                                   No. 96-1720


United States of America,    *
                                       *
                     Appellee,         *
                                       *   Appeal from the United States
         v.                            *   District Court for the
                                       *   District of Minnesota.
Stephen Edwards,                       *
                                       *
                    Appellant.         *


                          Submitted:    June 11, 1996

                          Filed:    August 2, 1996


Before BEAM and HEANEY, Circuit Judges, and BOGUE*, District Judge.



HEANEY, Circuit Judge.


     Stephen Edwards appeals his convictions for aiding and abetting
possession with intent to distribute cocaine and for conspiracy to possess
with intent to distribute cocaine.     Edwards argues that the district court
erred in admitting evidence that police had seized from his residence prior
to his arrest.   Edwards also challenges his 96-month sentence.    He argues
that the district court erred in applying a two-level adjustment for his
role in the offense.     We find no merit to either argument and affirm his
conviction and sentence.




     *
      The Honorable Andrew W. Bogue, United States District Judge
for the District of South Dakota, sitting by designation.
                                      I.


        On May 17, 1994, police officers executed a search warrant at
Edwards' residence.    Police found a list of codes for delivering messages
via pagers in a notebook which also contained airline tickets in Edwards'
name.    The coded messages included the phrases, "I have a sale," "need some
more," "almost done," and "police."        The notebook also contained papers
with lists of names and dollar figures consistent with prices for cocaine.
Additionally, police found $6,808 in cash, a pager, and a loaded handgun
in a bag in a laundry chute.    There is no evidence in the record that any
charges resulted from this search.


        On May 4, 1995, Edwards again drew police attention.      He was the
driver of one of two cars that police suspected were involved in drug
trafficking.     Police observed Edwards and two other men, Hamilton and
Bolden, getting out of the two cars in front of a hotel parking ramp and
entering the ramp on foot.     Hamilton exited the ramp shortly thereafter.
Edwards and Bolden remained in the garage for fifteen minutes.      When they
left the garage, Bolden was visibly carrying something under his shirt.


        Bolden returned to one of the cars where Welch, a fourth man, was
waiting.     Bolden and Welch drove off at a high speed.      After a chase,
police arrested Bolden and Welch; Bolden was carrying 908 grams of cocaine.
Both Bolden and Welch made post-arrest statements implicating Edwards as
the person for whom they were working.


        Police arrested Edwards near the parking ramp.   Edwards was carrying
two pagers, and a third pager was found in his briefcase.       The briefcase
also contained papers with names and large dollar amounts which, as an
investigator later testified, were consistent with prices for cocaine.
Police did not find any drugs either on Edwards' person or in his car.




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      Edwards was charged in a two-count indictment along with Bolden and
Welch.     Count I charged the three defendants with aiding and abetting the
possession with intent to distribute approximately 908 grams of cocaine in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.             Count II charged
each defendant with conspiracy to possess with intent to distribute and to
distribute cocaine in violation of 21 U.S.C. § 846.


      At trial the government introduced evidence of the May 17, 1994
search of Edwards' apartment under Rule 404(b) of the Federal Rules of
Evidence.     A jury found Edwards guilty on both counts.


      On    March   7,   1996,   the   court   sentenced   Edwards   to   96   months
imprisonment to be followed by a four-year term of supervised release.
Edwards' base offense level was 26.       In accordance with the recommendation
of the probation office, the court added two levels for his supervisory
role in the offense pursuant to section 3B1.1(c) of the United States
Sentencing Guidelines.


                                         II.


A.   Rule 404(b) Evidence


      Edwards contends that the district court committed reversible error
by admitting evidence seized by police during the May 17, 1994 search of
his residence.      Under Rule 404(b), evidence of prior bad acts may be
admitted to demonstrate motive, opportunity, intent, preparation, common
plan, knowledge, identity, or absence of mistake or accident.                  To be
admissible, evidence must also meet the following conditions:             It must be
sufficient to support a jury finding that the defendant committed the prior
act; the probative value of the evidence must outweigh its prejudicial
effect; and the bad act must be reasonably similar in kind and close in
time to the crime charged.        United States v. Jones, 990 F.2d 1047, 1050
(8th Cir.), cert denied, 114 S. Ct. 699 (1994).            We review the district




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court's decision to admit rule 404(b) evidence for an abuse of discretion.
United States v. Huff, 959 F.2d 731, 736 (8th Cir.), cert. denied, 113 S.
Ct. 162 (1992).


        The district court did not abuse its discretion in admitting the
evidence from the prior search.            The evidence was relevant to the material
issue of Edwards' knowledge and intent.                    Edwards' defense--that he was
merely present and had no knowledge that a crime was being committed--made
Edwards' intent and knowledge material issues at trial.                      See United States
v. Thomas, 58 F.3d 1318, 1322 (8th Cir. 1995) (holding any defense that
challenges    the     mental    element      of     the    government's       case    makes     the
defendant's intent a material issue).


        The evidence seized at Edwards' apartment was also similar in kind
and close in time to the crime charged.                 During the search, police seized
a pager and drug-related notes similar to those Edwards possessed at the
time of his arrest.           The loaded firearm and the large quantity of cash
found    during    the   search      provided     further     evidence       of    similar    drug-
trafficking       activity.       Moreover,       the     execution     of   the    warrant     was
reasonably    close      in   time    to   Edwards'       arrest   on   the       possession    and
conspiracy charges.       See United States v. Burk, 912 F.2d 225, 228 (8th Cir.
1990) (reasonableness standard used to determine the number of years that
can separate the prior bad act from the crime charged).


        There was sufficient evidence to support a jury finding that Edwards
committed the prior acts.             Similar-act evidence is only relevant if it
permits a jury to conclude that the act occurred and that the defendant was
the actor.    Huddleston v. United States, 485 U.S. 681, 689 (1988).                         All of
the items were seized from an apartment where Edwards lived and kept the
utilities in his name.            Edwards was at the residence at the time the
officers conducted the search.             Significant pieces of evidence were found
in a notebook




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with other documents bearing Edwards' name.      Thus, Edwards was clearly
linked to the evidence seized.


     Finally, the evidence seized under the prior search warrant was not
unfairly prejudicial.   The district court made an explicit finding that the
evidence was more probative than prejudicial, a balancing that is uniquely
within the discretion of the district court.     United States v. Adediran,
26 F.3d 61, 64 (8th Cir. 1994).     The evidence had no undue tendency to
suggest decision on an improper basis.    It suggests activity very similar
to the acts charged, and thus was not so inflammatory as to unduly divert
attention from the case.     U.S. v. Yellow, 18 F.3d 1438, 1442 (8th Cir.
1994).   Moreover, the district court gave a limiting instruction concerning
the use of the evidence that minimized the likelihood that prejudice could
occur.   See United States v. Sykes, 977 F.2d 1242, 1246 (8th Cir. 1992).



     For the above reasons, we hold that the district court did not abuse
its discretion in admitting the evidence seized in the prior search.


B. Sentencing Adjustment for Supervisory Role


     Edwards also contends that the district court erred by applying a
two-level upward adjustment for his role as a manager or a supervisor
pursuant to guideline section 3B1.1(c).    The government has the burden of
proving by a preponderance of the evidence that the facts supported the
increase.   United States v. Greene, 41 F.3d 383, 386 (8th Cir. 1994).   We
review a district court's finding that a defendant played a supervisory
role as a factual determination and will not overturn such a finding unless
it is clearly erroneous.   United States v. Hazelett, 80 F.3d 280, 284 (8th
Cir. 1996).




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     There was sufficient evidence for the district court to conclude that
Edwards' co-defendants were working under his direction and control.       The
presentence report included post-arrest statements by both Welch and Bolden
indicating that they were working under Edwards' direction.       Welch stated
that he was on a "dope run" for Edwards and Hamilton.       Bolden told police
that he was transporting drugs for two men.      Although he said he could not
name the men because they would kill him, the identities of the men were
clearly implied by the totality of Bolden's statements.


     The court could consider the post-arrest statements of Welch and
Bolden for sentencing purposes.   The sentencing court may consider hearsay
evidence contained in the presentence report if the individual being
sentenced is given an opportunity to explain or rebut the evidence and if
the court makes an explicit factual finding on any disputed issue.     United
States v. Hammer, 3 F.3d 266 (8th Cir.), cert denied 114 S. Ct. 1121
(1994).   Edwards was given a full opportunity to rebut Welch's and Bolden's
post-arrest statements at the sentencing proceeding.       He did not request
an evidentiary hearing and stated that he would not submit any affidavits
to rebut the post-arrest statements.       The court found that the government
had sustained its burden with respect to his supervisory role.


                                    III.


     The evidence seized from Edwards' apartment prior to his arrest was
material and relevant, did not cause undue prejudice, and was reasonably
related in kind and time to the crime charged.       Also, sufficient evidence
existed to support the two-level sentencing adjustment for Edwards'
supervisory role in the offenses of conviction.     Accordingly, we affirm his
conviction and sentence.




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A true copy.


   Attest:


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




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