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United States v. Cunningham |
UNITED
STATES OF AMERICA, Plaintiff-Appellee
v.
CONSTANCE F.
CUNNINGHAM, Defendant-Appellant.
No. 96-1277
In the United States Court of Appeals For the
Seventh Circuit
ARGUED SEPTEMBER 20, 1996
DECIDED DECEMBER 26, 1996
103 F.3d 553 (7th Cir. 1996)
Mark D. Stuaan (argued), Office of the United States
Attorney, Indianapolis, IN, for Plaintiff-Appellee
Jeffery L. Lantz (argued), Evansville, IN, for
Defendant-Appellant
Appeal from the United States District Court for the
Southern District of Indiana, Evansville Division
Gene E. BROOKS, Judge
Before POSNER, Chief Judge, and CUDAHY and DIANE P.
WOOD, Circuit Judges
POSNER, Chief Judge
Constance Cunningham was sentenced to 84 months in
prison after being convicted by a jury of tampering with a consumer
product "with reckless disregard for the risk that another person will
be placed in danger of death or bodily injury and under circumstances
manifesting extreme indifference to such risk." 18 U.S.C. § 1365(a).
Cunningham was a registered nurse at an Indiana hospital. The hospital
staff discovered that syringes containing the powerful painkiller
Demerol (a brand name for meperidine hydrochloride, Physician's Desk
Reference 2206 (49th ed. 1995), a Schedule II controlled substance, 21
C.F.R. sec. 1308.12(c)(18) (1996)) had been tampered with; in some
instances the Demerol had been replaced with a saline solution.
Cunningham was one of five nurses who, during a period when some of
the syringes were known to have been tampered with, had access to the
locked cabinet in which they were kept. All five nurses were
interviewed by the police and denied having tampered with the
syringes. But Cunningham acknowledged having once been a Demerol
addict. She said the problem was in the past and to prove this she
offered to have her blood and urine tested for Demerol. The blood test
was negative but the urine test positive, which was consistent with
recent use, since Demerol remains in the urinary tract longer than in
the bloodstream. The government believes that Cunningham was stealing
Demerol from the syringes in order to feed a Demerol addiction.
Cunningham argues that merely withholding pain
medication does not "place" anyone "in danger of . . . bodily injury."
The statute defines "bodily injury" to include "physical pain," 18
U.S.C. § 1365(g)(4)(B), but she argues that failing to relieve pain is
not the same as causing pain. Since with the pain medication there is
no (or less) pain, the withholding of the medication is a necessary
condition of pain; but not all necessary conditions are causes. Having
a nervous system is a necessary condition of experiencing pain, but we
would not ordinarily say that having a nervous system causes pain.
Causal ascription is purposive. In law it is based on social ideas
about responsibility; it is policy-driven. In light of the goals
reasonably to be imputed to a statute that punishes product tampering
with injurious consequences expressly including pain, conduct that
perpetuates an injury by preventing it from being alleviated by the
product designed for that end is on the same footing as tampering that
creates a fresh injury, as when the tamperer introduces a poison into
a drug. In either case there is an injury that would not have occurred
had the tampering not occurred. We cannot think of any reason to
distinguish between the two cases. There was also evidence that the
saline solution that replaced the Demerol, not being sterile, created
a risk of infection. This evidence was not essential and we do not
rely on it, because the statute as we interpret it forbids tampering
that reduces the efficacy of a drug designed to save life or alleviate
a bodily injury, as well as tampering that turns the drug into a
poison. We cannot find a case that so holds, but our interpretation
was assumed in United States v. Eide, 875 F.2d 1429, 1432-33 (9th Cir.
1989), and no cases are contrary.
We must next consider whether the district judge
abused his discretion in admitting evidence of prior "bad acts" of the
defendant. Fed. R. Evid. 404(b). Four years before the tampering,
Cunningham had pleaded guilty to stealing Demerol from the hospital at
which she was then employed as a nurse under another name. Her nurse's
license had been suspended, but it had later been reinstated subject
to several conditions including that she submit to periodic drug
testing. She falsified the results of some of these tests. The judge
sustained an objection to placing the conviction in evidence but
allowed in the suspension of her license because of her earlier theft
of Demerol, the falsification of the test results, and the addiction
that had led to the earlier theft and resulting suspension.
Rule 404(b) forbids the introduction of evidence of
a person's prior conduct (wrongful or otherwise, United States v.
Hill, 40 F.3d 164, 168 (7th Cir. 1994), but normally wrongful) for the
purpose of showing a propensity to act in accordance with the
character indicated by that conduct. So the fact that Cunningham had
stolen Demerol in the past could not be introduced to show that she is
likely to have stolen Demerol in the present. But evidence of prior
conduct may be introduced (subject to the judge's power to exclude it
under Rule 403 as unduly prejudicial, confusing, or merely cumulative)
for other purposes, for example to show the defendant's motive for
committing the crime with which he is charged.
"Propensity" evidence and "motive" evidence need not
overlap. They do not, for example, when past drug convictions are used
to show that the defendant in a robbery case is an addict and his
addiction is offered as the motive for the robbery. See, e.g., People
v. McConnell, 335 N.W.2d 226, 230 (Mich. App. 1983); cf. People v.
Moreno, 61 Cal.App.3d 688, 693-94 (1976) (man's theft of a woman's
underwear); contra, State v. LeFever, 690 P.2d 574, 576-78 (Wash.
1984) (addiction as motive for robbery). They do overlap when the
crime is motivated by a taste for engaging in that crime or a
compulsion to engage in it (an "addiction"), rather than by a desire
for pecuniary gain or for some other advantage to which the crime is
instrumental in the sense that it would not be committed if the
advantage could be obtained as easily by a lawful route. See, e.g.,
People v. Hancock, 319 P.2d 731, 734 (Cal.App. 1957) (possession of
drugs); State v. Wedemann, 339 N.W.2d 112, 115 (S. Dak. 1983)
(firebug); but cf. State v. Carty, 644 P.2d 407, 411-12 (Kan. 1982)
(same, but motive not an issue). Sex crimes provide a particularly
clear example. Most people do not have a taste for sexually molesting
children. As between two suspected molesters, then, only one of whom
has a history of such molestation, the history establishes a motive
that enables the two suspects to be distinguished. In 1994, Rule 414
was added to the Federal Rules of Evidence to make evidence of prior
acts of child molestation expressly admissible, without regard to Rule
404(b). See also Rules 413 and 415; United States v. Roberts, 88 F.3d
872 (10th Cir. 1996) (per curiam). But the principle that we are
discussing is not limited to sex crimes. A "firebug" — one who commits
arson not for insurance proceeds or revenge or to eliminate a
competitor, but for the sheer joy of watching a fire — is, like the
sex criminal, a person whose motive to commit the crime with which he
is charged is revealed by his past commission of the same crime. State
v. Wedemann, supra. No special rule analogous to Rules 413 through 415
is necessary to make the evidence of the earlier crime admissible,
because 404(b) expressly allows evidence of prior wrongful acts to
establish motive. The greater the overlap between propensity and
motive, the more careful the district judge must be about admitting
under the rubric of motive evidence that the jury is likely to use
instead as a basis for inferring the defendant's propensity, his
habitual criminality, even if instructed not to. But the tool for
preventing this abuse is Rule 403, not Rule 404(b).
We do not have a complete overlap between evidence
of propensity and evidence of motive in this case. Most people don't
want Demerol; being a Demerol addict gave Cunningham a motive to
tamper with the Demerol-filled syringes that, so far as appears, none
of the other nurses who had access to the cabinet in which the
syringes were locked had. No one suggests that any of the five nurses
might have wanted to steal Demerol in order to resell it rather than
to consume it personally. Because Cunningham's addiction was not to
stealing Demerol but to consuming it, this case is like Moreno, where
the defendant's sexual fetish supplied the motive for his stealing
women's underwear, and McConnell, where the defendant's drug addiction
supplied the motive to rob — he needed money to buy drugs. Cunningham
was in a position to steal her drug directly.
The evidence of her addiction was thus admissible,
United States v. Troop, 890 F.2d 1393, 1401-02 (7th Cir. 1989); United
States v. Kadouh, 768 F.2d 20, 21 (1st Cir. 1985), unless the judge
decided that its prejudicial effect — the effect that is inherent in
any evidence that a jury, however instructed, might use to draw the
forbidden inference that once a thief always a thief — clearly
outweighed its probative value. He thought not, and we cannot say that
this was an abuse of discretion. Remember that the judge excluded the
evidence of Cunningham's conviction. That evidence would have been de
trop, given the evidence of her addiction, which supplied the motive.
What is more, the evidence of the conviction would not have
distinguished between the addiction that furnished a motive to steal,
and a propensity to steal — a nonaddict might steal drugs to resell
them.
The evidence of Cunningham's suspension might seem
to have been similarly superfluous and equivocal, as being merely the
civil equivalent of the criminal conviction that the judge properly
excluded. But the suspension, unlike the conviction, did not merely
duplicate the evidence of Cunningham's addiction or insinuate a
propensity to steal; it also provided essential background to the
evidence of her having falsified the results of tests required as a
condition of regaining her license. That evidence furnished the basis
for an inference that she had falsified the test results in order to
enable her to continue to feed her addiction without detection and
without losing access to a "free" supply of the addictive substance,
and so, like the addiction itself, established motive to tamper with
the Demerol syringes. Granted, an alternative inference was that she
had falsified the test results in order to be able to work as a nurse.
But the jury was entitled to choose between these inferences, rather
than having the evidence from which the inference was to be drawn
withheld from them. Without knowing that she had been suspended, the
jury would have wondered why she had been tested and had falsified the
test results. The admission of bad-acts evidence to contextualize, and
by contextualizing enable the jury to understand, other evidence is a
recognized exception to the prohibition of bad-acts evidence. United
States v. Cox, 923 F.2d 519, 523 (7th Cir. 1991); United States v.
Mancari, 875 F.2d 103, 105 (7th Cir. 1989); United States v. Moreno,
991 F.2d 943, 946 (1st Cir. 1993).
With the challenged evidence in, Cunningham's last
argument — that the evidence of her guilt was insufficient to convict
her of product tampering beyond a reasonable doubt — collapses. One of
the nurses was the thief, and only one — Cunningham — was shown to
have a motive. Her lawyer could have tried to show that another one
had a motive too (not necessarily the same motive), but he did not. As
a consequence, there was little doubt of her guilt. And she did flunk
the urine test.
AFFIRMED.
