                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                    File Name: 09a0006p.06

                UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


                                                 X
                           Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                  -
                                                  -
                                                  -
                                                      No. 07-5277
          v.
                                                  ,
                                                   >
                                                  -
                        Defendant-Appellant. -
 MICHAEL CHARLES GUNTER,
                                                  -
                                                 N
                   Appeal from the United States District Court
               for the Eastern District of Tennessee at Greeneville.
                 No. 06-00005—J. Ronnie Greer, District Judge.
                                 Argued: October 29, 2008
                            Decided and Filed: January 8, 2009
             Before: BATCHELDER, CLAY, and SUTTON, Circuit Judges.

                                    _________________

                                         COUNSEL
ARGUED: Stephen Ross Johnson, RITCHIE, DILLARD & DAVIES, Knoxville,
Tennessee, for Appellant. Nancy Stallard Harr, ASSISTANT UNITED STATES
ATTORNEY, Greeneville, Tennessee, for Appellee. ON BRIEF: Stephen Ross Johnson,
RITCHIE, DILLARD & DAVIES, Knoxville, Tennessee, for Appellant. Nancy Stallard
Harr, ASSISTANT UNITED STATES ATTORNEY, Greeneville, Tennessee, for Appellee.
                                    _________________

                                          OPINION
                                    _________________

        CLAY, Circuit Judge. Michael Charles Gunter appeals his conviction of conspiracy
to distribute and possession with intent to distribute cocaine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B), and 846, of attempt to possess with intent to distribute cocaine
in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2. On direct appeal,
Gunter challenges: (1) whether there was probable cause to search his residence; (2) the
sufficiency of the evidence supporting his conviction; (3) the admissibility of his prior felony


                                               1
No. 07-5277             United States v. Gunter                                        Page 2


convictions; and (4) the propriety of jury instructions regarding the conspiracy charges. For
the reasons that follow, we AFFIRM the judgment of the district court.

                                     BACKGROUND

        On February 14, 2006, a federal grand jury indicted Michael Charles Gunter and co-
defendants Bill Banks, Kenny Holt, and John Banks on charges of conspiracy to distribute
and possession with intent to distribute five kilograms or more of cocaine in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A), 843(b), and 846 (Count One), and of attempt to possess
with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C.
§§ 841(b)(1)(A) and 846, and 18 U.S.C. § 2 (Count Two).

        On August 10, 2006, the district court denied Gunter’s motion to suppress evidence
seized from his residence. Gunter’s co-defendants each pleaded guilty pursuant to plea
agreements with the government, but Gunter proceeded to trial. On September 19, 2006, the
jury convicted Gunter of conspiracy to distribute and possession with intent to distribute
more than 500 grams but less than five kilograms or more of cocaine (the lesser-included
offense of Count One), and of the substantive drug offense in Count Two.

        On September 28, 2006, Gunter filed a motion for a new trial, which the district
court denied. On February 27, 2007, Gunter was sentenced to 120 months imprisonment,
and thereafter filed a timely notice of appeal.

        A. The Search Warrant

        On January 20, 2006, a United States magistrate judge issued a warrant to search
Gunter’s residence, surrounding property, and vehicles. The application for the warrant and
the supporting affidavit were prepared by Special Agent James Williams of the Tennessee
Bureau of Investigation (“TBI”), who supervised a joint federal and state investigation that
began in November 2005.

        In the affidavit, Williams stated that he had participated in an investigation focusing
on a cocaine and marijuana distribution network involving Gunter, Harold Grooms, co-
defendant Bill Banks, and others. The investigation included the use of a confidential
informant (“CI-1”) and Williams alleged that CI-1 was an accurate and reliable source that
he had used in the past. The investigation included surveillance activities and produced a
No. 07-5277           United States v. Gunter                                        Page 3


number of recorded and unrecorded conversations where CI-1 discussed the distribution of
large quantities of cocaine with Grooms and Banks.

       Williams’ affidavit is lengthy and much of it pertains to interactions between CI-1
and Banks. However, in a Report and Recommendation recommending denial of Gunter’s
motion to suppress, the magistrate judge summarized the information in the affidavit as
follows:

       (a) CI-1 previously had sold marijuana to Harold Grooms.
       (b) CI-1 represented that he had four to six pounds of cocaine which he
       wished to sell to Harold Grooms and Mike Gunter, and he was discussing
       this potential sale with Bill Banks as an intermediary. [ . . . . ]
       (h) Banks told CI-1 that Harold Grooms and David Lancaster, an associate
       of Grooms, wanted Banks to deliver the cocaine to one of several possible
       locations.
       (i) Banks told CI-1 that Grooms and Gunter were “associates in the cocaine
       business.”
       (j) On December 13, 2005, Banks told CI-1 that Gunter had gone to Florida
       and procured one kilogram of cocaine, that Gunter also wanted to [buy] one
       kilogram of cocaine from Banks, and that he would buy even more if he was
       able to sell the kilogram he bought in Florida.
       (k) Banks consistently told CI-1, as late as January 13, 2006 (one week
       before the warrant was issued), that Gunter wanted to buy two to four
       kilograms of cocaine; Banks said that he would get the purchase money from
       Gunter and would provide samples of the cocaine to Harold Grooms for
       testing.
       (l) If the cocaine met Grooms’ test for purity, Grooms would give Banks the
       money to buy the cocaine from CI-1; Banks intended to buy cocaine for both
       Grooms and Gunter at the same time. [ . . . . ]
       (o) On January 5, 2006, Banks . . . mentioned that he had sold three
       kilograms of cocaine to Gunter.
       (p) On January 16, 2006, CI-1 told Banks that CI-1’s purported supplier of
       cocaine had to have a minimum order of eight kilograms before he would
       make a delivery; Banks stated that he intended to sell Gunter two kilograms
       of cocaine.
       (q) On January 19, 2006, Banks told CI-1 that Gunter had purchased a
       kilogram of cocaine and that Lancaster and Grooms had purchased two
       kilograms. Banks told CI-1 that Grooms was concerned about CI-1’s
       competition with Grooms’ cocaine business; Banks indicated that Grooms
No. 07-5277               United States v. Gunter                                             Page 4


        wanted to take possession of any cocaine ultimately intended for Gunter and
                                                         1
        “re-rock” it before it was delivered to Gunter. Banks told CI-1 that
        Grooms believed that CI-1 was selling his cocaine too cheaply to Gunter.
        (r) During a meeting of CI-1 and Banks, Banks received a phone call;
        Banks said the caller was Gunter, that Gunter wanted to buy two
        kilograms of cocaine for $22,000.00 per kilogram. Banks and CI-1 also
        discussed the advisability of talking to Harold Grooms to determine if
        Grooms would buy cocaine from banks and CI-1 if they agreed to sell
        only to Grooms and Lancaster, or if they agreed to sell to other customers
        after Grooms had re-rocked the cocaine.
(Joint Appendix (“J.A.”) 108 -111) (emphasis in original).

        The affidavit also stated that law enforcement agents conducted surveillance of
a January 19, 2006 meeting between the informant and co-defendant Banks. After the
meeting, agents observed Banks meet with a white female in a minivan displaying a tag
that was registered to Gunter’s home address. Agents then observed Banks travel a short
distance and meet with an individual matching Gunter’s physical description operating
a white pick-up truck. After Banks and this individual separated, the pick-up truck was
observed traveling to Gunter’s residence. Williams stated that because it was his
experience that drug traffickers kept evidence of illegal activity in their homes, he
believed that the multiple items of contraband listed in the affidavit would be found at
Gunter’s residence. A warrant was issued, and it was executed on January 26, 2006.

        Gunter moved to suppress the evidence seized form the search of his residence.
On July 7, 2006, the magistrate judge issued a Report and Recommendation
recommending denial of the motion. Gunter filed objections, but the district court
adopted the magistrate’s order and denied the motion to suppress.

        B. Trial Evidence

        Gunter’s case was tried before a jury in September 2006. Both the government
and Gunter presented witnesses.



        1
          The magistrate’s report indicates that “re-rocking” means removing some of the material from
a kilogram of cocaine and then re-packaging it to appear as if it still contained one kilogram.
No. 07-5277            United States v. Gunter                                       Page 5


        The government’s first witness was Williams, who testified that he was a TBI
agent with thirteen years experience conducting narcotics investigations, and that he led
an investigation into the drug activities of Gunter and three co-defendants beginning in
November 2005.

        Williams testified that he contacted an informant, who arranged an undercover
transaction for the sale of six to eight kilograms of cocaine to co-defendant Bill Banks
and his associates. The informant reported that he had been involved in marijuana deals
with Banks and that Banks was involved with Harold Grooms, the owner of Hilltop Auto
Sales. Agents believed Grooms was responsible for distributing between 10 and 20
kilograms of cocaine per month and Grooms was considered the main target of the
investigation.

        In the course of the investigation, agents recorded approximately 38
conversations between the informant and Banks. Those conversations were admitted
into evidence and later played for the jury. Discussing and summarizing those
conversations for the jury, Williams testified that Banks consistently stated that he knew
an individual who would “front” him the money to purchase the cocaine, and that the
individual had offered to do so on multiple occasions. Banks later clarified that this
individual was Gunter.

        Williams testified that a deal was scheduled for December 10, 2005, and that
Banks indicated that he would purchase two kilograms of cocaine from the informant
and sell it to Gunter. Williams testified that he decided to cancel the deal because he felt
the situation was unsafe. The government admitted records of cellular phone calls
between Gunter and Banks during this time frame.

        Williams also testified that the informant and Banks met in a restaurant on
January 19, 2006 to discuss a drug deal scheduled for that day that had fallen through.
Williams testified that in a recorded conversation, Banks indicated that Grooms and an
associate were “backing out” because they learned that Gunter was involved, and they
did not want to sell two kilograms of cocaine to Gunter, because “if Mr. Gunter was able
to obtain cocaine at the purity level that they believed they would be getting, prior to
No. 07-5277             United States v. Gunter                                    Page 6


them being able to cut the cocaine or rerock the cocaine and reduce its purity level, that
they felt like he would damage their business.” (J.A. 890-91.)

         Williams testified that after this meeting he saw Banks stop to speak to a white
female in a minivan. He explained that in his search warrant affidavit, he had been
mistaken when he said the minivan was registered to Gunter’s home address, and that
the minivan was not registered to Gunter. He then saw Banks travel in the direction of
I-40.

         He also testified that on January 26, 2006, the informant met with Banks, and
Banks gave the informant a package containing $48,500 in cash. A portion of the cash
was wrapped in duct tape, and a forensic scientist testified that fingerprints recovered
from the sticky side of the tape matched Gunter’s prints.

         The government also presented TBI Special Agent Robert Burnett, a surveillance
agent in the case. Burnett confirmed much of Williams’ testimony. He testified that he
observed the informant meet with Banks at a restaurant, and that Banks left the
restaurant and went to speak to an unknown white female in a minivan in a parking lot
next door. He then observed Banks get on the interstate and travel to a gas station where
he met Gunter in a white Chevrolet truck. He stated that he was able to recognize
Gunter because he had been shown pictures of him and he knew that Gunter was a target
of the surveillance. Burnett and another agent took photographs as they observed Gunter
and Banks speak for 10-15 minutes, and Burnett saw Gunter depart on I-40 East. While
on the stand, Burnett compared surveillance photographs to photographs of the truck
taken during the search of Gunter’s property, and confirmed that they were the same
truck.

         The government also presented a surveillance video of Banks’ garage on January
26, 2006, the day of the scheduled drug transaction. In the video, a truck pulled up,
Gunter walked into the garage, and Banks arrived four minutes later. The government
presented records of two phone calls between Banks and Gunter that morning.
No. 07-5277            United States v. Gunter                                    Page 7


       Williams testified that during the search of Gunter’s residence, agents found a
white Chevrolet pickup truck, a PVC pipe with the ends wrapped, a manila envelope, a
duct tape wrapper labeled “20K,” telephone records, a green note book, tax returns, and
bank records. A detective testified that “20K” represented “twenty thousand” and that
PVC pipes were often used to store drugs and money.

       Co-defendant Banks also testified pursuant to a cooperation agreement with the
government. Banks testified that shortly after he met the informant, he contacted
Gunter, who agreed to buy two kilograms of cocaine from him. He testified that one or
two deals had fallen through, and in one of these deals, he collected money from Gunter
and had to return it. He testified that eventually the deal went forward, and on January
25, 2006, Gunter brought him $22,000 wrapped in bundles with duct tape for two
kilograms of cocaine, so that Banks could give the money to the informant. Banks also
led the jury through many of the tape recorded conversations he had with the informant,
where he talked about Gunter being his customer.

       On September 19, 2006, the jury convicted Gunter of cocaine conspiracy and
possession charges, and this appeal followed.

                                    DISCUSSION

I. The Motion to Suppress

       A.      Standard of Review

       When reviewing the denial of a motion to suppress evidence, this Court reviews
the district court’s findings of fact for clear error and its conclusions of law de novo.
United States v. Foster, 376 F.3d 577, 583 (6th Cir. 2004). A factual finding is clearly
erroneous when a court, on reviewing the evidence, “is left with the definite and firm
conviction that a mistake has been committed.” United States v. Navarro-Camacho, 186
F.3d 701, 705 (6th Cir. 1999). Whether a search and seizure was reasonable under the
Fourth Amendment is a question of law. United States v. Galloway, 316 F.3d 624, 628
(6th Cir. 2003). Because the district court denied Gunter’s motion to suppress, we
No. 07-5277            United States v. Gunter                                     Page 8


review all evidence in the light most favorable to the government. United States v. Long,
464 F.3d 569, 572 (6th Cir. 2006).

       B.      Analysis

       In his first assignment of error, Gunter challenges the district court’s denial of
his motion to suppress evidence seized from his home. Gunter asserts that the affidavit
in support of the search warrant was insufficient to establish probable cause because:
(1) the hearsay information in the affidavit is not reliable evidence; (2) the affidavit
provides no nexus of any alleged illegal activity to Gunter’s residence; and (3) the lack
of probable cause was not cured by the officers’ good faith reliance on the warrant. His
argument fails on each of these points.

               1. The reliability of the evidence supporting the warrant

       First, Gunter argues that the information that linked Gunter to illegal activities
was so unreliable that it did not support a finding of probable cause.

       The Fourth Amendment of the Constitution states that “[t]he right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched,
and the persons or things to be seized.” U.S. Const. amend. IV. To determine whether
probable cause for a search exists, a judge issuing a warrant must “make a practical,
common-sense decision whether, given all the circumstances set forth in the affidavit
before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying
hearsay information, there is a fair probability that contraband or evidence of a crime
will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238-239 (1983).
The duty of a reviewing court is simply to ensure that the magistrate had a “substantial
basis” for concluding that probable cause existed. Id.

       It is well established that a magistrate may rely on hearsay evidence in making
his probable cause determination. United States v. Helton, 314 F.3d 812, 819 (6th Cir.
2003). When confronted with hearsay information from a confidential informant or an
No. 07-5277            United States v. Gunter                                      Page 9


anonymous tipster, the court should consider three factors in connection with the totality
of the circumstances inquiry: the (1) veracity; (2) reliability; and (3) basis of knowledge
of the tipster or informant. See id. These three factors should not be applied rigidly as
a test, but should be considered in weighing all of the circumstances. United States v.
Allen, 211 F.3d 970, 975 (6th Cir. 2000).

       Here, the issuing judge had Williams’ affidavit before him. Gunter argues that
the affidavit is insufficient to support a finding of probable cause because: (1) it relies
almost entirely on unreliable hearsay where an informant spoke to Banks about Banks’
alleged conversations with Gunter; (2) it provides no evidence that the informant or law
enforcement spoke with Gunter directly or observed Gunter engage in illegal activity;
and (3) it provides no information about the reliability of Banks, who is the primary
source of the statements that incriminated Gunter.

       The government asserts that the affidavit provided probable cause of ongoing
drug trafficking and emphasizes that Williams, who listened to thirty-eight recorded
conversations between the informant and Banks, had years of experience in drug
investigations and was able to independently assess that Banks was being truthful.

       First, we note that the government’s argument assigns too much weight to
Williams’ conclusions. The Supreme Court has held that a warrant application must
provide sufficient information to allow an issuing judge to independently determine
probable cause; his action cannot be a mere ratification of the conclusions of others.
Gates, 462 U.S. at 239.

       Here, however, the affidavit does support an independent determination of
probable cause. In the affidavit, Williams indicated that the informant had provided
accurate and reliable information each time he was used in the past. The informant
provided detailed information about ongoing drug transactions between Grooms and
Banks, which had been corroborated by independent police investigations, including
surveillance of meetings and review of telephone records. Under these circumstances,
the affidavit contains enough information to establish the informant’s reliability. See
United States v. Weaver, 99 F.3d 1372, 1379 (6th Cir. 1996) (information obtained from
No. 07-5277             United States v. Gunter                                    Page 10


an informant “may be bolstered if the authorities undertook probative efforts to
corroborate an informant’s claims through independent investigations”); Helton, 314
F.3d at 820 (“if the prior track record of an informant adequately substantiates his
credibility, other indicia of reliability are not necessarily required.”).

        The issue then becomes the veracity, reliability and basis of knowledge of Banks.
See Gates, 462 U.S. at 238-239. Banks’ purported basis of knowledge was his first-
hand interactions and conversations with Gunter.              Banks discussed multiple
conversations that he had with Gunter regarding past and potential future drug sales,
which included details regarding the price and the quantity to be sold.

        The informant stated that on January 5, 2006, Banks told him that he had sold
three kilograms of cocaine to Gunter, and that Banks repeatedly stated that Gunter would
“front” him the purchase money to buy two to four kilograms of cocaine. The affidavit
also indicated that during a meeting with the informant at Banks’ garage, Banks received
a phone call from Gunter, in which Gunter indicated that he would buy the two
kilograms of cocaine for $22,000 per kilogram.

        The magistrate judge reasoned that Banks was reliable because unlike a witness
presented at trial, who might have something to gain by his testimony, Banks had
nothing to gain by implicating Gunter in the context of a drug deal that was
surreptitiously recorded and that implicated Banks as well. This inference is reasonable.
The record does not provide any indication that Banks suspected that the conversations
were being recorded or that he had a motive to lie. See Stuart v. Wilson, 442 F.3d 506,
524 (6th Cir. 2006) (the lack of motive to fabricate statements supports a conclusion that
the statements are reliable). Moreover, the affidavit indicates that after a meeting
between the informant and Banks, surveillance officers observed Banks proceed directly
to meet with an individual matching Gunter’s description. This independent police
investigation corroborates the statements of Banks and enhances his reliability. See
Weaver, 99 F.3d at 1379.

        In sum, based on all of the information provided in the affidavit, including details
that corroborate the reliability of the informant and multiple recorded conversations
No. 07-5277            United States v. Gunter                                     Page 11


where Banks directly implicated Gunter, the issuing judge had a substantial basis to
conclude that Gunter was engaged in ongoing drug trafficking.

          2. The nexus between drug activity and Gunter’s residence

        Relying on United States v Carpenter, 360 F.3d 591 (6th Cir. 2004) (en banc)
and United States v. Laughton, 409 F.3d 744 (6th Cir. 2004), Gunter also argues that the
affidavit fails to establish a proper nexus between his residence and the criminal activity
at issue, as required by this Court. Gunter stresses that the affidavit does not contain any
facts indicating that Gunter was dealing drugs from his residence, and that the affidavit
only mentions his residence in one short paragraph where Williams alleges that a
surveillance agent followed a white pickup to the residence.

        This argument is misguided. As discussed above, the affidavit contains evidence
that Gunter was engaged in repeated purchases of cocaine in the one to four kilogram
range. Because the quantity of drugs and the repeated nature of the transactions make
it reasonable to conclude that Gunter was engaged in ongoing drug trafficking, it was
reasonable to infer that evidence of illegal activity would be found at Gunter’s residence.
See United States v. Jones, 159 F.3d 969, 974-75 (6th Cir. 1998) (probable cause to
search residence existed where defendant engaged in two recorded transactions outside
of his residence because “[i]n the case of drug dealers, evidence is likely to be found
where the drug dealers live”).

        Gunter also argues that the nexus between any alleged drug activity and his
residence is substantiated by false information that should be struck from the affidavit.
Under Franks v. Delaware, 438 U.S. 154 (1978), and United States v. Elkins, 300 F.3d
638, 649 (6th Cir. 2002), a reviewing court must strike from the affidavit statements
made at least with recklessness as to their truth. Gunter challenged the following
statements:

        Law enforcement agents, conducting surveillance in the area of [a]
        meeting [on January 19, 2006 between the informant and defendant
        Banks] observed BANKS meeting with a w/f in a mini-van displaying a
No. 07-5277            United States v. Gunter                                    Page 12


       TN autodealer’s tag that was registered to GUNTER’s home address . . . .
       After meeting with the w/f, agents observed BANKS travel a short
       distance down the road, where he met with an individual matching MIKE
       GUNTER’s physical description operating a white pick-up truck. After
       BANKS and this individual separated, the white pick-up truck was
       observed traveling to GUNTER’s residence at the above location.
(J.A. 86.) Gunter argues that this statement is false because, at trial, Williams testified
that the minivan’s tag was not registered to Gunter, and a surveillance officer testified
that the white truck headed toward Gunter’s residence.

       It is debatable whether these statements rise to the level of recklessness, but we
need not reach that issue. The nexus to Gunter’s residence in no way depended on a
finding that the minivan or the truck were linked to Gunter’s home. As discussed above,
a sufficient nexus was provided by the inference that evidence of drug trafficking would
be found at the residence of one who is engaged in ongoing drug trafficking.

       Based on the totality of the circumstances, we conclude that the issuing
magistrate had a substantial basis to conclude that there was probable cause that
evidence of criminal activity would be found in Gunter’s residence. Based on this
conclusion, it is not necessary to address the applicability of the “good faith” exception
articulated in United States v. Leon, 468 U.S. 897 (1984). See United States v. Miller,
314 F.3d 265, 271 (6th Cir. 2002) (good faith exception not applicable when court finds
warrant was based on probable cause). We therefore find that the district court did not
err in denying Gunter’s motion to suppress.

II. The Sufficiency of the Evidence

       A.      Standard of Review

       This Court reviews de novo the sufficiency of the evidence to sustain a
conviction. United States v. Gibson, 896 F.2d 206, 209 (6th Cir. 1990). Evidence is
sufficient to sustain a conviction if “after viewing the evidence in the light most
favorable to the prosecution, and after giving the government the benefit of all inferences
that could reasonably be drawn from the testimony, any rational trier of fact could find
No. 07-5277            United States v. Gunter                                    Page 13


the elements of the crime beyond a reasonable doubt.” United States v. M/G Transp.
Servs., Inc., 173 F.3d 584, 589 (6th Cir. 1999) (citing Jackson v. Virginia, 443 U.S. 307,
319 (1979)). In examining claims of insufficient evidence, this Court does not “weigh
the evidence presented, consider the credibility of witnesses, or substitute [its] judgment
for that of the jury.” Id. at 588-89.

       B.      Analysis

       Gunter argues that there was insufficient evidence to support his conviction for
cocaine conspiracy. To sustain a conviction for drug conspiracy, the government must
prove beyond a reasonable doubt: (1) an agreement to violate drug laws; (2) knowledge
of and intent to join the conspiracy; and (3) participation in the conspiracy. United
States v. Layne, 192 F.3d 556, 567 (6th Cir. 1999). These elements may be shown by
either direct or circumstantial evidence. United States v. Avery, 128 F.3d 966, 971 (6th
Cir. 1997). The government need not prove the existence of a formal or express
agreement among the conspirators; a tacit or mutual understanding is sufficient, so long
as the agreement is proven beyond a reasonable doubt. Id. at 970-71.

       Gunter argues that even if the trial testimony is accepted in the light most
favorable to the government, the government failed to establish anything more than a
buyer-seller relationship between Gunter and Banks. This argument lacks merit. While
a buyer-seller relationship alone does not establish a conspiracy, evidence of repeat
purchases can. United States v. Brown, 332 F.3d 363, 373 (6th Cir. 2003). Further, “[a]
large volume of narcotics creates an inference of conspiracy.” United States v.
Bourjaily, 781 F.2d 539, 545 (6th Cir. 1986) (finding that one kilogram of cocaine was
a large volume), aff’d, 483 U.S. 171 (1987).

       The evidence at trial established that Gunter had purchased cocaine in the range
of one to four kilograms in the past, that he had provided funds for the purchase of
another two kilograms, and that he indicated an intent to make repeat transactions in the
future. These facts demonstrate both repeated transactions, like in Brown, and a large
volume of cocaine, like in Bourjaily. Gunter’s actions establish more than a buyer-seller
No. 07-5277            United States v. Gunter                                    Page 14


relationship, and we conclude that they provide sufficient evidence to support the jury’s
verdict.

III.   Impeachment with Evidence of Prior Convictions

       A.      Standard of Review

       This Court reviews a district court’s denial of a motion in limine for abuse of
discretion. United States v. Talley, 194 F.3d 758, 765 (6th Cir. 1999). A district court
abuses its discretion when it relies on clearly erroneous findings of fact, when it
improperly applies the law, or when it employs an erroneous legal standard. Romstadt
v. Allstate Ins. Co., 59 F.3d 608, 615 (6th Cir. 1995).

       B.      Analysis

       Gunter argues that the district court erred when it ruled that if he elected to
testify, the government could impeach him with his prior convictions for theft. The
district court denied Gunter’s motion in limine, finding that because theft is an offense
involving dishonesty under Tennessee state law, the convictions could be used for
impeachment purposes under Rule 609(a)(2). The court also held that in the event
Gunter testified and placed his credibility at issue, any unfair prejudice would be
outweighed by the impeachment value of the testimony, and the convictions would be
admissible under Rule 609(a)(1). After these rulings, Gunter chose not to testify. On
appeal, Gunter argues that the district court erred as a matter of procedure, and that the
decision effectively deprived him of his constitutional right to testify.

       The government asserts that because Gunter did not testify, Gunter’s objection
to the district court’s ruling is not cognizable on appeal under Luce v. United States, 469
U.S. 38 (1984). We agree. In Luce, a federal defendant argued that the district court
abused its discretion in ruling that he could be impeached with his prior conviction. The
Supreme Court affirmed the conviction, reasoning that any harm from the challenged
No. 07-5277             United States v. Gunter                                     Page 15


ruling was speculative, and holding that “to raise and preserve for review the claim of
improper impeachment with a prior conviction, a defendant must testify.” Id. at 43.

        Gunter attempts to distinguish Luce by arguing that it was decided as an
interpretation of Fed. R. Evid. 609 and by arguing that the Court did not reach the
constitutional right to testify, as it did three years later in Rock v. Arkansas, 483 U.S. 44
(1987). This argument is unpersuasive. This Court has continued to apply Luce, even
after Rock was decided, to hold that the admissibility of prior convictions is not
appealable when a defendant does not testify. See United States v. Godinez, 114 F.3d
583, 586 (6th Cir. 1997); United States v. Sanderson, 966 F.2d 184, 189 (6th Cir. 1992).
Moreover, the Supreme Court has since decided Ohler v. United States, 529 U.S. 753
(2000), where it found no constitutional violation in a ruling that might deter defendants
from taking the stand, so long as it does not prevent them from doing so. Id. at 759. The
Court explained that “it is not thought inconsistent with the enlightened administration
of criminal justice to require the defendant to weigh such pros and cons in deciding
whether to testify.” Id. at 759-60 (quoting McGautha v. California, 402 U.S. 183
(1971)). Consistent with Luce and Ohler, we find that Gunter was not prevented from
testifying and that, by failing to do so, he waived his right to appeal the in limine ruling
regarding the admissibility of his prior crimes.

IV.     The Jury Instructions

        A.      Standard of Review

        Disputes regarding jury instructions are questions of law that are reviewed de
novo. William ex rel. Hart v. Paint Valley Local Sch. Dist., 400 F.3d 360, 365 (6th Cir.
2005). The refusal to give a requested instruction is reviewed for abuse of discretion.
Id. “A district court's refusal to deliver a requested instruction is reversible only if that
instruction is (1) a correct statement of the law; (2) not substantially covered by the
charge actually delivered to the jury; and (3) concerns a point so important in the trial
No. 07-5277            United States v. Gunter                                      Page 16


that the failure to give it substantially impairs the defendant’s defense.” United States
v. Williams, 952 F.2d 1504, 1512 (6th Cir. 1991).

       B.      Analysis

       Gunter was convicted of the lesser-included offense of conspiracy to distribute
and possession with intent to distribute more than 500 grams but less than five kilograms
of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846.

       The district court provided the following instructions:

              The essential elements of the first lesser offense in regard to the
       indictment, each of which the government must prove beyond a
       reasonable doubt, are:
              First: That two or more persons, directly or indirectly, reached
       an agreement to distribute and to possess with intent to distribute
       cocaine.
             Second: That the defendant, Michael Charles Gunter, knew of the
       unlawful purpose of the agreement;
               Third: That the defendant joined in the agreement willfully, that
       is, with the intent to further its unlawful purpose; and
              Fourth: That the overall scope of the conspiracy involved at least
       500 grams but less than 5 kilograms of cocaine.
(J.A. 1379-80.)

       Gunter argues that the district court abused its discretion by failing to instruct the
jury that, as to the first element of the offense, the jury had to find beyond a reasonable
doubt that “two or more persons directly or indirectly reached an agreement to distribute
and to possess with intent to distribute five kilos or more [or, in this case, the lesser-
included statutory amount] of cocaine.” (J.A. 1296.) He argues that the district court
was required to provide the proposed instruction because under Apprendi v. New Jersey,
530 U.S. 466, 490 (2000), the government is required to prove the defendant knew the
drug quantity involved in the alleged conspiracy.
No. 07-5277            United States v. Gunter                                   Page 17


       We disagree. It is settled, even after Apprendi, that the “government need not
prove mens rea as to the type and quantity of the drugs” in order to establish a violation
of § 841(b). United States v. Villarce, 323 F.3d 435, 439 (6th Cir. 2003); United States
v. Garcia, 252 F.3d 838, 844 (6th Cir. 2001). As the Garcia Court explained, drug type
and quantity are irrelevant to the mens rea element of § 841(a), which requires nothing
more specific than an intent to distribute a controlled substance. 252 F.3d at 844.
Likewise, intent is irrelevant to the penalty provisions of § 841(b), which require only
that the specified drug types and quantities be “involved” in an offense. Id. Here, the
fourth element of the court’s instruction satisfies Apprendi, and we find that the
requirement that the jury find the quantity involved in the offense beyond a reasonable
doubt was “substantially covered by the charge actually delivered to the jury” as required
in Williams, 952 F.2d at 1512.

       Accordingly, we conclude that the district court did not abuse its discretion by
failing to deliver the requested instruction.

                                    CONCLUSION

       For the reasons stated above, we AFFIRM the judgment of the district court.
