                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-1755
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa.
Joel Leon Beal,                         *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: October 13, 2005
                                Filed: December 12, 2005
                                 ___________

Before ARNOLD, MURPHY, and GRUENDER.
                           ___________

MURPHY, Circuit Judge.

       Joel Leon Beal was convicted of manufacturing or attempting to manufacture
50 grams or more of actual methamphetamine after having previously been convicted
of a felony drug offense in violation of 21 U.S.C. § 841(a)(1). The district court1
sentenced him to 360 months, and Beal appeals. He argues that the district court erred
by denying his motions to suppress and for a mistrial and by limiting his cross
examination of a government witness. We affirm.


      1
        The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
       Eric Barker, a loss prevention officer at a Wal-Mart store in Cedar Rapids,
Iowa, called police on the afternoon of May 6, 2004 to report that a man had just left
the store after stealing lithium batteries. He also described the suspect and his vehicle.
On his way to Wal-Mart Officer Wayne Handeland noticed a vehicle driving toward
him that matched the description and license number reported by Barker. Handeland
stopped the vehicle and talked with the driver who was Joel Beal. Beal did not have
any form of identification with him, and he gave the officer the name of his twin
brother, Justin Leroy Beal. Officer Handeland learned through a background check
that Justin had a suspended license, and Beal was arrested for driving with a
suspended license. The police confirmed that he fit the description of the man who
had taken the batteries from Wal-Mart.

       The Cedar Rapids Police Department requires that an inventory search be
conducted and the vehicle towed when the driver is arrested and there is no other
licensed driver in the car. The officers saw a twin pack of Duracell lithium batteries
on the floor of the front seat of Beal's car. In the backseat they found additional
lithium batteries, a Wal-Mart sack containing baby wipes and garbage bags, a Wal-
Mart receipt, Rubbermaid pitchers, starting fluid, Muriatic acid, and an overnight bag.
The officers found a scale and baggies inside the bag (at the station other officers
performed a thorough search of the bag and found a methamphetamine pipe and a
coffee filter with residue). They found a black garbage bag in the trunk which
contained 76 empty boxes and numerous blister packs for pseudoephedrine tablets,
peeled lithium batteries, a coffee filter with residue, ground pseudoephedrine, and a
tissue with blood on it. Also in the trunk were cans of starting fluid, a large canister
of diesel starting fluid, and invoices from Altorfer and Martin Equipment.

       Beal had been able to call his girlfriend, Stacy Ellis, while he was waiting for
Handeland to complete his background check. Ellis was the registered owner of the
vehicle, and she arrived at the scene before the officers searched it. After they began
their search, Ellis told them she owned the car and offered to take custody of it. The

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officers declined her offer, telling her that they had seen precursors to
methamphetamine manufacturing in the car. Beal moved to suppress all evidence
obtained from the vehicle, arguing that the warrantless search infringed his
constitutional rights because Ellis had been present and willing to take the vehicle.
The district court denied the motion, and the case proceeded to trial.

        At trial the government presented the testimony of three police officers. Two
testified about what was found in the vehicle, and Officer Anthony Robinson
explained that the materials found were consistent with methamphetamine
manufacture and distribution. The prosecutor asked Robinson what Beal's criminal
history was, and he answered that Beal had two state court convictions for possession
with intent to deliver methamphetamine, as well as prior theft convictions. Beal
objected to mention of the theft convictions and moved for a mistrial. The district
court sustained the objection but denied the mistrial motion and gave the jury a
curative instruction to which Beal agreed. An expert from the Iowa Criminalistics
Laboratory in Des Moines testified that tests conducted on substances found in the
vehicle revealed pseudoephedrine. Representatives from Martin Equipment and
Altofer testified that they sold Beal the starting fluid found in the car, and a Wal-Mart
employee showed a store videotape of an individual resembling Beal in the process
of purchasing pseudoephedrine. The Wal-Mart loss prevention officer who made the
report leading to Beal's arrest testified that he had seen Beal steal lithium batteries and
purchase Rubbermaid pitchers and baby wipes. The government also introduced
evidence that Beal had no taxable income from the second quarter of 2003 through the
second quarter of 2004 and that a practical yield of 53 to 67 grams of
methamphetamine would have been produced from the materials in the car.

       Two jailhouse informants testified for the government. Cesar Cardenas told the
jury that Beal admitted to him that he had used the materials found in the vehicle to
manufacture methamphetamine and that he had purchased pseudoephedrine in
Chicago. Beal attempted to impeach Cardenas by questioning him about other cases

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in which he had testified and in which the juries returned verdicts inconsistent with
his testimony. The government objected, and the district court sustained the objection.
Andre Jackson, another inmate, testified that Beal told him he had been caught with
pseudoephedrine pills in his trunk, that he had used the pills to manufacture
methamphetamine, and that he planned to introduce evidence that his identical twin
was the individual on the Wal-Mart videotape.

       Beal introduced evidence to counter the government's case. His younger
brother Jeremy testified that Beal earned money fixing cars, that he used starting fluid
when he worked on vehicles, and that the batteries in his camera were dead. Jeremy
also testified that the individual purchasing pseudoephedrine on the Wal-Mart
videotape appeared to be Beal's twin brother Justin, that Justin had methamphetamine
related convictions, and that Justin had previously borrowed the car driven by Beal
on the day of the arrest. Jeremy's girlfriend testified that Beal lived with them and
worked on vehicles. The defense also introduced undisputed evidence that it was not
Beal's blood that was in the garbage bag with the precursor materials.

      Beal called other inmates to undermine the testimony by Cardenas and Jackson.
Michael Bergman testified that Beal did not talk to other inmates and had not talked
to Andre Jackson. Vincent Allen testified that he never heard Beal tell Cardenas about
the matters he testified about and that he would have been able to hear any
conversation between the two. He also testified that Beal told him he picked up the
bag of empty pseudoephedrine boxes while he was out fishing or hunting for
mushrooms.

      The jury returned a guilty verdict, finding that Beal had manufactured or
attempted to manufacture 50 grams or more of methamphetamine after a prior
conviction for a felony drug offense, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), 846 and 851. Due to uncertainty in the law after Blakely v.
Washington, 542 U.S. 296 (2004), and before United States v. Booker, 543 U.S. 220

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(2005), the jury was also asked to decide certain sentencing facts beyond a reasonable
doubt. It found that Beal was at least eighteen years old at the time of the offense and
that he had two previous convictions for possession of methamphetamine with intent
to deliver. Based on a total offense level of 37 and Beal's criminal history category
VI, the court imposed a 360 month sentence.

       Beal appeals, claiming that the trial court erred by denying his motion to
suppress because the warrantless search was unnecessary and it infringed his Fourth
Amendment rights. The government responds that the officers followed
constitutionally permissible procedures when they conducted the inventory search and
that the search was performed incident to a lawful arrest and with probable cause.
"We will uphold the district court's denial of a motion to suppress unless it rests on
clearly erroneous findings of fact or reflects an erroneous view of the applicable law."
United States v. Rogers, 150 F.3d 851, 855 (8th Cir. 1998).

       Vehicle searches without a warrant are per se unreasonable, subject to a few
well-established exceptions. United States v. Madrid, 152 F.3d 1034, 1037 (8th Cir.
1998). "Law enforcement officers may conduct a warrantless search and inventory
in order to protect the owner's property, to protect the police against claims of lost or
stolen property, and to protect the police from potential danger." United States v.
Hartje, 251 F.3d 771, 775 (8th Cir. 2001). Officers "may not raise the inventory-
search banner in an after-the-fact attempt to justify what was . . . purely and simply
a search for incriminating evidence," United States v. Marshall, 986 F.2d 1171, 1174
(8th Cir. 1993), but they are permitted to "keep their eyes open for potentially
incriminating items that they might discover in the course of an inventory search, as
long as their sole purpose is not to investigate a crime." Id. at 1176. The search must
be reasonable in light of the totality of the circumstances. Id. at 1174.

      Beal argues that the search of the vehicle was impermissible because it was
performed for investigatory purposes only. Since the registered owner had arrived at

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the scene of the stop and was ready and willing to take the vehicle, he asserts that
there was no need for officers to impound the car and inventory its contents. Beal
does not cite to any cases in which an inventory search was found to be invalid
because a vehicle's registered owner appeared before it was impounded. Here, the
officers followed the Cedar Rapids Police Department policy governing inventory
searches when it performed the search, see United States v. Petty, 367 F.3d 1009,
1013 (8th Cir. 2004), and there is no indication that the policy permits officers to
perform inventory searches in an unconstitutional manner. Beal had been alone in the
vehicle at the time of his arrest, and the police could not have been sure that it was
safe for Ellis to take possession of it. Hartje, 251 F.3d at 775. They also avoided any
potential ownership dispute concerning the vehicle or personal property by following
the departmental policy of impounding the car and inventorying its contents. Id. The
district court did not err in denying Beal's suppression motion.

       The government argues that even if Beal were correct in contending that there
was not a permissible inventory search, a warrantless search of the automobile would
have also been permissible based on probable cause and as a search incident to a
lawful arrest. Beal does not challenge the lawfulness of his arrest, and the officers had
the authority to search the passenger compartment of the vehicle incident to the arrest.
New York v. Belton, 453 U.S. 454, 460 (1981). Because Beal fit the description of
the battery thief, his vehicle had the same license number as described by Wal-Mart
personnel, and a Wal-Mart sack was visible in the backseat, Handeland also had
probable cause to search the vehicle for evidence of the stolen batteries. United States
v. Payne, 119 F.3d 637, 642 (8th Cir. 1997). The discovery of known precursors to
the manufacture of methamphetamine in both the front and backseats created probable
cause to continue searching the entire vehicle for further evidence of the manufacture
of methamphetamine.

      Beal also argues that the district court abused its discretion in refusing to grant
his motion for a mistrial based on prosecutorial misconduct. He claims that the

                                          -6-
prosecutor improperly encouraged a witness to testify about his inadmissable prior
theft convictions by asking an overly broad question about his criminal history. He
asserts that evidence of the prior thefts was especially harmful to his case because
there was not strong evidence of guilt and the jury could have assumed that he had
previously been convicted of stealing items relating to manufacturing
methamphetamine. The government argues that the defendant's rights were not so
substantially affected by Officer Robinson's reference to Beal's theft convictions so
as to necessitate a new trial. In determining whether a defendant has been deprived
of a fair trial, we consider three factors: (1) the cumulative effect of the misconduct;
(2) the strength of the properly admitted evidence of the defendant's guilt; and (3) the
curative action taken by the district court. United States v. Beeks, 224 F.3d 741 (8th
Cir. 2000).

       The district court is in a better position to measure the effect of inadmissable
testimony on a jury than an appellate court, United States v. Nelson, 984 F.2d 894,
897 (8th Cir. 1993), and we will only reverse on a showing the court abused its
discretion. United States v. Hernandez, 779 F.2d 456, 458 (8th Cir. 1985). Beal is
only entitled to a mistrial if mention of his theft convictions so prejudicially affected
his rights that he did not receive a fair trial. Beeks, 224 F.3d at 745 (8th Cir. 2000).

      The trial spanned two days and involved eighteen witnesses. The effect of
Officer Robinson's comment concerning Beal's prior theft convictions was a single
remark in the midst of trial. See United States v. Flute, 363 F.3d 676, 678 (8th Cir.
2004). The court also gave the jury a curative instruction which Beal had approved,
and there is no indication the jury was inclined to disregard the judge's instruction.
See United States v. Nelson, 984 F.2d 894, 897 (8th Cir. 1993). The jury heard
overwhelming evidence of Beal's guilt, including the discovery in his possession of
various precursor materials for manufacturing methamphetamine along with actual
pseudoephedrine powder. We conclude the district court did not abuse its discretion
by denying Beal's motion for a mistrial.

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       Finally, Beal argues that the district court erred by limiting his cross
examination of government witness Cesar Cardenas. Cardenas was a jailhouse
informant who had previously testified in at least two other trials in which defendants
had been found not guilty. Beal argues that the jury verdicts in these other trials
reveal a pattern of untruthfulness on the part of Cardenas and that he had a character
for untruthfulness. He contends that he should therefore have been permitted to ask
Cardenas about the other trials. We review evidentiary rulings regarding the proper
scope of a cross examination for an abuse of discretion. United States v. Johnson, 914
F.2d 136, 138 (8th Cir. 1990).

      Federal Rule of Evidence 608(b) permits the court in its discretion to allow
cross examination of witnesses regarding specific instances of a witness's own
conduct if the past experiences are probative of a character for untruthfulness. Even
if admissable under Rule 608(b), a district court may nevertheless exclude the
evidence if its "probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence." Fed. R.
Evid. 403.

       There is no way to know the basis for the jury acquittals in the other cases in
which Cardenas testified. We have recognized a court's inability to"discern what the
jury really meant" or the "possibility that the jury exercised lenity." United States v.
Kragness, 830 F.2d 842, 859 n.15 (8th Cir. 1987). Many factors influence a verdict,
including the strength of each side's case, the instructions given to the jury, and the
context in which the individual witnesses testify. Introduction of evidence about jury
verdicts in unrelated cases would have prolonged the trial and confused the jury. See
Fed. R. Evid. 403. The district court did not abuse its discretion by limiting the cross
examination of Cardenas.

      For these reasons the judgment of the district court is affirmed.
                      ______________________________

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