In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3941

United States of America,

Plaintiff-Appellee,

v.

Twaine Jones,

Defendant-Appellant.



Appeal from the United States District Court
for the Southern District of Illinois.
No. 99-CR-30249-WDS--William D. Stiehl, Judge.


Argued April 6, 2001--Decided April 24, 2001




  Before Flaum, Chief Judge, and Posner and
Williams, Circuit Judges.

  Flaum, Chief Judge. Twaine Jones
appeals his convictions for possession
with intent to distribute various
controlled substances as well as his
sentence. He contends that impermissible
character evidence was introduced at his
trial and that the judge increased his
sentence based on quantities of drugs
that were not presented to the jury nor
proven beyond a reasonable doubt. For the
reasons stated herein, we affirm.

I.   Background

  On August 10, 1998, police executed a
search warrant at 1120 North 45th Street
in Washington Park, Illinois. They
discovered and seized crack cocaine,
cocaine hydrochloride, marijuana, and
guns. The police also recovered
photographs of Twaine Jones and his
family along with bills, letters, and
other items addressed to the defendant at
the house, indicating that Jones lived
there. The government indicted Jones for
possessing the narcotics found in the
North 45th Street home. The counts of the
indictment relevant on appeal are all
violations of 21 U.S.C. sec. 841(a)(1):
possession with intent to distribute
135.8 grams of cocaine base; possession
with intent to distribute 75.9 grams of
cocaine hydrochloride; and possession
with intent to distribute 2,658.29 grams
of marijuana.

  Prior to trial, the government filed a
notice of intent to present testimony
concerning prior drug dealing by the
defendant and evidence that was recovered
from the same home through a previous
search warrant. The defendant filed a
motion in limine seeking to exclude any
testimony regarding his prior acts, which
was opposed by the government. Applying
the four-pronged test for admission of
prior acts evidence under Federal Rule of
Evidence 404(b), see, e.g., United States
v. Williams, 238 F.3d 871, 874 (7th Cir.
2001), the district court decided that
the evidence proffered by the government
could be introduced.

  Jones’s trial began on July 18, 2000.
The government’s evidence included the
testimony of three individuals who had
purchased drugs from Jones in the past.
Pervis Harris, Rodney Weatherby, and
Cortez Wooten all testified that they
repeatedly purchased drugs from Jones at
the North 45th Street house during the
late nineteen-nineties. Harris and
Weatherby also testified that Jones told
them about the 1998 search warrant and
what the police recovered from the
residence. The government also presented
Terrence Delaney, who testified that he
had been the captain of a drug and gang
tactical unit that executed a search
warrant at 1120 North 45th Street in
1993. His group seized crack cocaine,
marijuana, and various personal papers
belonging to Jones from that home. The
defendant did not object to any of this
evidence when it was introduced at trial.
Jones’s primary defense was that he did
not reside at the North 45th Street house
during the time the 1998 search warrant
was executed and thus any drugs found
there did not belong to him. At the close
of evidence, the court instructed the
jury that they could consider the above
described prosecution evidence "only on
the question of identity, knowledge, and
intent. You should consider this evidence
only for this limited purpose."
  On July 20, 2000, the jury returned a
guilty verdict on the three counts of
possession with intent to distribute. The
court held a sentencing hearing on
November 6, 2000. The government argued
that the drugs sold by Jones to Harris,
Weatherby, Wooten, and other witnesses
should be considered relevant conduct and
added to the amounts seized from 1120
North 45th Street for sentencing
purposes. The defendant objected on the
basis of Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348 (2000), claiming
that quantities of narcotics not proven
to the jury could not be used to increase
his sentence. The court agreed with the
government and found Jones responsible
for 1.2 kilograms of cocaine base, more
than 14 kilograms of cocaine
hydrochloride, and the amount of
marijuana alleged in the indictment.
These extra amounts of drugs translated
into a two-point increase in Jones’s
offense level. Jones received concurrent
sentences on each of the three counts,
with the longest being thirty years for
possession with intent to distribute
cocaine base.

II. Discussion
A. Rule 404(b) Evidence

  Under Rule 404(b), evidence of a
defendant’s other acts may be introduced
if a four-part test is satisfied. See
Williams, 238 F.3d at 874; United States
v. Wash, 231 F.3d 366, 370 (7th Cir.
2000). Jones claims that the 404(b)
testimony admitted at his trial fails the
first and fourth prongs of this test: the
evidence did not establish any matter in
issue besides propensity, and the danger
of unfair prejudice substantially
outweighed the probative value. This
argument is apparently premised on the
fact that Jones’s defense at trial was
that he did not live at the North 45th
Street residence during the time the 1998
search warrant was executed and so any
narcotics found in the house were not
his. Jones contends that the statements
of Harris, Weatherby, and Wooten do not
counter his defense and are thus
irrelevant because none of the three drug
purchasers could directly testify that
Jones stored any controlled substances in
the house. Similarly, Jones argues that
Delaney’s testimony also does not cast
doubt on his defense because Delaney’s
evidence shows only that drugs were
stored in the house five years earlier,
rather than that Jones lived in the house
and knew of the narcotics in 1998.
According to Jones, because the Rule
404(b) evidence was not relevant to
whether he lived in the house and thus
possessed the drugs, its only effect was
to unfairly prejudice him by showing his
propensity to traffic in controlled
substances. The government contends that
the evidence was admissible to show
Jones’s intent and knowledge and did not
unduly prejudice him. The parties also
dispute whether we should review for
abuse of discretion or plain error,/1
but we need not address this question
because under either standard Jones’s
challenge fails.


  1.   Matter other than propensity.

  The elements of possession with intent
to distribute under 21 U.S.C. sec.
841(a)(1) are: (1) possession of a
controlled substance; (2) knowledge that
the material is a controlled substance;
and (3) intent to distribute it. Lanier
v. United States, 220 F.3d 833, 840 (7th
Cir. 2000). Jones argues that because he
was only disputing the first element,
possession, the government should not
have been permitted to present evidence
on the second and third elements.
However, this contention misapprehends
the government’s burden in a criminal
trial. In all criminal cases, the
government must prove each element, even
those that the defendant does not
specifically contest, beyond a reasonable
doubt to convict a defendant. Estelle v.
McGuire, 502 U.S. 62, 69 (1991) ("[T]he
prosecution’s burden to prove every
element of the crime is not relieved by a
defendant’s tactical decision not to
contest an essential element of the
offense."); see also Mathews v. United
States, 485 U.S. 58, 64-65 (1988) ("A
simple plea of not guilty puts the
prosecution to its proof as to all
elements of the crime charged.")
(citation omitted). Even though Jones
focused only on the first element of the
alleged crime, denying that he possessed
the drugs contained in the house on North
45th Street, the government was still
required to prove both his knowledge that
the substances were narcotics and his
intent to distribute by submitting
evidence on those issues. United States
v. Kellum, 42 F.3d 1087, 1093 (7th Cir.
1994).

  The Rule 404(b) evidence submitted in
this case aided the prosecution in
carrying its burden of proving intent and
knowledge, and so satisfies the first
prong of the Rule 404(b) test. Jones’s
transactions with Harris, Weatherby, and
Wooten showed that Jones in the past had
sold drugs that he had possessed.
Evidence that he previously distributed
narcotics supports a finding that he
intended to distribute the drugs found
when the 1998 search warrant was executed
and that he knew these substances were
drugs. Indeed, intent to distribute drugs
and knowledge that a particular substance
is a narcotic often are proven through
testimony about prior sales of controlled
substances. See, e.g., United States v.
Denberg, 212 F.3d 987, 993-94 (7th Cir.
2000); United States v. Tringali, 71 F.3d
1375, 1379 (7th Cir. 1995). Jones’s
discussions with Harris and Weatherby
concerning the search warrant and
confiscation of Jones’s drugs aided the
prosecution in establishing that Jones
knew he was selling a controlled
substance. Delaney’s testimony furthered
the government’s case by demonstrating
that Jones had repeatedly possessed large
amounts of narcotics, which supports a
finding that the possessor intended to
distribute the drugs to others since such
quantities are unlikely to be consumed by
a single person. Also, Delaney’s
testimony supported the proposition that
Jones had previously been present in the
house when substantial amounts of drugs
were present, increasing the probability
that he knew that the substances in the
house in 1998 were narcotics.


  2.   Unfair prejudice.

  Evidence is unfairly prejudicial only to
the extent that it will cause the jury to
decide the case on improper grounds. See
Denberg, 212 F.3d at 994; United States
v. Long, 86 F.3d 81, 86 (7th Cir. 1996).
As discussed above, the Rule 404(b)
testimony presented in this case was
primarily directed toward elements of the
crime that the prosecution was required
to establish, namely, Jones’s intent to
distribute and his knowledge that he
possessed narcotics. The jury’s use of
the Rule 404(b) evidence on these legally
relevant issues of intent and knowledge
does not constitute unfair prejudice.

  The jury might also have been tempted to
use the Rule 404(b) evidence to infer a
propensity of Jones to engage in drug
trafficking activities, which would have
been unfairly prejudicial. However, any
such potential prejudice was ameliorated
by the limiting instruction given by the
trial court. Williams, 238 F.3d at 876;
Denberg, 212 F.3d at 994. We assume that
juries follow a court’s instructions,
United States v. Wilson, 237 F.3d 827,
835 (7th Cir. 2001), which means in this
instance that we assume the jury used the
evidence only for intent and knowledge
and not to infer a propensity for
committing illegal acts. Therefore, Jones
was not unfairly prejudiced by the Rule
404(b) evidence.

B.   Apprendi

  Jones argues that the trial court
improperly increased his sentence on the
basis of drug quantities that were
notalleged in the indictment or proven to
the jury. The court did this by
attributing the drugs Jones sold to
Harris, Weatherby, Wooten, and others as
relevant conduct under the Sentencing
Guidelines, increasing Jones’s offense
level under the Guidelines by two and
thus lengthening his sentence. In
support, Jones relies on a number of
cases holding that drug quantities must
be proven to increase a defendant’s
sentence under sec. 841(b).

  Apprendi holds that "[o]ther than the
fact of a prior conviction, any fact that
increases the penalty for a crime beyond
the prescribed statutory maximum must be
submitted to a jury, and proved beyond a
reasonable doubt." 120 S. Ct. at 2362-63.
The jury found that the government had
proven the charges listed in the
indictment, one of which was that Jones
possessed with the intent to distribute
135.8 grams of cocaine base, beyond a
reasonable doubt. The statutory maximum
for possession with intent to distribute
50 or more grams of cocaine base is life
imprisonment. 21 U.S.C. sec.
841(b)(1)(A)(iii). Since the thirty-year
sentence that Jones received is less than
the statutory maximum of life
imprisonment, Apprendi is not implicated.
  The principal thrust of Jones’s argument
is that relevant conduct under the
Sentencing Guidelines must be proven to
the jury beyond a reasonable doubt before
it can be used to increase a defendant’s
sentence. We have squarely rejected this
argument. "[P]ursuant to the sentencing
guidelines, district courts may still
determine a drug offender’s base level
offense by calculating quantities of
drugs that were not specified in the
count of conviction but that the court
concludes, by a preponderance of the
evidence, were a part of the defendant’s
relevant conduct, as long as that
determination does not result in the
imposition of a sentence that exceeds the
statutory maximum penalty for that
crime." United States v. Jones, No. 00-
2531, 2001 WL 294306, at *5 (7th Cir.
Mar. 28, 2001); see also Talbott v.
Indiana, 226 F.3d 866, 869 (7th Cir.
2000) ("Apprendi does not affect
application of the relevant-conduct rules
under the Sentencing Guidelines to
sentences that fall within a statutory
cap."). Because the district court’s
reliance on Jones’s relevant conduct in
applying the Guidelines did not result in
a sentence exceeding the statutory
maximum of life imprisonment, the court
did not violate the rule of Apprendi.

III.   Conclusion

  The evidence regarding Jones’s prior
drug sales and having a large quantity of
drugs in his alleged residence was
probative of his intent to distribute
narcotics and knowledge that the
substances he possessed were controlled.
The evidence was not unfairly prejudicial
given its probative value and the trial
court’s limiting instruction. Because the
jury found beyond a reasonable doubt
facts that made Jones eligible for a
statutory maximum sentence of life
imprisonment, the district court did not
violate Apprendi in enhancing Jones’s
offense level under the Sentencing
Guidelines by including uncharged drug
sales as relevant conduct. Therefore,
Jones’s convictions and sentence are

Affirmed.



1/ The standard of review issue centers around
whether the district court’s denial of Jones’s
pre-trial motion to exclude the Rule 404(b)
evidence was conditional or definitive. If the
pre-trial denial was definitive, then Jones did
not need to object during the trial to preserve
the issue and so we would review for abuse
ofdiscretion; if the pre-trial denial was condi-
tional, objections during the trial would be
necessary and Jones’s failure to make those would
cause us to review only for plain error. See
Wilson v. Williams, 182 F.3d 562, 567 (7th Cir.
1999) (en banc). Because the standard of review
does not affect the outcome, we need not decide
whether the trial court’s denial of the motion in
limine was definitive or conditional.
