                    United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 07-2295
                                ________________


United States of America,                *
                                         *
            Appellee,                    *
                                         *
      v.                                 *      Appeal from the United States
                                         *      District Court for the
Marco Anthony Ironi,                     *      District of Minnesota.
                                         *
            Appellant.                   *
                                         *
                                         *

                                 _______________

                            Submitted: February 14, 2008
                                Filed: May 13, 2008
                                ________________

Before MELLOY, GRUENDER and SHEPHERD, Circuit Judges.
                      ________________

GRUENDER, Circuit Judge.

       A jury convicted Marco Anthony Ironi of aiding and abetting possession with
intent to distribute cocaine, and the district court1 sentenced Ironi to 120 months’
imprisonment. For the reasons discussed below, we affirm.


      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
I.    BACKGROUND

       West Hennepin Police Department Sergeant Todd Boelter obtained information
that Richard Louis Ennen and Ironi were selling cocaine and methamphetamine at
2145 Beacon Street in Roseville, Minnesota, a residence owned by Ironi where he
lived and rented a room to Ennen. The residence was a small, two-story building with
a lockable bedroom on the first floor occupied by Ennen and an open bedroom
without a door encompassing the entire second floor occupied by Ironi. On November
16, 2005, a reliable confidential informant purchased cocaine from Ennen in a
controlled buy inside the residence while Ironi was home. Sergeant Boelter then
obtained a search warrant for the Beacon Street residence and Ennen’s vehicle. He
and other officers executed the warrant on November 17, 2005. During the search of
Ironi’s residence, Ironi and Ennen were both present. In the locked bedroom used by
Ennen, police officers recovered 782 grams of powder cocaine, 111 grams of
methamphetamine, $11,260 in cash, empty wrappers for kilograms of cocaine, a scale,
a bottle of Inositol (a cocaine cutting agent), and a ledger with drug notes. The ledger
detailed cocaine transactions between Ennen and Ironi over the previous fifteen
months. In Ironi’s bedroom, police officers recovered $1,321 in cash, drug packaging
material and two bottles of Inositol, one empty and one nearly full. In a detached
garage where Ennen parked his car and Ironi parked his motorcycle, police officers
recovered more empty wrappers for kilograms of cocaine.

       A grand jury returned a three-count superseding indictment. Count 1 of the
superseding indictment charged Ennen and Ironi with aiding and abetting possession
with intent to distribute approximately 782 grams of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2. Count 2 charged Ennen and Ironi with
aiding and abetting possession with intent to distribute approximately 82.7 grams of
actual methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 18
U.S.C. § 2. Count 3 charged only Ennen with possession with intent to distribute
approximately 34 grams of a mixture or substance containing methamphetamine, in

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violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C). Ennen pled guilty to the charges in the
superseding indictment. At his plea hearing, Ennen stated that he and Ironi sold
cocaine and methamphetamine from Ironi’s house.

       At Ironi’s trial, the Government argued that Ironi aided and abetted Ennen’s
drug dealing by renting a room to Ennen, knowing that he was storing and selling
drugs at the house. Sergeant Boelter testified that his informants told him Ennen was
storing and selling drugs at Ironi’s house, that one informant told him Ironi was
selling drugs from the house, and that one informant observed Ennen with a large
amount of cocaine and methamphetamine in Ironi’s house. He also testified about the
controlled buy the day before the November 17, 2005 search. Hennepin County
Detective Ron Clapp testified about the results of the search of Ironi’s house. Ironi
argued that he only let Ennen live in his house and did not know of or participate in
Ennen’s drug possession or dealings at the house. He testified that he purchased drugs
from Ennen at other locations but never in his house. As to the controlled buy at
Ironi’s house the day before the search, Ironi testified that he was either in his room
or the bathroom and did not hear the transaction.

       The district court prevented Ironi from calling Randy Seisler to testify about a
statement Ennen had allegedly made to him about Ennen’s drug dealings. Ironi’s
attorney initially represented to the district court that Seisler would testify that Ennen
told him “that there were no drug sales being conducted from the home in Roseville.”
The district court determined that this statement was not against Ennen’s penal interest
and could not be admitted as an out-of-court statement under Federal Rule of
Evidence 804(b)(3). The next day, Ironi’s attorney again attempted to call Seisler, this
time representing that he would testify that Ennen told him “[d]on’t tell Marco. He
doesn’t know I’m selling drugs from his home.” The district court excluded this
statement because there were no corroborating circumstances that clearly indicated the
trustworthiness of the statement. See Fed. R. Evid. 804(b)(3). The district court also
permitted the Government to present evidence of Ironi’s 1995 and 1997 cocaine

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possession convictions over Ironi’s objection. Finally, the district court denied Ironi’s
request for a buyer-seller jury instruction.

       The jury convicted Ironi of aiding and abetting possession with intent to
distribute cocaine, but it acquitted Ironi on the methamphetamine count. The district
court denied Ironi’s motion for judgment of acquittal and sentenced him to the
statutory mandatory minimum sentence of 120 months’ imprisonment and eight years’
supervised release.

II.   DISCUSSION

       Ironi appeals several of the district court’s rulings as well as the sufficiency of
the evidence supporting his conviction. He argues that (1) the district court erred in
refusing to admit Seisler’s testimony of Ennen’s out-of-court statement against his
penal interest that tended to exculpate Ironi; (2) the district court erred in allowing the
Government to admit evidence of Ironi’s prior drug crimes; (3) the district court erred
in not giving the jury a buyer-seller instruction; and (4) there was insufficient
evidence for the jury to conclude that Ironi was guilty of aiding and abetting
possession with intent to distribute cocaine.

      A.      Ennen’s Out-of-Court Statement

      We review a district court’s evidentiary ruling on whether to admit a statement
under Federal Rule of Evidence 804(b)(3) for an abuse of discretion. United States
v. Keltner, 147 F.3d 662, 670 (8th Cir. 1998). Under Rule 804(b)(3), a hearsay
statement is admissible if:

      (1) the declarant [is] unavailable to testify at trial, (2) the statement . . .
      tend[s] to subject the declarant to criminal liability to such an extent that
      no reasonable person in his position would have made the statement
      unless he believed it to be true, and (3) the statement [is] supported by

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      corroborating circumstances clearly indicating the trustworthiness of the
      statement.

Id. (quoting United States v. Bobo, 994 F.2d 524, 528 (8th Cir. 1992)).

        While Ironi proffered two different versions of Seisler’s proposed testimony,
he argues on appeal that the district court erred in refusing to allow Seisler to testify
about the second version, Ennen’s allegedly saying “[d]on’t tell Marco. He doesn’t
know I’m selling drugs from his home.” The parties do not contest the first part of the
three-part test. The second part is satisfied because the statement is an explicit
admission that Ennen is selling drugs and would tend to subject him to criminal
liability. As to the third part, though, the district court did not abuse its discretion in
holding that the second version was not supported by corroborating circumstances
clearly indicating the trustworthiness of the statement. See id. Instead, the
circumstances show that the second version was not trustworthy. That version was
undermined by Ennen’s own testimony at his plea hearing when he stated that both
he and Ironi sold drugs from Ironi’s house. Furthermore, the first version of Seisler’s
testimony proffered by Ironi’s counsel was dramatically different than the second
version at issue in this appeal. In the first version, Ennen allegedly told Seisler “that
there were no drug sales being conducted from the home in Roseville.” This
statement directly contradicted the second version that Ennen was selling drugs at
Ironi’s house. Without any corroborating evidence as to the trustworthiness of the
second version, the district court did not abuse its discretion in refusing to allow
Seisler to testify about Ennen’s alleged out-of-court statement.

      B.      Ironi’s Prior Crimes

       “We review the admission of evidence of prior bad acts for an abuse of
discretion.” United States v. Edelmann, 458 F.3d 791, 809 (8th Cir. 2006).



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      Evidence of prior bad acts is not admissible under [Federal] Rule [of
      Evidence] 404(b) solely to prove the defendant’s criminal disposition,
      but is admissible to show proof of . . . intent . . . [or] knowledge . . . .
      Bad acts evidence is admissible if (1) it is relevant to a material issue; (2)
      it is similar in kind and not overly remote in time to the crime charged;
      (3) it is supported by sufficient evidence; and (4) its potential prejudice
      does not substantially outweigh its probative value.

United States v. Jackson, 278 F.3d 769, 771 (8th Cir. 2002) (internal quotations
omitted). When prior bad acts are admitted to show intent, “the prior acts need not be
duplicates, but must be sufficiently similar to support an inference of criminal intent.”
Edelmann, 458 F.3d at 809. Ironi argues that the admission of his two cocaine
possession crimes from 1995 and 1997 was improper under Rule 404(b). We
disagree.

       First, the prior crimes are relevant to the issue of whether Ironi had the intent
and knowledge necessary to convict him of the aiding and abetting charges. Ironi
argues that he did not know Ennen was storing or selling drugs at his house. As we
have previously held, “a prior conviction for distributing drugs, and even the
possession of user-quantities of a controlled substance, are relevant under Rule 404(b)
to show knowledge and intent to commit a current charge of conspiracy to distribute
drugs.” United States v. Frazier, 280 F.3d 835, 847 (8th Cir. 2002); see also United
States v. Cook, 454 F.3d 938, 941 (8th Cir. 2006) (stating that we “have frequently
upheld the admission of prior drug convictions” to show intent when a defendant
denies committing a drug offense); United States v. Gipson, 446 F.3d 828, 831 (8th
Cir. 2006) (“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.”)
(quotation and alteration omitted).

      Second, the prior crimes are similar in kind and not overly remote in time to the
crime charged. The prior crimes of possession of cocaine are similar to the aiding and


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abetting possession with intent to distribute cocaine charge. See Gipson, 446 F.3d at
831. The two crimes occurred eight and ten years before the November 17, 2005
search and are not too remote in that they are “within the bounds of admission.”
Frazier, 280 F.3d at 847; see also United States v. Foster, 344 F.3d 799, 802 (8th Cir.
2003) (finding that a nine-year-old prior crime was not too remote); United States v.
Green, 151 F.3d 1111, 1114 (8th Cir. 1998) (listing cases where prior acts from
twelve and thirteen years ago were admissible).

        Third, the prior crimes are supported by sufficient evidence, as Ironi does not
dispute the two convictions. Fourth, any potential unfair prejudice does not
substantially outweigh the probative value of this evidence. The prior crimes had
probative value because Ironi argued that he did not have knowledge of Ennen’s drug
possession or drug dealings at his house and did not have the intent to participate in
them. However, the prior possession convictions are relevant to establishing that Ironi
had the intent and knowledge necessary for a jury to convict him of aiding and
abetting possession with intent to distribute cocaine and methamphetamine. His prior
convictions rebut his argument that he lacks intent to participate in the cocaine
dealings and demonstrate that he had knowledge about cocaine and the types of
materials and objects typically found in the presence of cocaine, such as scales, drug
packaging materials and cocaine cutting agents. Furthermore, any prejudicial effect
of admitting the prior crimes was reduced by the district court’s limiting instruction
to the jury that it could only consider the prior crimes to determine Ironi’s intent. See
Frazier, 280 F.3d at 848. Therefore, the district court did not abuse its discretion in
admitting Ironi’s prior drug crimes.2


      2
         Ironi also argues that the prior crimes are inadmissible because he felt forced
to testify because they were admitted. Instead, as Ironi’s counsel noted during closing
argument, Ironi did not have to testify but chose to testify. Thus, Ironi made the
strategic decision to testify, and the admission of the prior crimes did not force him
to do so. We reject this argument.


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      C.      Buyer-Seller Instruction

       “We review a district court’s rejection of defendant’s proposed instruction for
abuse of discretion, and we recognize that district courts are entitled to broad
discretion in formulating the jury instructions.” United States v. Hayes, 518 F.3d 989,
994 (8th Cir. 2008) (internal quotation and citations omitted). Ironi argues that the
district court abused its discretion in refusing to submit his buyer-seller instruction to
the jury. We have acknowledged that the use of the buyer-seller instruction in
conspiracy cases may be appropriate. See United States v. Adams, 401 F.3d 886, 898
(8th Cir. 2005); United States v. Jones, 160 F.3d 473, 481-82 (8th Cir. 1998); United
States v. Prieskorn, 658 F.2d 631, 636 (8th Cir. 1981) (“[P]roof of a buyer-seller
relationship, without more, is inadequate to tie the buyer to a larger conspiracy . . . .”)
(quotation omitted). Ironi, though, was charged with aiding and abetting possession
with intent to distribute cocaine and methamphetamine, not conspiracy. We have not
specifically held whether the buyer-seller instruction may also be used in an aiding
and abetting case. See United States v. Johnson, 495 F.3d 951, 974 (8th Cir. 2007),
petition for cert. filed, -- U.S.L.W. --- (U.S. Feb. 19, 2008) (No. 07-9456). However,
even assuming, without deciding, that a buyer-seller instruction in an aiding and
abetting case could be appropriate, the district court did not abuse its discretion in
refusing to give this instruction.

       A buyer-seller instruction is “not appropriate when there is evidence of multiple
drug transactions, as opposed to a single, isolated sale.” United States v. Hester, 140
F.3d 753, 757 (8th Cir. 1998). Also, the instruction is only proper “if the evidence
support[s the defendant’s] theory.” United States v. Jones, 160 F.3d 473, 481 (8th Cir.


      Ironi also argues that the admission of evidence that he possessed a small
amount of cocaine at the time of the November 17, 2005 search was improper. We
find no basis for this argument, and he does not provide any analysis for this
argument. Therefore, we find no abuse of discretion in admitting this evidence. See
Fed. R. Evid. 401, 403.

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1998). In this case, the ledger found in Ennen’s bedroom showed numerous drug
transactions between Ennen and Ironi over a fifteen-month period. This evidence of
multiple drug transactions prevented the district court from giving the buyer-seller
instruction to the jury. See Hester, 140 F.3d at 757. As to Ironi’s theory that he was
only a buyer who purchased drugs from Ennen, Ironi’s testimony at trial contradicted
that theory because he testified that he gave drugs to other people. Giving drugs to
others, even without receiving money in exchange, is distributing drugs under §
841(a)(1). Id. at 760-61 (“Sharing drugs with another constitutes ‘distribution’ under
§ 841(a)(1).”) (quotation omitted); see also United States v. Fregoso, 60 F.3d 1314,
1325 (8th Cir. 1995). The evidence shows that Ironi was involved in multiple drug
transactions and does not support Ironi’s theory that he was only a buyer of drugs.
Therefore, the district court did not abuse its discretion in refusing to give the buyer-
seller instruction to the jury.

      D.     Sufficiency of the Evidence

       Ironi argues that the district court should have granted his motion for judgment
of acquittal because there was insufficient evidence to support the jury’s verdict and
the jury’s acquittal on the methamphetamine count proves that the jury could not have
found Ironi guilty on the cocaine count. We review de novo whether the district court
properly denied Ironi’s motion for judgment of acquittal. See United States v.
Santoyo-Torres, 518 F.3d 620, 623 (8th Cir. 2008). We are unpersuaded by Ironi’s
argument that the “inconsistent” verdicts of the jury prove that there was insufficient
evidence for the guilty verdict on the cocaine count. Even if we characterize the
verdicts as inconsistent, “[w]e have previously held, when considering what are
characterized as inconsistent verdicts, that we only ask whether the government
presented sufficient evidence to support the conviction. We are reluctant to delve into
the minds of the jurors to determine the reasons for apparently inconsistent verdicts.”
United States v. Opare-Addo, 486 F.3d 414, 416 (8th Cir. 2007) (internal citation
omitted). Thus, we turn to the sufficiency of the evidence.

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       “We review challenges to the sufficiency of the evidence presented at trial de
novo and reverse only if no reasonable jury could find guilt beyond a reasonable
doubt.” Hayes, 518 F.3d at 993. “In conducting this review, we view the evidence
in the light most favorable to the verdict, giving the verdict the benefit of all
reasonable inferences.” Id. Ironi argues that the evidence only shows that Ennen was
involved in distributing cocaine and that Ironi did not know Ennen was storing and
selling cocaine at his Beacon Street residence. Instead, Ironi argues he had the
Inositol in his room for body building purposes and, at most, had a buyer-seller
relationship with Ennen, all of which occurred at locations other than his residence.

       In light of all of the evidence presented by the Government, we conclude a
reasonable jury could have found Ironi guilty beyond a reasonable doubt of aiding and
abetting Ennen’s possession with intent to distribute cocaine. See id. The
Government had to prove that Ironi “associated himself with the unlawful venture, he
participated in the unlawful venture as something he wished to bring about, and he
sought by his action to make the unlawful venture succeed.” United States v.
Blaylock, 421 F.3d 758, 773 (8th Cir. 2005). The Government presented evidence that
Ironi owned the Beacon Street residence, a small, two-story building, and knew Ennen
was a drug dealer when Ennen moved into the residence. Sergeant Boelter testified
that informants told him Ennen and Ironi sold drugs from the residence, and Ironi was
in his residence when the controlled buy between Ennen and an informant occurred
the day before the November 17, 2005 search. The search revealed drug-related items
in both Ennen’s and Ironi’s bedrooms and in their shared garage. Drug packaging
materials, $1,321 in cash, and two bottles of Inositol were located in Ironi’s bedroom,
and empty wrappers for kilograms of cocaine were found in the garage. In addition
to the cocaine, cash, empty wrappers, scale and Inositol found in Ennen’s bedroom,
Ennen’s ledger revealed that Ironi bought cocaine from Ennen for at least fifteen
months.




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       This evidence was sufficient for a reasonable jury to find that Ironi aided and
abetted possession with intent to distribute cocaine. See United States v. Ellefson, 419
F.3d 859, 864 (8th Cir. 2005) (finding a jury could have reasonably found that
defendant aided and abetted possession with intent to distribute cocaine because she
knew the cocaine was stored in her apartment); see also United States v. Engler, 422
F.3d 692, 695 (8th Cir. 2005). While Ironi testified that he did not know of Ennen’s
activities in his residence, the jury could reject Ironi’s explanation, consider the
remaining evidence, and make reasonable inferences. See United States v. Blanton,
281 F.3d 771, 774 (8th Cir. 2002) (“[T]he jury was entitled to believe the
government’s witnesses and reject [the defendant’s] explanations . . . .”). Viewing the
evidence in the light most favorable to the verdict and making all reasonable
inferences in favor of the verdict, we find that there was sufficient evidence for the
jury’s verdict.

III.   CONCLUSION

       For the foregoing reasons, we affirm Ironi’s conviction.
                        ____________________________




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