Unpublished Disposition, 855 F.2d 863 (9th Cir. 1988)

MEMORANDUM^* 

On appeal, Eleanor Pritchett contends that the district court erred by admitting evidence that, though probative and relevant, had a prejudicial effect that outweighed its probative value. She also contends that she was denied effective assistance of counsel.

Under Fed.R.Evid. 404(b), evidence of other crimes is admissible if the evidence is relevant to an issue other than the defendant's character or criminal propensity. The admitted evidence was not only clear and convincing, see United States v. Dolliole, 597 F.2d 102, 107 (7th Cir. 1979), but it was probative of Pritchett's efforts to further the conspiracies with which she was charged and convicted. The record precludes a finding that its admission was error.

Pritchett's ineffective assistance claims are frivolous. She claims that her counsel failed to request an instruction that she was on trial only for the matters in the indictment, and not for attempted murder of the witness or for her heroin use. The jury was instructed only on those crimes listed in the indictment and convicted her only of those crimes. Further, Pritchett cannot show that there is a reasonable probability that the giving of the instruction would have changed the outcome of the trial. Strickland v. Washington, 466 U.S. 668, 694 (1984). This applies equally to her other allegations.

The evidence against her was overwhelming. Numerous witnesses, including participants in the importation scheme, linked her to the crimes with which she was charged and convicted. Their testimony, based on personal dealings with Pritchett, established that she recruited smugglers and took them to her contacts in Mexico. It was this evidence, not lack of counsel, that resulted in her conviction.

AFFIRMED.