U.S. v. Cunningham, 96-1277

• Decision Date: 26 December 1996
• Docket Number: No. 96-1277,96-1277
• Parties: 45 Fed. R. Evid. Serv. 919 UNITED STATES of America, Plaintiff-Appellee, v. Constance F. CUNNINGHAM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 553

103 F.3d 553

45 Fed. R. Evid. Serv. 919

UNITED STATES of America, Plaintiff-Appellee, v. Constance F. CUNNINGHAM, Defendant-Appellant.

No. 96-1277.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 20, 1996.

Decided Dec. 26, 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.

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. § 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, 124 Mich.App. 672, 335 N.W.2d 226, 230 (1983); cf. People v. Moreno, 61 Cal.App.3d 688, 693-94, 132 Cal.Rptr. 569 (1976) (man's theft of a woman's underwear); contra, State v. LeFever, 102 Wash.2d 777, 690 P.2d 574, 576-78 (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, 156 Cal.App.2d 305, 319 P.2d 731, 734 (1957) (possession of drugs); State v. Wedemann, 339 N.W.2d 112, 115 (S.Dak.1983) (firebug); but cf. State v. Carty, 231 Kan. 282, 644 P.2d 407, 411-12 (1982) (same, but motive not an issue). Sex crimes provide a particularly clear example. Most peopl...