In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2249

United States of America,

Plaintiff-Appellee,

v.

Terry Reed,

Defendant-Appellant.

Appeal from the United States District Court
for the Central District of Illinois.
No. 99-CR-20029--Michael P. McCuskey, Judge.

Argued February 21, 2001--Decided July 27, 2001


  Before Posner, Kanne, and Diane P. Wood,
Circuit Judges.

  Kanne, Circuit Judge. On June 10, 1999,
law enforcement agents executed a search
warrant at Terry Reed’s residence in
rural Atwood, Illinois. The search of
Terry’s/1 severely disheveled residence
yielded approximately eleven grams of
methamphetamine and numerous items
readily associated with the manufacture
of methamphetamine. Items recovered
outside the residence included: discarded
packaging materials for over 5000
pseudoephedrine tablets, a precursor
chemical for the manufacture of
methamphetamine; remains of a battery;
two empty Coleman fuel containers; two
propane tanks, one of which had been
exposed to anhydrous ammonia, also a
precursor chemical for methamphetamine;
and salt. Inside the house, agents seized
glass jars, syringes, plastic bags,
digital scales, lithium batteries, coffee
filters containing methamphetamine
residue, and multiple firearms.

  Terry was subsequently charged in a
single count indictment with
manufacturing methamphetamine in
violation of 21 U.S.C. sec.sec. 841(a)(1)
and 841(b)(1). At his trial, Terry
testified in his own defense. Although he
admitted to being a user of
methamphetamine, and to purchasing $100
worth of methamphetamine on the day his
house was searched, he denied any
involvement in the manufacture of
methamphetamine. Terry testified that,
with the exception of the methamphetamine
he had purchased the day of the search
and a small amount that was found under a
glass figurine in his bedroom, he had no
knowledge of any of the additional
methamphetamine seized by agents at his
residence. He further denied any
knowledge of the numerous discarded
pseudoephedrine packets found in his
family’s trash/burn barrels, explaining
that the only such packets he knew of
were those from the tablets his family
had taken for mononucleosis and sore
throats.

  Terry’s theory of defense was that he
had not manufactured methamphetamine and
that the various items found at his
residence deemed to be evidence of such
activity were not his, but instead were
put there by either his brother, Richard
Reed, or Wallace Brady. Terry testified
that he had allowed his brother, Richard,
and his brother’s wife and son, to live
in the enclosed back porch of his
residence for approximately one week at
the end of March 1999. During the last
night of his brother’s stay, Terry awoke
in the early hours of the morning to find
his brother and two men "partying around
a bucket." Terry recognized one of the
men as Michael Tucker, a man Terry
thought to be a manufacturer of
methamphetamine. Terry testified that
although he did not personally know how
to manufacture methamphetamine, it
appeared to him that this is what the
three men were doing. Therefore, he
kicked the bucket over and asked them to
leave.

  Shortly after Richard’s departure, Terry
permitted Wallace Brady, a man he met
while fishing, to live in the enclosed
porch for several months. Terry
explained, however, that he made Brady
leave approximately five to seven days
before June 10, 1999, because he caught
Brady manufacturing methamphetamine in
his backyard. Terry testified that Brady
left all of his possessions behind, some
of which Terry later moved into his
bedroom. Terry contended that some of the
items seized by agents that contained
methamphetamine were Brady’s possessions.

  In addition to his own testimony, Terry
sought to support his theory by making a
motion in limine to admit the testimony
of three witnesses, pursuant to Rule
404(b) of the Federal Rules of Evidence,
to demonstrate that Richard and Brady had
manufactured methamphetamine on other
occasions in the past.

  With regard to Richard, Terry’s attorney
orally proffered the testimony of Alice
and Richard Johnson. Specifically, this
proffer explained that the Johnsons would
testify that they allowed Richard to stay
with them in early April 1999, but that
they asked him to leave shortly
thereafter because they observed behavior
that lead them to believe that he was
manufacturing methamphetamine. The
Johnsons would have explained that while
Richard stayed with them, he was very
hyped up, never slept, and was in the
garage at all hours of the day and night.
They would have also testified that they
found several empty Coleman fuel
containers in their garage after Richard
left their residence.

  Terry also proffered the testimony of
Illinois State Police Officer Terry Eck.
Eck appeared before the court and
testified regarding a search he and other
agents had executed, pursuant to a
warrant, on Richard’s apartment on May
18, 1999. This search yielded a quantity
of methamphetamine that had been
dissolved in water and numerous packages
that had contained ephedrine or
pseudoephedrine tablets. Officer Eck also
testified that, following the search,
Richard admitted to him that he had
removed the pseudoephedrine or ephedrine
tablets from the empty packages.
  Terry also proffered the testimony of
Officer Eck to show that Brady had
manufactured methamphetamine on other
occasions. Officer Eck testified that a
search was conducted of Brady’s apartment
in Pana, Illinois in the early hours of
June 10, 1999, in response to a complaint
that there was a strong odor emitting
from Brady’s apartment. The search
yielded batteries that had been torn
apart, several empty pseudoephedrine
packages, and coffee filters. Officers
also found a plastic milk jug with a
rubber hose coming out of the top of it
that appeared to be filled with salt.
Officer Eck referred to this device as a
"gas generator." He also explained that
the equipment found at Brady’s apartment
indicated that someone at the residence
was attempting to manufacture
methamphetamine.

  The district court denied Terry’s motion
to introduce the testimony of the
Johnsons, finding such evidence to be
"too remote, not similar enough, and the
mere fact that [Richard] is a user is not
enough to come in this case." Tr. at-423-
24. The court also refused to admit
Officer Eck’s testimony describing the
May 1999 search of Richard’s apartment,
concluding that such evidence did not
provide "enough similarity or relevance
to allow the testimony of Terry Eck as
reverse 404(b) testimony." Id. at 417.
The court did admit Officer Eck’s
testimony regarding Brady, however,
because it was "similar enough in time"
and it "at least somewhat corroborate[d]
the fact that [Brady] may be involved in
methamphetamine manufacture." Id. at 421.
The jury found Terry guilty of
manufacturing methamphetamine in
violation of 21 U.S.C. sec.sec. 841(a)(1)
and 841(b)(1). He was subsequently
sentenced to 188 months incarceration.
Terry now appeals the validity of his
conviction, arguing that the district
court erred in excluding the evidence
indicating that his brother manufactured
methamphetamine.

Analysis

  We review the district court’s decision
denying the admission of Terry’s
proffered evidence for an abuse of
discretion. See United States v. Walton,
217 F.3d 443, 449 (7th Cir. 2000).
"[B]ecause of the trial judge’s first-
hand exposure to the witnesses and the
evidence as a whole, and because of the
judge’s familiarity with the case and
ability to gauge the impact of the
evidence in the context of the entire
proceeding," our review of such
evidentiary rulings "afford[s] great
deference to the trial court’s
determination." United States v. Van
Dreel, 155 F.3d 902, 905 (7th Cir. 1998).
Additionally, even if we find that the
district court erred in excluding this
evidence, we will only reverse Terry’s
conviction if the court’s error "had a
’substantial influence over the jury,’
and the result reached was ’inconsistent
with substantial justice.’" Walton, 217
F.3d at 449 (quoting Palmquist v. Selvik,
111 F.3d 1332, 1339 (7th Cir. 1997)).

  Rule 404(b)/2 of the Federal Rules of
Evidence is typically employed by federal
prosecutors seeking to rely on evidence
of a criminal defendant’s prior
convictions or other misconduct as proof
of that defendant’s "motive, opportunity,
intent, preparation, plan, knowledge, or
identity" with regard to a different
crime for which the defendant is being
prosecuted. United States v. Wash, 231
F.3d 366, 370 (7th Cir. 2000) (citations
omitted). We have explained, however,
that pursuant to Rule 404(b), "[e]vidence
regarding other crimes is admissible for
defensive purposes if it tends, alone or
with other evidence, to negate the
defendant’s guilt of the crime charged
against him." Agushi v. Duerr, 196 F.3d
754, 760 (7th Cir. 1999) (internal
quotations omitted). This type of
evidence is referred to as a "variant of
Rule 404(b), known as ’reverse 404(b),’"
evidence. United States v. Stevens, 935
F.2d 1380, 1401-02 (3d Cir. 1991). In
deciding whether to admit such evidence,
a district court "should balance the
evidence’s probative value under Rule 401
against considerations such as prejudice,
undue waste of time and confusion of the
issues under Rule 403." Walton, 217 F.3d
at 449 (internal quotations omitted).

  The evidence Terry sought to have
admitted at his trial demonstrating that
his brother, Richard, manufactured
methamphetamine on multiple occasions
fits into this category of "reverse
404(b)" evidence. Thus, the question we
must decide is whether the testimony of
the three witnesses, which indicated that
Richard had manufactured methamphetamine
at the Johnsons’ residence in early April
and at his own apartment in the middle of
May 1999, tends to negate the evidence
that Terry had manufactured
methamphetamine around June 10, 1999. The
district court answered this question in
the negative, concluding that this
evidence was marginal, at best, and too
remote to help negate the evidence of
Terry’s guilt as to the offense charged.
We find that the court did not abuse its
discretion in arriving at that
conclusion.

  Unlike Brady, who stayed with Terry up
until about a week before law enforcement
agents searched Terry’s residence,
Richard had not been on Terry’s property
since he stayed with Terry in late March.
In fact, Terry testified that he had not
even seen Richard since early April 1999.
Additionally, Terry testified that Brady
left all of his possessions at Terry’s
residence, describing these possessions
to include equipment seized by agents
that could be used to manufacture
methamphetamine and other personal items
from which agents recovered
methamphetamine. No such testimony was
offered regarding Richard. Furthermore,
Sanford Angelos, a forensic chemist from
the Drug Enforcement Agency, testified
that the condition of the methamphetamine
residue contained in the coffee filters
and the methamphetamine recovered from
inside Terry’s residence indicated that
both substances had been recently
manufactured./3 Thus, Terry’s
explanation of the events that transpired
at his house and the agent’s testimony
describing the condition of the evidence
found at Terry’s residence indicate that
while it was at least possible that Brady
may have manufactured the methamphetamine
found at Terry’s residence, no such
conclusion was possible with regard to
Richard. Therefore, we find that the
district court properly exercised its
discretion in determining that the
testimony pertaining to Richard was too
remote to negate Terry’s guilt of the
offense charged and to subsequently deny
the admission of that testimony.

  The nature and quantity of the physical
evidence recovered from Terry’s residence
was quite powerful. Additionally, Terry’s
own testimony was extremely
incriminating. When cross-examined by the
government, Terry repeatedly failed to
provide credible explanations for a
number of topics, including his family’s
use of pseudoephedrine and the origin of
physical evidence found at his residence.
Moreover, the jury convicted Terry
despite the presentation of the evidence
regarding Brady, evidence that was both
temporally corroborative with Terry’s
theory and compatible with expert
testimony regarding the condition of the
physical evidence. Therefore, even if the
district court had erred in its decision
as to the admissibility of the proffered
testimony, the evidence in this case was
so overwhelming against Terry that his
conviction was not "’inconsistent with
substantial justice.’" Walton, 217 F.3d
at 449 (quoting Palmquist, 111 F.3d at
1339).

Conclusion

  Based on the aforementioned reasons, we
AFFIRM Terry Reed’s conviction.

FOOTNOTES

/1 We will refer to Terry and Richard Reed by their
first names throughout this opinion in order to
avoid confusion.

/2 Rule 404(b) provides:

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 ab-
sence of mistake or accident. . . .

Fed. R. Evid. 404(b).

/3 The recently manufactured methamphetamine found
in Terry’s residence totaled approximately 11.4
grams. This amount greatly exceeded the quantity
of methamphetamine Chris Orndoff sold to Terry on
June 10, 1999.
