                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 04-3205
      ___________

United States of America,             *
                                      *
            Plaintiff - Appellee,     *
                                      *
      v.                              *
                                      *
Adolfo Martinez Ruiz,                 *
                                      *
            Defendant - Appellant.    *

      ___________                         Appeals from the United States
                                          District Court for the
      No. 04-3248                         District of Minnesota.
      ___________

United States of America,             *
                                      *
            Plaintiff - Appellee,     *
                                      *
      v.                              *
                                      *
Evencio Martinez Ruiz,                *
also known as Juan Zabala,            *
                                      *
            Defendant - Appellant.    *
      ___________

      No. 04-3251
      ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      *
      v.                              *
                                      *
Steven Anthony Martinez,              *
                                      *
           Defendant - Appellant.     *
                                 ___________

                             Submitted: May 11, 2005
                                Filed: July 5, 2005
                                 ___________

Before MORRIS SHEPPARD ARNOLD, MURPHY, and BENTON, Circuit Judges.
                          ___________

MURPHY, Circuit Judge.

       A jury convicted Adolfo Martinez Ruiz, Evencio Martinez Ruiz, and Steven
Anthony Martinez of various counts relating to the distribution of drugs. The district
court1 sentenced Adolfo2 to 121 months on two convictions, Evencio to 121 months
on five convictions, and Steven to concurrent sentences of 120 months for
convictions on two counts and 78 months on three counts. They appeal, claiming


      1
       The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
      2
      Because of similarity in family names, we refer to each appellant by his first
name to avoid confusion.

                                         -2-
Fourth Amendment violations, erroneous evidentiary rulings, insufficiency of the
evidence, and misjoinder. We affirm.

                                         I.

       Minnesota Bureau of Criminal Apprehension (BCA) Agent Enrique Vasquez
received a tip in November 2003 that Melvin Benitez was trying to sell drugs at a
Gold'n Plump chicken processing plant near St. Cloud, Minnesota. Vasquez called
Benitez to set up a purchase of methamphetamine. After several conversations they
arranged that Vasquez would purchase three and a half pounds of methamphetamine
for $31,500. The transaction was arranged for November 14 between 8:00 and 8:30
a.m. in the parking lot of a Kentucky Fried Chicken (KFC) in Waite Park. Benitez
told Vasquez to set aside $3,500 of the purchase money because the proceeds were
to be divided between himself and the owner of the drugs.

       Vasquez called Benitez on the morning of November 14 and left a message
around 7:35 a.m. Benitez called him back around 8:00 a.m., told him that he had just
finished work and would be ready in about twenty minutes, and said that he would
be driving either a pickup truck or a Honda with Washington plates.3 Benitez called
Vasquez again around 8:25 a.m. and asked him if he would do the deal at an
apartment building. Vasquez heard voices speaking in Spanish in the background and
refused to change the location of the meeting. Benitez agreed to meet at the KFC.

       Benitez arrived at the KFC parking lot around 8:35 a.m. in a black pick up
truck driven by Adolfo. Benitez went over to Vasquez's vehicle carrying a soft black
cooler, and Vasquez asked him why he had brought someone else along. Benitez said
his companion was the owner, which Vasquez understood to mean the owner of the


      3
      This was what Vasquez said about the description of the Honda at the
suppression hearing; at trial he testified that Benitez had mentioned a black Honda.

                                        -3-
methamphetamine, not the owner of the truck. When Vasquez asked Benitez if the
driver was the main guy, he said no. Vasqeuz told Benitez that he wanted to see the
drugs, and Benitez handed him the black cooler which contained about three and a
half pounds of methamphetamine.            Vasquez opened the cooler, saw
methamphetamine inside, and gave an arrest signal. Benitez and Adolfo were then
arrested.

       BCA Agent Adam Castilleja interviewed Benitez in Spanish at the scene of the
arrest. Benitez told him that Adolfo had picked up the methamphetamine from
building 811 of the nearby Gatewood Apartment complex. Castilleja then spoke with
Adolfo and told him that Benitez said the drugs were his. Adolfo said that was not
true and that Benitez had obtained the black bag at building 901 of the Gatewood
Apartments, the building next to the one Benitez had mentioned. Adolfo consented
to a search of his trailer home in St. Cloud, and officers found a .40 caliber handgun
in a drawer under the bed in a bedroom. They also found .38 caliber ammunition on
the headboard of the bed. Adolfo admitted that the gun and ammunition were his.

       While officers were searching the black pickup truck in the KFC parking lot,
a cell phone on the seat began ringing with the number of the caller displayed. The
number was traced to an apartment where Evencio and Steven lived, at 301 Birch
Street in Rockville, apartment 101. Evencio and Steven rented the apartment under
the names Juan Zabala and Antonio Orduna. Officers were dispatched to the Birch
Street apartment building where they saw a black Honda with Washington plates and
a red pickup truck in the parking lot; both were registered to Adolfo. They then
observed Evencio make at least two trips from building 301 to building 305, where
he remained for five to ten minutes each time. On the first trip, he stopped inside the
Honda for about thirty seconds before walking over to building 305. Evencio and
Steven left in the black Honda about five minutes after Evencio returned from his last
trip.



                                         -4-
       Officers informed BCA Agent Billings that the men were leaving, and he
instructed them to stop the car and identify the occupants because the Honda met the
description of the other vehicle Benitez had told Vasquez about. Officers stopped the
car, but they were unable to communicate with either Evencio or Steven because of
language difficulties. Billings directed that they be detained until a Spanish speaking
officer could arrive. Billings arrived at the scene about ten minutes later at about the
same time as Agent Castilleja; already there were at least two other police vehicles,
including a marked squad car. Evencio and Steven were standing in the road; they
were not in handcuffs and no guns were drawn, but they had not been informed that
they were free to leave. One of the officers handed Steven's wallet to Castilleja;
another had Evencio's wallet, and the trunk of the Honda was open.

       Castilleja spoke with Evencio in Spanish while the other officers were fifteen
to twenty feet away. He gave him a Miranda warning, informed him that cooperation
was voluntary, and asked if he would agree to a search of his apartment at 301 Birch
Street. Evencio said he would but that Steven had the key. Castilleja then gave
Steven a Miranda warning in Spanish, informed him that cooperation was voluntary,
and asked for his permission to search the apartment. Steven agreed, and officers
drove the men back to their apartment and used the key found in Steven's wallet to
go inside.

       After entering the apartment Castilleja read the two men a consent to search
form in Spanish. They signed the form, which authorized a search of the apartment,
a gray Honda, and the red truck. In the bottom of the kitchen garbage can officers
found 36.1 grams of methamphetamine, 10.5 grams of cocaine, and two electronic
scales. Elsewhere they found two bindles – small pieces of plastic knotted around a
white powdery substance. One bindle was found between the cushions of the couch
in the living room, and the other was found in a boot in Steven's room. Both bindles
were placed into the same evidence bag.



                                          -5-
       Before any drugs were found in the apartment, Castilleja had asked Evencio
about the other building he walked to earlier. Evencio said that he had been visiting
his friend Reyna Barbosa and volunteered to take Castilleja to that apartment at 305
Birch Street, number 304. Barbosa agreed to a search of the apartment, and officers
found a .38 caliber handgun wrapped in cloth inside a cardboard box in a bedroom
closet. Officers found .38 ammunition and an identification card with Evencio's
photograph and the name Juan Zabala in the box with the gun. The ammunition was
made by the same manufacturer as that found in Adolfo's home.

       As part of the investigation, officers went to the Gatewood Apartment complex
and asked management if any residents spoke Spanish. The manager directed them
to two different apartments, one of which was located in building 811. The officers
spoke with the resident of that apartment and concluded that he had no connection to
the transaction at the KFC. Pursuant to a separate investigation officers searched the
same apartment in January 2004 and recovered a pound of methamphetamine.

       A grand jury returned an indictment charging Adolfo, Benitez, Evencio, and
Steven. All four were charged in counts 1 and 2: conspiring to distribute 500 grams
or more of a mixture or substance containing a detectable amount of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(a), and 846
(count 1), and aiding and abetting possession with intent to distribute approximately
three and one half pounds of a mixture or substance containing a detectable amount
of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 18
U.S.C. § 2 (count 2). Evencio and Steven were indicted in counts 3-5: aiding and
abetting possession with intent to distribute approximately 28 grams of a mixture or
substance containing a detectable amount of methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2 (count 3); aiding and abetting
possession with intent to distribute an amount of a mixture or substance containing
a detectable amount of cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C), and 18 U.S.C. § 2 (count 4); and knowingly making a residence

                                         -6-
available for the purpose of storing, distributing, and using a controlled substance, in
violation of 21 U.S.C. § 856(a)(2).

       Evencio and Steven moved to suppress the evidence found in their apartment,
arguing that the search was a result of their illegal detention following the stop of the
Honda. A magistrate judge issued a report and recommendation (R & R)
recommending that their motions be denied. The magistrate found that their detention
did not amount to a de facto arrest and that they gave consent to search the apartment.
Steven objected to the R & R, but Evencio did not. The district court adopted the R
& R and denied the motions. Benitez pled guilty, and the other defendants went to
trial.

       As part of its case in chief at trial, the government called a chemist as an expert
witness. Over the defendants' objections, the chemist testified about his examination
of the evidence bag containing the two bindles. He stated that when he received the
evidence bag, both bindles were open and there was powder in the bag. The chemist
tested 0.1 grams of the loose powder from the bag and found that it contained
methamphetamine, dimethyl sulfon, and pseudoephedrine. He testified that he could
not tell whether the sample he tested came from the bindle found in the couch or the
bindle found in Steven's room.

      The chemist also testified about the methamphetamine recovered at the KFC
and found in the garbage can at the apartment. He stated that the methamphetamine
from the KFC was separated into two distinct types of packaging. About half a pound
was in a ziplock bag containing several smaller sandwich bags of methamphetamine
with twelve percent purity, and a duct taped package contained about three pounds
of methamphetamine with ten percent purity. The methamphetamine in both
packages had been cut with dimethyl sulfon and contained pseudoephedrine resulting
from an incomplete manufacturing process. The 36.1 grams of methamphetamine
found in the garbage can at the apartment had ten percent purity, was cut with

                                           -7-
dimethyl sulfon, and contained pseudoephedrine. The chemist testified that
methamphetamine can range in purity from one percent to a hundred percent and that
there were many different cutting agents. Over defense objections, the government
asked the chemist if the cutting agent, the purity, and the presence of
pseudoephedrine in the packets of methamphetamine recovered at the KFC and the
packet found in the garbage at the apartment were consistent. The chemist responded
that it was possible that the three samples all "originated from the same process or
cooking of methamphetamine."

      On cross examination, the chemist admitted that there frequently is some
ephedrine or pseudoephedrine left over at the end of the methamphetamine
manufacturing process. He also said that he did not know what the average purity of
methamphetamine was and agreed that dimethyl sulfon was the most common cutting
agent used in methamphetamine manufacturing.

       BCA Special Agent Boulger also testified as an expert for the prosecution,
based on his thirty four years of experience investigating narcotics. He testified that
1 gram of methamphetamine or cocaine would contain about ten to fifteen individual
doses and that he would not consider 36 grams of methamphetamine to be a personal
use quantity. He stated that the purity of methamphetamine varies widely and that
there is no common purity. He also testified that stash houses are generally obtained
by using a false name and identification or by having someone else actually rent the
property. He stated that cell phones are tools of the drug trade and that conspirators
are likely to maintain communication with each other.

      Agent Castilleja testified about his interview of Adolfo after the arrest at the
KFC. According to Castilleja, Adolfo told him that Benitez had approached him at
work and offered to pay him $500 for a ride to the KFC to deliver methamphetamine.
Adolfo's testimony at trial, however, was that Benitez had asked him for a ride to St.
Cloud the morning of November 14 because he had lent his car to a friend. He said

                                         -8-
that Benitez directed him to the Gatewood Apartments where he was supposed to pick
up his car. Benitez went inside the apartments with the black cooler and was there
for about five minutes. When he came back, he was carrying the cooler and told
Adolfo that his car was not there. He asked Adolfo to drop him off at the KFC and
to wait while he asked Vasquez for a ride. Adolfo denied telling Castilleja that he
knew there was methamphetamine in the cooler or that Benitez offered to pay him
$500 to drive him to the KFC.

       Steven also took the stand. He testified that he had no idea what
methamphetamine was, that he had never used methamphetamine, and that he had
never seen Evencio use methamphetamine. He said that he had never seen the
bindles, the cocaine, the methamphetamine, or the scales found in the search of his
apartment. He also testified that although his real name was Saul Quinonez Perez,
he used the name Steven Martinez in order to obtain work at Gold'n Plump. He said
that he used the name Antonio Orduna to rent the Birch Street apartment because he
had previously tried to rent an apartment under the name Steven Martinez but had
been denied due to bad credit. He also said that he and Evencio were the only two
individuals with keys to the apartment.

       Adolfo, Evencio, and Steven appeal. Adolfo argues that the district court erred
by allowing into evidence the .40 caliber handgun found in his trailer and the .38
caliber handgun found in Barbosa's apartment. Evencio argues that the evidence was
insufficient to support his convictions on counts 1 and 2 and that his detention at the
scene of the stop became an arrest without probable cause and made his subsequent
consent to search his apartment involuntary. Steven argues that the evidence was
insufficient to support his convictions on all five counts, that his consent to search the
apartment was obtained through coercion following an illegal arrest, that the
chemist's testimony regarding the source of the methamphetamine was inadmissible,
that the district court erred by allowing introduction of the bindles and the chemist's



                                           -9-
testimony about their contents, and that counts 1 and 2 were improperly joined with
counts 3, 4, and 5.

                                          II.

       Evencio and Steven argue that their Fourth Amendment rights were violated
by the stop of their Honda and their illegal arrests. They contend that the stop went
beyond the permissible scope and duration of an investigatory stop and they were
arrested without probable cause. After the officers stopped their vehicle, no one
informed them they were free to leave, there were numerous police officers and drug
agents and vehicles at the scene, officers did not return the men's wallets or car keys,
they searched the Honda without first obtaining consent, and then transported the men
back to the apartment. Evencio and Steven argue that their illegal detention and the
coercive circumstances surrounding the stop rendered their consent to search
involuntary.

       The government contends that the scope of the investigatory stop did not
exceed permissible bounds because it was reasonable for officers to detain Evencio
and Steven for a brief time until a Spanish speaking officer arrived at the scene. See
United States v. Sharpe, 470 U.S. 675, 685-86 (1985) (courts should consider the law
enforcement purposes to be served by the stop, as well as the time reasonably needed
to effectuate those purposes). The government contends that there was no undue
delay because Agent Castilleja arrived about ten minutes after the stop, citing United
States v. Bloomfield, 40 F.3d 910, 916-17 (8th Cir. 1994) (en banc) (sixty minute
delay for canine unit was not unreasonable), and that the atmosphere at the scene was
calm and there were no indications that the men were under arrest. It alternatively
argues that even if the detention exceeded the scope of an investigatory stop, Evencio
and Steven consented to the search.




                                         -10-
       We review the district court's factual findings of consent for clear error and
review de novo the denial of the motions to suppress. United States v. Morreno, 373
F.3d 905, 910 (8th Cir. 2004). We review de novo whether a detention amounted to
an arrest. Bloomfield, 40 F.3d at 916. Since Evencio did not object to the magistrate's
recommendation that his motion to suppress the evidence found in his apartment be
denied, we review the factual findings underlying his claim for plain error rather than
clear error. United States v. Lonnie Horse Looking, 156 F.3d 803, 809 (8th Cir.
1998).

       Evencio and Steven concede that the officers had a reasonable suspicion to stop
the Honda, but we are called on to determine whether their continued detention was
reasonable. On this issue we consider the duration of the detention and whether the
officers tried to conduct their investigation quickly and unintrusively, Bloomfield, 40
F.3d at 916, and we keep in mind that an "investigative detention must be temporary
and last no longer than is necessary to effectuate the purpose of the stop." Florida v.
Royer, 460 U.S. 491, 500 (1983). Time is an important factor in distinguishing
between an investigative stop and a de facto arrest, and other significant factors
include whether there were unnecessary delays and whether the suspects were
handcuffed or confined in a police car. Bloomfield, 40 F.3d at 917.

       Since the officers at the scene could not communicate with Evencio and
Steven, Agent Castilleja was called to the scene because he speaks Spanish.
Castilleja arrived within ten minutes of the initial stop, see Sharpe, 470 U.S. at 686-88
(twenty minute detention was reasonable when the police acted diligently and
defendant contributed to the delay). When he arrived, Evencio and Steven were
standing by the side of the road and neither was in handcuffs. Castilleja advised them
of their Miranda rights and informed them that they did not have to speak with him.
We note that Castilleja arrived quickly and that the circumstances of the stop do not
support the conclusion that it turned into a de facto arrest. We conclude that the
investigative stop was reasonable in duration and scope.

                                          -11-
       We examine the totality of the circumstances in determining whether consent
was given voluntarily, including the nature of the encounter and the characteristics
of the consenting party. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973);
United States v. Chaidez, 906 F.2d 377, 380-81 (8th Cir. 1990). After Castilleja
explained that cooperation was voluntary, Evencio and Steven agreed to a search of
the apartment. They were not under arrest, Castilleja read through a Spanish consent
form with them, and they signed the form. Moreover, Evencio cooperated with
officers by leading them to Barbosa's apartment in building 305. See United States
v. Alcantar, 271 F.3d 731, 738 (8th Cir. 2001) (failing to object to the continuation
of a consent search makes the continued search objectively reasonable). We conclude
that Evencio and Steven voluntarily consented to the search of the apartment and that
the district court did not err in denying the motions to suppress.

                                          III.

       Adolfo and Steven raise issues in respect to the evidentiary rulings at trial. We
review the district court's rulings on the admissibility of evidence for abuse of
discretion. United States v. Salcedo, 360 F.3d 807, 809 (8th Cir. 2004).

                                          A.

       Adolfo argues that the court erred in allowing the government to introduce into
evidence the .40 caliber handgun found in a drawer under his bed and the .38 caliber
handgun found in the closet in the apartment in Rockville. He claims that this
evidence was irrelevant under Federal Rule of Evidence 401 because there was no
evidence showing that either gun had a connection to drug activity or that Adolfo was
connected to the gun found in the apartment. He points out that officers found no
drugs in either location where the guns were found, that there was no ammunition for
the .40 caliber gun, that the guns were found many miles from the site of the sale, and
that the guns were stored so that they were not readily usable.

                                         -12-
       Adolfo also contends that the evidence should have been excluded under Rule
403 because its probative value was substantially outweighed by the danger of unfair
prejudice, and that its admission denied him a fair trial and due process of law. In
particular, he argues that the gun evidence was prejudicial to his credibility because
his trial testimony conflicted with Castilleja's testimony. Adolfo contends that
prejudice to a defendant's credibility requires reversal where credibility can be
decisive, citing United States v. Blue Bird, 372 F.3d 989, 994 (8th Cir. 2004). He
also says that the gun could have caused the jury to reach its verdict on an improper
basis because it had no connection to the drug transaction and made Adolfo appear
dangerous. See United States v. Dierling, 131 F.3d 722, 730 (8th Cir. 1997).

       The government argues that the district court did not abuse its discretion by
admitting the evidence. It contends that the evidence was highly relevant because
firearms are known tools of the drug trade, citing United States v. Claxton, 276 F.3d
420, 422-23 (8th Cir. 2002), and United States v. Simon, 767 F.2d 524, 527 (8th Cir.
1985). It points out that the ammunition found in Adolfo's trailer matched the
ammunition and the caliber of the gun found in Barbosa's apartment together with
Evencio's false identification. The evidence thus links both brothers with tools of the
drug trade.

       Evidence is relevant under Rule 401 if it makes "the existence of any fact that
is of consequence to the determination of the action" more or less probable. As the
government points out, there is a close and well known connection between firearms
and drugs. Claxton, 276 F.3d at 423. Firearms are tools of the drug trade due to the
dangers inherent in that line of work. Id.; Simon, 767 F.2d at 527. The ammunition
found in Adolfo's trailer connects him to the .38 caliber gun and the matching
ammunition found in Barbosa's apartment with Evencio's identification. Moreover,
the morning of the drug transaction Evencio made at least two trips to Barbosa's
apartment after Adolfo's cell phone showed a call originating from Evencio's
apartment. The proximity of the .38 caliber gun to the drugs found in Evencio's

                                         -13-
apartment and the matching ammunition found in Adolfo's trailer establishes a link
between Adolfo and Evencio that is related to the drug trade, and the gun evidence
was relevant proof that Adolfo was involved in a conspiracy to distribute
methamphetamine.

        Under Rule 403 relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice. Simply because evidence
is prejudicial does not mean that it must be excluded, United States v. Noland, 960
F.2d 1384, 1387 (8th Cir. 1992), and great deference is given the district court's
balancing of the probative value and prejudicial impact of the evidence. Claxton, 276
F.3d at 422-23. In this case the evidence was relevant to prove Adolfo's involvement
in the conspiracy to distribute methamphetamine. Moreover, the gun evidence did
not unfairly prejudice Adolfo's credibility because it did not directly contradict his
trial testimony in which he said he had not admitted his involvement to Agent
Castilleja. The jury was able to make its own credibility determinations based on the
trial testimony of both Adolfo and Castilleja. We conclude that the district court did
not abuse its discretion in admitting this evidence.

                                           B.

       Steven argues that the district court abused its discretion by allowing the
chemist to testify that the methamphetamine found in the garbage can at the apartment
and the two packets recovered at the KFC could have "originated from the same
process or cooking of methamphetamine" based on a comparison of their purity,
common cutting agent, and the presence of pseudoephedrine. He contends that this
testimony was speculative and rested on unsupported assumptions, citing United
States v. Arenal, 768 F.2d 263, 270 (8th Cir. 1985) (abuse of discretion to allow
police officer to testify that the presence of only one cutting agent in cocaine signified
a common source).



                                          -14-
       The government points out that the testimony in this case came from a chemist
rather than a police officer as in Arenal and that the chemist did not testify that the
methamphetamine came from the same source. Instead, he only stated that the
common chemical composition was consistent with both sets of drugs having come
from the same manufacturing process, a fact not necessarily evident to those without
expertise in chemistry. The government also asserts that this type of testimony has
been found proper by this court, citing United States v. Hughes, 15 F.3d 798, 800-01
(8th Cir. 1994).

       Rule 702 permits a qualified expert to testify in the form of an opinion if his
specialized knowledge would assist the jury in understanding the evidence or in
deciding a fact in issue. The chemist in this case testified that the purity of
methamphetamine can range from one percent to a hundred percent, and this
testimony was corroborated by Agent Boulger's testimony that the purity of
methamphetamine varies quite extensively. The chemist's testimony here was very
different from the officer's testimony in Arenal which was based on the presence of
a sole cutting agent. In this case the chemist testified about the degrees of purity and
the presence of pseudoephedrine, in addition to the cutting agent used, and he did not
conclude that the methamphetamine came from the same source but that it was
possible it originated from the same manufacturing process.

        This case is similar to Hughes, in which a chemist testified that two samples
of crack had the same purity level and that this was a significant factor in determining
whether they came from the same batch. She further stated that in her experience it
was unusual to find two batches of crack with the same purity level. 15 F.3d at 801.
We distinguished her expert testimony from that in Arenal, because she had not
testified that the samples of crack came from the same batch and the jury was allowed
to draw its own conclusions based on the expert testimony. Id. We have the same
contrast in this case. We conclude that the district court did not abuse its discretion
in allowing the chemist's testimony.

                                         -15-
                                           C.

      Steven also argues that the district court erred by admitting into evidence the
exhibit containing the two bindles and by allowing the chemist to testify about their
contents. He claims that this exhibit was other crimes evidence that should have been
subjected to Rule 404(b) scrutiny because the amount of powder in the bindles was
consistent with personal use and no defendant was charged with simple possession
of methamphetamine. He contends that the evidence was irrelevant and prejudicial
because the chemist could not conclusively state that the bindle found in his room
contained methamphetamine. See United States v. Runge, 593 F.2d 66, 70 (8th Cir.
1979) (evidence not linked to defendant "irrelevant, somewhat confusing, and
prejudicial").

       The district court admitted this evidence as res gestae but stated its willingness
to give the jury a Rule 404(b) instruction. Steven's counsel rejected the offer, on the
grounds that the evidence was not being offered under 404(b), and objected to the
exhibit as more prejudicial than probative. Even though the chemist could not state
whether the powder he tested came from the bindle found in Steven's room because
both bindles had been placed in the same evidence bag, the exhibit was relevant
because the sample taken from the bag tested positive for methamphetamine. Both
bindles were found in Steven's apartment, one in his bedroom and one in the living
room couch, and the evidence was properly admitted under the res gestae theory
because it tended to prove that Steven knew about the drugs found in the apartment.
See United States v. Roberts, 253 F.3d 1131, 1133-35 (8th Cir. 2001); United States
v. Riebold, 135 F.3d 1226, 1229 (8th Cir. 1998). Moreover, Steven declined the
court's offer to give a Rule 404(b) instruction to the jury. He has not shown that the
district court erred or abused its discretion in respect to this evidence.




                                          -16-
                                          IV.

        Both Evencio and Steven raise claims of insufficiency of evidence. In
considering the sufficiency of the evidence underlying a jury verdict, the scope of our
review is quite limited. A conviction will be reversed on insufficiency grounds only
if, "after viewing the evidence in the light most favorable to the jury's verdict, giving
the government the benefit of all reasonable inferences that may be drawn from the
evidence, no construction of the evidence will support the jury's verdict." United
States v. Hollingsworth, 257 F.3d 871, 878 (8th Cir. 2001). The verdict will be
upheld if the government produced sufficient evidence for a reasonable jury to find
the elements of the offense beyond a reasonable doubt. United States v. Hamilton,
332 F.3d 1144, 1148-49 (8th Cir. 2003).

                                           A.

       Evencio contends that the evidence was insufficient to support his convictions
on count 1, conspiracy to distribute 500 grams or more of methamphetamine, and
count 2, aiding and abetting possession with the intent to distribute approximately
three and a half pounds of methamphetamine (both relating to the undercover buy at
the KFC). He argues that the government did not show a connection between Steven
and him on the one hand and Adolfo and Benitez on the other. He cites United States
v. Holt, 427 F.2d 1114, 1117 (8th Cir. 1970), for the proposition that merely
associating with others does not prove a conspiratorial agreement. He further points
out that he was not present at the scene of the buy, the evidence did not establish who
called Adolfo's cell phone or the purpose of that call, both Adolfo and Benitez
separately indicated that the drugs were obtained at the Gatewood Apartment
complex, he did not appear nervous or rushed when he made trips between his
building and Barbosa's apartment, and Benitez's comments about the division of
proceeds were consistent with the involvement of only two people.



                                          -17-
      The government responds that the evidence at trial proved beyond a reasonable
doubt that Evencio participated in a drug conspiracy which operated from his
apartment and which delivered three and a half pounds of methamphetamine at the
KFC on November 14. The government contends that Evencio failed to acknowledge
the common sense conclusions that flow from the evidence in the case.

        Officers found distribution quantities of methamphetamine and cocaine and
scales in the garbage in Evencio's apartment. The methamphetamine found in the
garbage had ten percent purity, was cut with dimethyl sulfon, and contained
pseudoephedrine, as did approximately three pounds of the methamphetamine
recovered at the KFC. The chemist testified that these matching characteristics were
consistent with the drugs originating from a common manufacturing process.
Evencio and Steven rented their apartment under false names, and Agent Boulger
testified that stash houses are commonly leased in that way. Agent Vasquez heard
voices speaking Spanish in the background when Benitez called him the morning of
the transaction and tried to change the meeting place to an apartment: When Vasquez
refused, Benitez arrived about ten minutes later, the time it takes to drive from
Evencio's apartment to the KFC according to the testimony of one officer.4

       Shortly after the transaction would have been expected to be finished, there
was a telephone call from Evencio's apartment to the cell phone in Adolfo's truck, and
Agent Boulger testified that conspirators commonly keep in touch as a safety measure
and cell phones are tools of the drug trade. When officers arrived at Evencio's
apartment to conduct surveillance, they saw him going back and forth between
buildings 301 and 305, and they later found a gun and ammunition with Evencio's
false identification in Barbosa's apartment in building 305. The ammunition matched
that found at Adolfo's home. Officers also saw Evencio and Steven leave their

      4
      Investigator Greenwald testified at trial that he had driven from the KFC to the
apartment at 301 Birch Street and that the trip took ten minutes or less. Investigator
Wochnick estimated that the trip would take fifteen to twenty minutes.

                                        -18-
apartment in a Honda with Washington plates that matched the description given by
Benitez of one of the vehicles that might be expected at the KFC. Taking the
evidence in the light most favorable to the government, there was sufficient evidence
for a reasonable jury to find beyond a reasonable doubt that Evencio was guilty of
both conspiring and aiding and abetting.

                                          B.

       Steven argues that the evidence was insufficient to show that he knowingly
participated in any of the five crimes with which he was charged. Regarding count
1, conspiracy to distribute methamphetamine, and count 2, aiding and abetting
possession with intent to distribute approximately three and a half pounds of
methamphetamine, Steven contends that the government failed to produce any
evidence linking him to the deal at the KFC and points out that he was nowhere near
the deal and was not seen associating with anyone who participated in the deal. He
cites United States v. Cruz, 285 F.3d 692, 710 (8th Cir. 2002), for the proposition that
association with a known drug dealer and mere presence at the location of a crime are
not sufficient to establish guilt on a conspiracy charge. He contends that the evidence
of his involvement in the conspiracy is less than found legally insufficient in Cruz.
He also points out that both Benitez and Adolfo told police immediately after their
arrests that the methamphetamine had come from the Gatewood Apartments and that
an independent investigation later uncovered methamphetamine in the building
identified by Benitez.

      Steven argues that there is no evidence that he had knowledge of the drugs
found in his apartment and that the evidence was thus insufficient to support his
convictions on count 3, aiding and abetting possession with intent to distribute
approximately 28 grams of methamphetamine, count 4, aiding and abetting
possession with intent to distribute cocaine, and count 5, knowingly making a
residence available for the purpose of storing, distributing, and using a controlled

                                         -19-
substance. He had been roommates with Evencio for only about a month and a half
at the time of their arrests he argues, and there were no obvious signs of drug dealing
or drug possession in the apartment. Since the drugs found there were well hidden
and not likely to have been seen by him he says, they do not support an inference of
his knowledge, citing United States v. Thorne, 997 F.2d 1504, 1510 (D.C. Cir. 1993)
(drugs hidden in closet of shared bedroom insufficient to prove constructive
possession). Steven contends that this case is similar to United States v. Bonham,
477 F.2d 1137 (3d Cir. 1973), where residence in a shared bedroom in which heroin
was found hidden in a niche above the doorway was insufficient to prove possession.
The only possible link between him and any drugs he says was the plastic bindle
found in his bedroom. Since the chemist could not tell whether the powder he tested
came from that bindle, Steven contends that the jury would have had to make an
impermissible inference to find that it contained methamphetamine.

       The government responds there was overwhelming evidence that Steven's
apartment was being used as a stash house and was the source of the three and a half
pounds of methamphetamine delivered at the KFC. It points out that Steven was
found with the only key to the apartment in which the hidden drugs and scales were
found and that one of the bindles was found in a boot in his room. The government
argues that Steven's knowledge can be inferred from the surrounding circumstances,
citing United States v. Ojeda, 23 F.3d 1473, 1476 (8th Cir. 1994). It also contends
that the jury could properly draw an inference of Steven's guilt from its disbelief of
his trial testimony denying any knowledge of methamphetamine. United States v.
Reed, 297 F.3d 787, 789 (8th Cir. 1995).

       Much of the evidence supporting Evencio's convictions also supports Steven's.
The judge instructed the jury that merely being present at the scene of the crime or
associating with others does not prove that a person has joined a conspiracy or aided
and abetted the commission of a crime. See Cruz, 285 F.3d at 701. Here there was
significantly more evidence to link Steven to the offenses than there was in Cruz, the

                                         -20-
case he cites. The apartment in which distribution amounts of methamphetamine and
cocaine were found was leased by Steven and Evencio under false names, and the
only key found was in Steven's possession. Shortly after the KFC deal was to have
been completed, a telephone call had been placed from the apartment to the cell
phone found in Adolfo's truck. Police saw Steven and Evencio leave the apartment
soon after this call in a vehicle matching a description given ahead of time by
Benitez. A bindle containing white powder was found in a boot in Steven's bedroom,
and a chemist testified that a sample of powder he tested from the evidence bag
holding the two bindles contained methamphetamine. Given all the evidence it would
not have been mere speculation for the jury to make the reasonable inference that the
bindle found in Steven's room contained methamphetamine. Steven denies any
knowledge of the drugs found in his apartment, but the jury could reasonably infer
his knowledge from the circumstances. See Ojeda, 23 F.3d at 1476 (defendant's
knowledge generally established through circumstantial evidence).

       Steven testified at trial that he did not know what methamphetamine was, that
he had never used methamphetamine, and that he had never seen Evencio use
methamphetamine. He also said that he had never seen the bindles, the cocaine, the
methamphetamine, or the scales found in the apartment. The jury had the opportunity
to weigh the credibility of Steven's testimony at trial, and its verdict suggests it must
have found him not credible. When there is other corroborative evidence, "the jury
can properly draw an inference of guilt from its disbelief of the defendant's denials."
United States v. Reed, 297 F.3d 787, 789 (8th Cir. 2002); see also United States v.
Vazquez, 53 F.3d 1216, 1225 (11th Cir. 1995) (jury may view defendant's false
explanatory statement as substantive evidence of guilt, particularly if the government
must prove highly subjective elements such as intent or knowledge). We conclude
that a reasonable jury could have found beyond a reasonable doubt that Steven had
knowledge of and involvement in the KFC transaction and that he knew about the
drugs in his apartment.



                                          -21-
                                           V.

       Steven argues that the joinder of counts 1 and 2 relating to the transaction at
the KFC with counts 3, 4, and 5 was improper because the indictment did not
sufficiently allege that the counts were factually interrelated. See United States v.
Darden, 70 F.3d 1507, 1526-27 (8th Cir. 1995). He also claims that joinder was
prejudicial because the evidence from counts 1 and 2 would not have come in with
respect to counts 3, 4, and 5, and vice versa. The district court erred in denying his
motion for severance he argues.

       When a defendant moves for severance, a district court must first determine
whether joinder is proper under Federal Rule of Criminal Procedure 8. Even if
joinder is proper under that rule, the court still has discretion to sever under Rule 14.
We review whether joinder was proper de novo, United States v. Moyer, 313 F.3d
1082, 1085 (8th Cir. 2002), and will reverse only upon a showing of an abuse of
discretion which resulted in "severe or compelling prejudice." United States v.
McGuire, 45 F.3d 1177, 1187 (8th Cir. 1995). The rules are to be liberally construed
in favor of joinder. Darden, 70 F.3d at 1526.

       Rule 8(a) allows joinder of counts if they "are of the same or similar character,
or are based on the same act or transaction, or are connected with or constitute parts
of a common scheme or plan." Steven was charged in count 3 with aiding and
abetting possession with intent to distribute approximately 28 grams of
methamphetamine, and Agent Boulger's testimony indicated that 28 grams is a
distribution amount of methamphetamine. Count 1 charged conspiracy to distribute
500 grams or more of methamphetamine, and possession of a distribution amount of
the drug during the time of the charged conspiracy is evidence of conspiracy to
distribute methamphetamine. See United States v. Escobar, 50 F.3d 1414, 1420 (8th
Cir. 1995). Significantly, the methamphetamine recovered in the garbage can at
Steven's apartment matched approximately three pounds of the methamphetamine

                                          -22-
involved in the transaction at the KFC in terms of purity, cutting agent, and the
presence of pseudoephedrine. This match showed a connection between count 3 and
counts 1 and 2. Steven was charged with possession with intent to distribute cocaine
in count 4 and making a residence available for the purpose of storing, distributing,
and using a controlled substance in count 5, and the facts underlying these counts are
related to those in counts 1 and 2. All the crimes charged are offenses of the same or
similar character. See United States v. Boyd, 180 F.3d 967, 981 (8th Cir. 1999)
(offenses are of the same or similar character if they refer to the same type of offenses
occurring over a relatively short period of time and have overlapping evidence).
Joinder of the offenses was thus proper under Rule 8(a). The indictment sufficiently
alleged that the joined counts were factually interrelated, and joinder was proper
under Rule 8 in this case.

       The presumption against severing properly joined cases is strong, United States
v. Delpit, 94 F.3d 1134, 1143 (8th Cir. 1996), and the district court did not abuse its
discretion by denying Steven's motion. The district court instructed the jury that
"each alleged offense and any evidence pertaining to it should be considered
separately" and that it "must give separate and individual consideration to each charge
against each defendant."           Moreover, there was evidence such as the
methamphetamine found in the garbage can at the apartment that was relevant on both
sets of charges, and the possibility that a defendant's chances for acquittal may be
better in separate trials is an insufficient justification for severance. Delpit, 94 F.3d
at 1040.

                                          VI.

      After studying the record, we find no reversible error. Neither the stop of the
Honda nor the search of the apartment violated Evencio's and Steven's Fourth
Amendment rights. The district court did not abuse its discretion by admitting
evidence of the guns, by allowing the chemist to testify that the methamphetamine

                                          -23-
could have originated from the same manufacturing process, or by admitting the
exhibit containing the two bindles and allowing the chemist to testify about its
contents. The evidence was sufficient to support Evencio's and Steven's convictions,
and joinder of the counts was proper and the district court did not abuse its discretion
in denying the motion to sever. We accordingly affirm the judgments of the district
court.
                       ______________________________




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