Gеrard Kills Enemy appeals his conviction for possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1) (1988). While Kills Enemy was subject to a pre-sentence release order relating to another conviction, FBI agents and tribal police on the Oglala Sioux Reservation searched his home, relying on a provision of the presentence order granting unrestricted authority to conduct warrantless searches. During the search they found the cocaine in issue here. Kills Enemy claims the warrantless seаrch provision of the presentence release is invalid. He also complains of Fed.R.Evid. 404(b) evidence admitted at trial, and of the government’s use of a venireman as a witness at trial. We affirm the judgment of the district court. 1
Kills Enemy pleaded guilty to possession of marijuana with intent to distribute on January 31,1992. At the time of his arraignment on the marijuana charge, he was released under an order which included a condition permitting unrestricted warrantless search of his person or place of residence. Between the time of the plea and sentencing, Kills Enemy’s bond was continued under the same conditions as those of the pretrial release order.
On March 4, аfter receiving information that Kills Enemy was dealing drugs, FBI agents and tribal police officers searched the house where Kills Enemy was living. While agents were searching Kills Enemy’s toоlbox, Kills Enemy put his hand in the box and “palmed” a package, which turned out to contain eight bindles of cocaine. Police also found other items in the house that аppeared to be paraphernalia associated with cocaine and marijuana, and a letter to Kills Enemy proposing a trade of marijuanа cigarettes for marijuana seeds.
Kills Enemy moved to suppress the evidence seized, but the magistrate judge
2
recommended that the court deny his motion, likening Kills Enemy’s situatiоn to that of a convict on probation or supervised release, and therefore relying on
Griffin v. Wisconsin,
Kills Enеmy argues that the search conditions were not necessary to assure public safety as required under 18 U.S.C. § 3142(c)(l)(B)(xiv) (1988), because the release order already included a condition explicitly prohibiting Kills Enemy from using alcohol or drugs or violating any laws. This is a disingenuous argument; the prohibitions on drug use and violations of the law are not self-exеcuting, and the search condition has an obvious relation to public safety in making it easier for police to enforce the prohibitions on drug use and other violations of law. This enhanced enforcement power gives society the extra measure of protection necessary when releasing a convictеd drug merchant pending sentencing. See 18 U.S.C. §§ 8143 and 3142(c)(1)(B)(xiv) (1988 and Supp. III 1990).
Kills Enemy also objects to the search term as overbroad. The search condition as drafted was quite unrestricted. It might well have been narrowed to permit a search only for drugs. But even if the condition is overbroad, we may still uphold the search if the search authority was narrowly and properly exercised.
Schoenrock,
Kills Enemy also contends that the condition of a convicted person on presentence release is analogous to that of a pretrial releasee, not to a probationer or convict on supervised release, and consequently there is not the same justification for abridgemеnt of his fourth amendment rights as existed in
Griffin, Schoenrock,
and
Sharp.
We reject this argument. A convicted person awaiting sentence is no longer entitled to a presumption of innocence or presumptively entitled to his freedom.
Compare
18 U.S.C. §§ 3142(b) (presumption in favor of pretrial release) and 3143(a) (presumption of detention pending sentence). As with the parole and probation cases, there is a heightened need for close supervision of the convicted person’s activities to protect society and thе releasee himself, and the releasee is entitled only to a conditional liberty.
See Griffin,
Kills Enemy complains about admission under Fed.R.Evid. 404(b) of various items of “other crimes” evidence pertaining to Kills Enemy’s distribution of marijuana. He complains first аbout testimony of John High Hawk, who had lived in the same house with Kills Enemy. Before High Hawk testified, the government stated that he would testify that he knew Kills Enemy was selling cocaine. In fact, High Hawk only testified that he had seen Kills Enemy selling marijuana. Next Kills Enemy complains about the Rule 404(b) testimony of Amos American Horse, that he had bought marijuana from Kills Enemy up to the night before Kills Enemy was arrested on the cocaine charge, and that Kills Enemy had supplied him with cocaine gratuitously. Finally, he complains about admission of the letter offering a trade of marijuana for seeds.
In all three cases the government contends that the evidence of other bad acts is relevant to show intent to distributе the cocaine. The government contends that the other crimes evidence simply shows Kills Enemy had the cocaine because he was in the drug supply business and intended to distribute the drugs. Kills Enemy contends that evidence regarding marijuana distribution is not relevant to intent to distribute cocaine.
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Under Rule 404(b) evidence of other crimes committed by the defendant may be admitted if: (1) it is relevant to a material issue (in this case, intent to distribute); (2) it is similar in kind and reasonably close in time to the crime charged; (3) the other сrimes are proved by a preponderance of the evidence; and (4) the probative value outweighs the prejudicial effect of the evidencе.
United States v. Longbehn,
Though we may perhaps have resolved the evidentiary questions differently were they before us in the first instance, we cannot say as a matter of law that evidence of contemporaneous marijuana dealing has “no bearing” on whether the defendant intended to distribute other drugs in his possession.
See United States v. Haynes,
Finally, Kills Enemy complains that the district court erred in permitting Amos American Horse to testify. Ameriсan Horse had been a venireman, but was excused for cause when he stated that Kills Enemy was his friend and former neighbor. The government then contacted American Hоrse and called him as a witness.
Kills Enemy contends that it was error to permit American Horse to testify because he had served on the venire with persons who became the jurors in this case, and he may have become acquainted with them or otherwise made an impression, either favorable or unfavorable, on the jurors. Kills Enemy cites Fed.R.Evid. 606, which bars jurors from testifying.
Rule 606 is not applicable to veniremen, as opposed to jurors, and does not require us to reverse. Nevertheless, we must express our concern about the government’s actions in calling American Horse to the stand. Though we have nothing but speculation in this case about the possible effect on jurors in calling a former venireman to testify, we consider this a close case. In a case with a developed record with evidence of real harm, the result might well be different.
In this case, however, we affirm the judgment of the district court.