Eighth Circuit considers challenge to prior methamphetamine manufacturing evidence by claiming the witness testimony was insufficient since she admitted using methamphetamine at the time, in United States v. Turner, 583 F.3d 1062 (8th Cir. Oct. 16, 2009) (No. 09-1328)
As one requirement in admitting other act evidence under FER 404(b), the proponent must show that the evidence is “supported by sufficient evidence to support a finding by a jury that the defendant committed the other act.” Turner, 583 F.3d at 1066 (quoting United States v. Kern, 12 F.3d 122, 124-25 (8th Cir. 1993)). The Eighth Circuit recently considered a challenge to this element in a methamphetamine manufacturing case.
In the case, after a patrol officer smelled a strong order associated with methamphetamine manufacturing coming from a residence, he contacted a narcotics task force. When other detectives arrived, they noticed the odor became stronger as they approached the residence. They observed defendant Turner and another individual inside. After the persons did not respond, and after becoming concerned about safety hazards based on the apparent manufacturing activity, the detectives forcibly entered the residence. The individuals were cleared and the fire department responded. After the air was cleared, manufacturing evidence was discovered in the residence. Both individuals were arrested. The defendant was prosecuted for manufacturing and conspiring to manufacture methamphetamine.
At trial, the defendant claimed to be merely present. The government admitting the testimony of (1) a detective concerning the investigation of a fire related to the manufacture of methamphetamine six years earlier where the defendant was found standing nearby; manufacturing tools were discovered and an “overwhelming odor of ether” was detected in his residence; (2) witness Trotter testified that she saw the defendant manufacture methamphetamine eight years earlier, she allowed him to cook methamphetamine on her property four to six years earlier, and she gave him pseudoephedrine used in the manufacture of methamphetamine in exchange for her personal use of the methamphetamine he manufactured. The jury convicted the defendant. On appeal, one claim challenged the admission of the other act evidence. As one argument, he contended the evidence of the prior methamphetamine manufacturing was inadmissible because the witness admitted using methamphetamine during the period of observations.
The Eighth Circuit affirmed the admission of the other act evidence which was probative to show knowledge of the manufacture of methamphetamine and intent to contribute to the manufacture of methamphetamine and participate in a conspiracy. In addressing the defense challenge to the sufficiency of the witness testimony, the Eighth Circuit noted:
“[Defendant] Turner argues that [witness] Trotter was not a credible witness because Trotter admittedly used methamphetamine during the period involved in her testimony, and therefore her testimony was insufficient to connect him to the prior methamphetamine manufacture. However, ‘[a]lthough [Trotter’s] checkered past may have hindered [her] reliability, we generally leave credibility determinations to the jury.’”Turner, 583 F.3d at 1066 (quoting United States v. Johnson, 439 F.3d 947, 952 (8th Cir. 2006)). The other elements to admit the other act evidence were readily met.
While the circuits differ on the elements to admit other act evidence, see generally Will The Supreme Court Eventually Resolve A FRE 404(b) Circuit Split?, most include an element requiring a sufficient basis to admit the uncharged evidence. The Turner case shows that questions concerning the sufficiency of the evidence when based on witness testimony, often go to the weight and not admissibility of the evidence. The jury, as finder of fact, will sort out any credibility issues.
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