U.S. v. Avalos

• Decision Date: 23 October 2007
• Docket Number: No. 06-2228.,06-2228.
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Javier AVALOS, Defendant-Appellant.

506 F.3d 972

UNITED STATES of America, Plaintiff-Appellee, v. Javier AVALOS, Defendant-Appellant.

No. 06-2228.

United States Court of Appeals, Tenth Circuit.

October 23, 2007.

Arnold J. Hanuman, Broomfield, CO, appearing for Defendant-Appellant.

James R.W. Braun, Assistant United States Attorney (Larry Gomez, Acting United States Attorney, with him on the brief), Office of the United States Attorney for the District of New Mexico, Albuquerque, NM, appearing for Plaintiff-Appellee.

Before TACHA, Chief Circuit Judge, BALDOCK, and KELLY, Circuit Judges.

TACHA, Chief Circuit Judge.

A jury convicted Defendant-Appellant Javier Avalos of distribution of five grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). The District Court sentenced him to 262 months' imprisonment. He appeals both his conviction and his sentence. We exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

I. BACKGROUND

In March 2004, Special Agent James Harley of the Drug Enforcement Administration was working with a cooperating defendant, Elmer Hayes. Based on information provided by Mr. Hayes, Agent Harley instructed him to make contact with Mr. Avalos to arrange a drug transaction. On March 10, while at New Mexico State Police Headquarters, and while in the presence of Agent Harley, Mr. Hayes purportedly placed a call to Mr. Avalos's pager. Mr. Hayes received a return call, and he arranged to buy an ounce of methamphetamine for $1250 from the caller. They agreed to meet at a 7-11 in Farmington, New Mexico, to complete the transaction.

Just prior to the scheduled deal, Agent Harley drove to the 7-11 with another officer, Agent Shane Skinner, to set up surveillance. When they arrived, Agent Harley observed a man wearing a white bandana and leaning up against the door of a white Oldsmobile. Agent Skinner testified that he recognized the man and told Agent Harley that it was Javier Avalos.

Later, Mr. Hayes, who had previously been searched for money and drugs, arrived at the 7-11 wearing a transmitting device that was being monitored by Agents Harley and Skinner. He was accompanied by Agent Gary Chavez posing as his friend. Mr. Hayes approached the white Oldsmobile while Agent Chavez remained in the car about fifteen feet away. Agent Chavez testified that, at that time, the person in the Oldsmobile was sitting low in the driver's seat and that Agent Chavez could not see him. Mr. Hayes exchanged $1250 for a plastic bag containing methamphetamine through the driver's side window. Agent Chavez testified that, when the exchange took place, the man rose up in his seat and Agent Chavez was able to identify the man as Mr. Avalos.

Mr. Avalos was arrested on June 28, 2004. After he was advised of his Miranda rights, he waived those rights and agreed to speak with Agent Harley. He admitted that he had sold drugs in Farmington, but said he could not remember the specific deal on March 10, 2004.

On July 27, 2004, a grand jury indicted Mr. Avalos on one count of distribution of five grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). At trial, Agents Skinner and Chavez, as well as Mr. Hayes, identified Mr. Avalos as the person in the Oldsmobile. Mr. Avalos, however, put on an alibi defense. Jessica Chavez, with whom Mr. Avalos had an intimate relationship during the relevant time period, testified in his behalf. She testified that she was with Mr. Avalos on March 10 and that he did not go to the 7-11 that day. The jury returned a guilty verdict. The District Court sentenced Mr. Avalos to 262 months' imprisonment after concluding that he was a "career offender" as that term is used in § 4B1.1(a) of the United States Sentencing Guidelines Manual ("U.S.S.G." or "Guidelines").

Mr. Avalos timely appeals both his conviction and his sentence. He argues that (1) the District Court erred in admitting into evidence Mr. Avalos's statement regarding his prior drug trafficking activities; (2) the District Court committed reversible error when it failed to sequester witnesses after Mr. Avalos made a proper request; (3) there was insufficient evidence to support his conviction; (4) the District Court erred in adopting facts contained in the presentence report ("PSR") without first holding an evidentiary hearing; and (5) the District Court erred in applying the career offender enhancement under U.S.S.G. § 4B1.1(a).

II. DISCUSSION

A. Admissibility of Mr. Avalos's Statement Regarding Prior Drug Deals

Prior to trial, the Government notified Mr. Avalos by letter that it intended to introduce his statement to Agent Harley that he had sold drugs in Farmington, but could not remember the specific deal on March 10, 2004. The Government considered the statement "part of the res gestae of, and ... inextricably intertwined with, the charged offense." The Government also explained, however, that if the District Court considered the statement other-act evidence under Fed.R.Evid. 404(b), the letter would serve as notice of the Government's intent to introduce the statement under that rule. See Fed.R.Evid. 404(b) (requiring the prosecution to provide advance notice of intent to introduce statements under the rule). After a brief hearing on the matter, the District Court ruled that the statement was admissible under Rule 404(b), but did not indicate the reason why. On appeal, Mr. Avalos argues that the evidence was admitted in error for two reasons: first, he maintains that it was improper propensity evidence under Rule 404(b); second, he contends that it was inadmissible because the court did not first hold an evidentiary hearing to determine whether he validly waived his Miranda rights before making the statement.

1. Federal Rule of Evidence 404(b)

The Government first argues that, even though the District Court admitted the statement as other-act evidence under Rule 404(b), we can affirm on the ground that the statement constitutes direct evidence of the crime charged. See United States v. Green, 175 F.3d 822, 831 (10th Cir.1999) ("Direct evidence or intrinsic evidence of the crime charged does not fall within the ambit of the rule."). In the alternative, the Government contends that the statement was admissible as other-act evidence because it falls within one of the exceptions specified in Rule 404(b).¹ For his part, Mr. Avalos contends that the statement was not admissible under any reading of the Rules of Evidence.

We conclude that, even if the District Court erred in admitting the statement, such error was harmless given the weight of the Government's case against Mr. Avalos. See United States v. Bornfield, 145 F.3d 1123, 1131 (10th Cir.1998) ("An erroneous admission of evidence is harmless unless it had a substantial influence on the outcome or leaves one in grave doubt as to whether it had such effect." (quotation marks omitted)). Three witnesses testified that it was Mr. Avalos who distributed the methamphetamine. Agent Skinner could identify Mr. Avalos because he knew Mr. Avalos before the events giving rise to the instant offense. Agent Chavez observed the transaction and identified Mr. Avalos as the perpetrator in court. Finally, Mr. Hayes testified that he had known Mr. Avalos since middle school. He further testified that, when he began cooperating with the police, he contacted Mr. Avalos to set up a drug deal, and it was Mr. Avalos who arrived at the 7-11 and sold him the drugs.

In contrast, Mr. Avalos presented one witness, Jessica Chavez, to testify as to his whereabouts on March 10. Jessica Chavez was Mr. Avalos's girlfriend on March 10, 2004. She testified that Mr. Avalos was with her that day and that they never went to the 7-11. She further testified that she first learned about the nature of the charge against Mr. Avalos approximately one month before trial, in December 2005, when a defense investigator contacted her to ask about her relationship with Mr. Avalos. When defense counsel asked her how she could remember where she was on a specific day more than a year and a half earlier, she responded:

Because it happened — well, I do remember the incident or whatever because, well, I remember — let's see, how can I tell you? I remember because, well, I was with him at that time and I, I just, I know — Can you like rephrase your question or ask me a more specific question?

When defense counsel asked the question again, she responded that she remembered it was March 10, 2004, because Mr. Avalos had wired money in Ms. Chavez's name and she went with him to pick it up. In light of the substantial evidence establishing Mr. Avalos's identity as the perpetrator, and in light of the dubious credibility of Mr. Avalos's alibi witness, we are convinced that any erroneously admitted testimony did not have a substantial effect on the outcome of the trial.

2. Evidentiary hearing on waiver of Miranda rights

Mr. Avalos also seeks a reversal of his conviction because the District Court did not hold an evidentiary hearing to determine whether Mr. Avalos validly waived his Miranda rights before making the statement. Mr. Avalos did not raise this Miranda issue before the District Court and did not request an evidentiary hearing on the matter. Because Mr. Avalos did not raise the issue below, he has waived it. See United States v. Miller, 987 F.2d 1462, 1464 (10th Cir.1993) (failure to bring a pretrial motion to suppress a confession as involuntary waives the issue; the district court is under no duty to hold an evidentiary hearing when the issue is not timely raised); see also United States v. Brooks, 438 F.3d 1231, 1239-40 (10th Cir.2006) (declining to address on appeal defendant's contention that evidence obtained in violation of the Fourth Amendment should have been suppressed when issue was not raised below); United States v. Yannott, 42 F.3d 999, 1005 (6th Cir. 1994) (declining to address on appeal defendant's contention that his confession was involuntary when issue was not raised below)...