 932 (1989)). Additionally, the Government need not show exclusive
possession; joint possession suffices. Id. Thomas possessed keys that operated the
front door locks to 6142 Olive Street. That evidence alone supports an inference of
Thomas's constructive possession of the contents of the house, including over 50
grams of crack cocaine. The record similarly contained sufficient evidence of an
intent to distribute. Police seized 55.61 grams of cocaine in the April 2 search. Expert
testimony established that 55.61 grams of crack cocaine is consistent with distribution,
not personal use. See United States v. Bell, 477 F.3d 607, 613 (8th Cir. 2007)
(considering expert testimony that seven grams of crack cocaine evidenced intent to
distribute). "A large quantity of drugs, standing alone, is sufficient evidence of . . .
intent to distribute." United States v. Serrano-Lopez, 366 F.3d 628, 635 (8th Cir.
2004). Police also discovered a digital scale with white residue in the house and over
$1000 cash on Thomas's person. See United States v. Schubel, 912 F.2d 952, 956 (8th
Cir. 1990) ("The presence of equipment to weigh and measure narcotics . . . and large
sums of cash are common indicia of drug trafficking and are . . . circumstantial
evidence of intent to distribute."). The evidence was sufficient to support a guilty
verdict on count two.




                                          -11-
       Thomas's argument that insufficient evidence exists to support the guilty verdict
on the first count suffers from similar infirmities. He argues a third person could have
been present at 6142 Olive Street when the informant visited to purchase drugs. His
argument must be rejected "because the jury's verdict must be upheld if any rational
interpretation of the evidence, regardless of countervailing evidence, would allow a
reasonable-minded jury to conclude guilt beyond a reasonable doubt." United States
v. Jimenez-Serrato, 336 F.3d 713, 715 (8th Cir. 2003). If the evidence adduced at trial
rationally supports conflicting hypotheses, we refuse to disturb the conviction. Id.
When this court reviews the sufficiency of the evidence to support a jury verdict, it
treats circumstantial evidence no differently than direct evidence. United States v.
Lam, 338 F.3d 868, 871 (8th Cir. 2003).

        The Government proffered significant circumstantial evidence in this case.
Detective Ortiz watched the informant dial Thomas's phone number and listened to
what he believed was the scheduling of a drug transaction. Thomas greeted the
informant at the door of the house where the informant bought crack cocaine. The
detective heard only two voices during the transaction. Shortly thereafter, Thomas left
the house driving a 1995 Jeep and returned, using keys to operate the front door. A
few hours later—after the informant dialed Thomas's phone number and scheduled a
second transaction—police searched the same house and discovered distribution
quantities of crack cocaine near other incidents of drug distribution. At the same time,
Thomas was found with keys to the house, keys to the 1995 Jeep, and a large quantity
of cash—including all five prerecorded twenty dollar bills. More crack cocaine was
discovered in the Jeep, along with documents bearing Thomas's name and phone
number. Finally, there was evidence Thomas was arrested on a subsequent occasion
under circumstances evidencing an intent to distribute crack cocaine. Even if the
evidence allowed another rational explanation, our review is strictly circumscribed by
a necessary respect for the jury's verdict. One rational interpretation of the evidence
is that the informant called Thomas's phone; Thomas personally answered his phone
and scheduled a drug buy; Thomas welcomed the informant into the house and sold

                                         -12-
him crack cocaine in exchange for the prerecorded buy money later found on
Thomas's person. Because the evidence rationally supports an inference that Thomas
sold crack cocaine to the confidential informant in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(C), we will not and cannot disturb the jury's verdict. See Jimenez-Serrato,
336 F.3d at 715.

                                         IV.

      Accordingly, the judgment of the district court is affirmed.
                           _____________________




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