                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 12a0142n.06
                                                                                            FILED
                                            No. 09-6474
                                                                                       Feb 06, 2012
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


United States of America,                              )
                                                       )
       Plaintiff-Appellee,                             )
                                                       )
v.                                                     )   ON APPEAL FROM THE UNITED
                                                       )   STATES DISTRICT COURT FOR THE
Connie Avalos,                                         )   EASTERN DISTRICT OF KENTUCKY
                                                       )
       Defendant-Appellant.                            )
                                                       )
                                                       )



BEFORE: MERRITT and MOORE, Circuit Judges; MAYS, District Judge.*

       MERRITT, Circuit Judge. Defendant Connie Avalos appeals her conviction after a jury

trial for conspiracy to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C.

§ 846. She was sentenced to a mandatory term of life imprisonment pursuant to 21 U.S.C. §

841(b)(1)(A) due to her previous conviction for at least two prior felony drug convictions. Avalos

argues on appeal that the district court erred in allowing the government to introduce evidence of her

prior convictions. Avalos does not appeal her sentence. For the reasons that follow, we affirm.

                                                  I.

       This appeal involves a conspiracy ring wherein methamphetamine was purchased in

California and mailed to Kentucky. Defendant Avalos became involved through her friend,

       *
       The Honorable Samuel H. Mays, Jr., United States District Court for the Western District
of Tennessee, sitting by designation.
No. 09-6474
United States v. Avalos

codefendant Terri Kelly. Kelly regularly bought one or two ounces of methamphetamine in

California and sent it to codefendants Oshel Casto and Michael Mason in Kentucky who would then

wire money to Kelly in California. Kelly became concerned that her frequent receipt of money might

arouse the suspicions of the Internal Revenue Service, so she asked Avalos to receive some of the

payments on her behalf. When asked by Kelly, Avalos would go to WalMart and receive the wire

payment using her own identification, and a confirmation number and the sender’s name, both of

which she would receive from Kelly. Kelly would then purchase methamphetamine in the amount

Casto or Mason had ordered and send it to them after she took a small amount for her and Avalos

to share. For eight months, from June 2008 to February 2009, Avalos retrieved 17 payments, each

between $1,200 and $2,500, on behalf of Kelly. The total amount Avalos retrieved was $40,450.

       In February 2009, a postal inspector intercepted a package of methamphetamine that Kelly

had sent from California to Kentucky and arrested codefendant Casto when he came to the post

office to pick it up. A grand jury returned a six-count indictment against Avalos, Kelly, Casto and

Mason. Avalos was charged with one count of conspiracy to distribute and possess with intent to

distribute 500 or more grams of methamphetamine in violation of 21 U.S.C. §§ 841 and 846.

       Kelly, Casto and Mason pled guilty, leaving only Avalos who chose to go to trial. Casto,

Kelly and Mason testified as to the details of the conspiracy. Kelly testified that at first Avalos did

not know that Kelly was using the money to buy methamphetamine. Kelly would ask Avalos to pick

up the money for her in exchange for taking Avalos to the casino where the two of them would use

methamphetamine together. Tr. Trans. at 14-15 (Aug. 11, 2009) (transcribed under separate cover

from other trial testimony at R. 79). Kelly further testified that at some point Avalos knew that Kelly

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United States v. Avalos

was using the money to buy the methamphetamine they were using. Kelly also testified that Avalos

knew that Kelly was sending methamphetamine to Kentucky. Id. at 17-22.

       Avalos testified on her own behalf. She did not dispute retrieving the money, but she denied

any knowledge of the conspiracy and testified that she thought the money was child support for

Kelly’s minor child. Tr. Trans. at 26-29, 42 (Vol. II, Aug. 12, 2009) (R. 127). Avalos received no

payment for picking up the money, and she said that she did it because Kelly was a friend. During

examination by her own counsel, Avalos testified that she was a convicted felon and that she had

used methamphetamine. Id. at 30. Because Avalos denied knowledge of the conspiracy, the district

court ruled, over defense counsel’s objection, that pursuant to Federal Rule of Evidence 404(b), the

government could cross-examine Avalos about the prior convictions she referenced during her direct

testimony.   Id. at 34-36. The prior convictions consisted of three prior drug convictions, two of

which involved marijuana and one of which involved methamphetamine. After the government

questioned Avalos about the three prior convictions, the district court immediately gave a limiting

instruction to the jury, admonishing them to “consider the evidence only as it relates to the

government’s claim of the defendant’s intent, motive, plan, and knowledge.” The district court also

reminded the jury that the “defendant is on trial here only for the crime charged and not for any other

acts.” Id. at 38-39.

       In the final jury instructions before deliberation, the district court told the jury:

       You have heard that the defendant committed crimes other than the one charged in
       the indictment. If you find the defendant did those crimes, you can consider this
       evidence only as it relates to the government’s claim on the defendant’s intent,
       motive, plan, or knowledge. You must not consider it for any other purpose.
       Remember that the defendant is on trial here only for conspiring to distribute . . .

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No. 09-6474
United States v. Avalos

       methamphetamine, not for the other acts. Do not return a guilty verdict unless the
       government proves the crime charged in the indictment beyond a reasonable doubt.

Tr. Trans. at 82 (Vol. II, Aug. 12, 2009) (R. 127). The jury found Avalos guilty and she was

sentenced to a mandatory life sentence under 21 U.S.C. § 841(b)(1)(4) due to her prior convictions.

                                                 II.

       The defendant asserts that the district court erred by admitting into evidence her prior drug

convictions. Under Fed. Rule Evid. 404(b),1 evidence of other crimes or bad acts is admissible to

prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident. United States v. Myers, 102 F.3d 227, 233 (6th Cir.1996). Where a defendant is charged

with a specific intent offense—like conspiracy to possess and distribute drugs—evidence of her prior

convictions or bad acts may be admissible under Rule 404(b) for the purpose of proving such intent.

Myers, 102 F.3d at 234. With regards to the use of prior bad acts to prove specific intent under Rule

404(b), we have stated that:

       [W]here there is thrust upon the government, either by virtue of the defense raised
       by the defendant or by virtue of the elements of the crime charged, the affirmative
       duty to prove that the underlying prohibited act was done with a specific criminal
       intent, other acts evidence may be introduced under Rule 404(b).




       1
       The text of Federal Rule of Evidence 404(b) in effect at the time of Avalos’ trial in August
2009 provides, in relevant part:

       (b) Other Crimes, Wrongs, or Acts.—Evidence of other crimes, wrongs, or acts is
       not admissible to prove the character of a person in order to show action in
       conformity therewith. It may, however, be admissible for other purposes, such as
       proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
       absence of mistake or accident. . . .

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No. 09-6474
United States v. Avalos

United States v. Johnson, 27 F.3d 1186, 1192 (6th Cir. 1994). In Johnson, the defendant was

charged with possession with intent to distribute cocaine and the district court admitted the

defendant’s prior narcotics conviction pursuant to Rule 404(b) for the purpose of proving his specific

intent to distribute. Id. Affirming the district court, Johnson explained that when the crime charged

requires proof of specific intent, the prosecutor may use the prior bad acts to prove that intent

“notwithstanding any defense the defendant might raise.” Id. Expanding on Johnson, another panel

of this court opined that when a defendant pleads not guilty, it triggers the government’s duty to

prove his specific intent beyond a reasonable doubt. United States v. Lattner, 385 F.3d 947, 957 (6th

Cir. 2004).

       Evidence of other bad acts is “probative of a material issue other than character” when (1)

the evidence is offered for an admissible purpose; (2) the purpose for which the evidence is offered

is material or “in issue;” and (3) the evidence is probative with regard to the purpose for which it is

offered. United States v. Haywood, 280 F.3d 715, 720 (6th Cir. 2002).

       In the present case, Avalos was charged with and pleaded not guilty to engaging in a

conspiracy to distribute methamphetamine; therefore, the government was required to prove her

specific intent beyond a reasonable doubt. See generally Myers, 102 F.3d at 234. Knowledge and

intent were at issue in the trial because Avalos testified that she did not know that the money she was

retrieving for Kelly was being used to purchase drugs that were then sent to Kentucky. The

defendant’s past involvement with possession and distribution of marijuana and methamphetamine

was material to show her knowledge that the money she retrieved for Kelly was used to facilitate

drug transactions and to infer her intent to join the conspiracy—even if she did not know all the

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No. 09-6474
United States v. Avalos

details of its workings. The evidence was thus probative with regard to the purpose for which it was

offered.

       We have long held that this kind of information is admissible to prove intent to participate

in drug conspiracies. See, e.g., United States v. French, 974 F.2d 687, 694-95 (6th Cir. 1992). As

a result, the district court properly admitted this evidence, especially in light of the two lengthy

limiting instructions the court gave the jury following Avalos’ testimony and during the final charge.

The jury was properly instructed to consider the defendant’s prior convictions only as to whether

they demonstrated an intent to participate in the conspiracy at issue here. Myers, 102 F.3d at 233

(finding no error in admitting prior bad acts evidence when accompanied by a limiting instruction

as to purpose of the evidence and noting with approval the district court's repeated instructions to

the jury on consideration of this type of evidence).

       Avalos argues at length in her brief that introduction of her prior convictions was barred by

Federal Rule of Evidence 609.2 As described above, her prior convictions were properly admitted


       2
       The text of Federal Rule of Evidence 609 in effect at the time of Avalos’ trial in August
2009 provides, in relevant part:

       Rule 609. Impeachment by Evidence of Conviction of Crime
       (a) General rule.--For the purpose of attacking the character for truthfulness of a witness.
               (1) evidence that a witness other than an accused has been convicted of a
       crime shall be admitted, subject to Rule 403, if the crime was punishable by death or
       imprisonment in excess of one year under the law under which the witness was
       convicted, and evidence that an accused has been convicted of such a crime shall be
       admitted if the court determines that the probative value of admitting this evidence
       outweighs its prejudicial effect to the accused; and
               (2) evidence that any witness has been convicted of a crime that readily can
       be determined to have been a crime of dishonesty or false statement shall be admitted
       regardless of the punishment.

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No. 09-6474
United States v. Avalos

under Rule 404(b), making a decision on their admissibility under Rule 609 unnecessary. United

States v. Cowan, 174 F. App’x 307, 311 n.1 (6th Cir. 2006) (“Because the evidence was admissible

under Rule 404(b), we not need decide whether it was also admissible under Rule 609.”) Rule 609

is used primarily to impeach a witness and is used to include evidence of prior bad acts, not exclude

it. Evidence of Avalos’ prior convictions was admitted to show her knowledge of the conspiracy,

not to impeach her testimony.

       In any event, even if the evidence was admitted in error, any error was harmless. Avalos’

own counsel first introduced evidence that she was a convicted felon and had previously used

methamphetamine. The government’s cross-examination of Avalos about the prior convictions only

added a few details to what the jury already knew about Avalos’ past. In addition, there was enough

evidence presented of Avalos’ knowledge of the conspiracy that the jury’s exposure to the evidence

of her prior convictions was unlikely to change the outcome. Kelly testified repeatedly at

trial—admittedly after changing her story several times between her arrest and trial—that Avalos

knew that the money was being used to purchase drugs that were then sent to Kentucky. But Avalos’




                (b) Time limit.--Evidence of a conviction under this rule is not admissible
       if a period of more than ten years has elapsed since the date of the conviction or of
       the release of the witness from the confinement imposed for that conviction,
       whichever is the later date, unless the court determines, in the interests of justice, that
       the probative value of the conviction supported by specific facts and circumstances
       substantially outweighs its prejudicial effect. However, evidence of a conviction
       more than 10 years old as calculated herein, is not admissible unless the proponent
       gives to the adverse party sufficient advance written notice of intent to use such
       evidence to provide the adverse party with a fair opportunity to contest the use of
       such evidence. . . .

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No. 09-6474
United States v. Avalos

counsel cross-examined Kelly at length about the inconsistencies in her story, so the jury was well

aware of Kelly’s changing story about Avalos’ role.

       Avalos did not appeal her life sentence, despite the extremely harsh mandatory minimum

sentence of life imprisonment imposed. This case illustrates the excessive and overly inclusive

nature of mandatory sentences under the federal drug laws. The panel urges the government to

consider any avenues available to reduce Avalos’ sentence.

       For the foregoing reasons we affirm the judgment of conviction. This decision does not

preclude Avalos filing a timely motion for relief under 28 U.S.C. § 2255.




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