103 F.3d 553 (7th Cir. 1996)
Constance Cunningham was a registered nurse at an Indiana hospital.1 Four years before the events at issue, she had pleaded guilty to stealing Demerol from the hospital where she was then employed under another name.2 Her nurse's license had been suspended but was later reinstated subject to conditions including periodic drug testing.3
Hospital staff discovered that syringes containing the powerful painkiller Demerol had been tampered with. In some instances the Demerol had been replaced with a saline solution.4 This occurred during a period when five nurses, including Cunningham, had access to the locked cabinet in which the syringes were kept.5 All five nurses were interviewed by the police and denied having tampered with the syringes.6
Cunningham acknowledged having once been a Demerol addict.7 She said the problem was in the past and offered to have her blood and urine tested for Demerol to prove this.8 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.9 The government believed that Cunningham was stealing Demerol from the syringes in order to feed a Demerol addiction.10
After a jury trial, Cunningham was convicted 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.11 She was sentenced to 84 months in prison.12
Whether replacing Demerol with saline solution in hospital syringes constitutes tampering that places another person in danger of death or bodily injury under 18 U.S.C. § 1365(a)?13
Under 18 U.S.C. § 1365(a), product tampering occurs when a person tampers 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.14 The statute defines bodily injury to include physical pain.15 Tampering that reduces the efficacy of a drug designed to alleviate bodily injury stands on the same footing as tampering that creates a fresh injury.16 This is because in both instances an injury occurs that would not have occurred but for the tampering.17
Yes. The court reasoned that causal ascription in law is policy-driven and based on social ideas about responsibility.18 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.19 In either case there is an injury that would not have occurred had the tampering not occurred.20
The court could not think of any reason to distinguish between the two cases.21 Although there was evidence that the saline solution was not sterile and created a risk of infection, that evidence was not essential.22
The replacement of Demerol with saline solution in the syringes therefore constitutes tampering that places another person in danger of death or bodily injury under 18 U.S.C. § 1365(a).23
Whether evidence of a nurse's prior Demerol addiction, license suspension for theft, and falsification of required drug tests is admissible under Fed. R. Evid. 404(b) to show motive for tampering with Demerol syringes?24
Fed. R. Evid. 404(b) forbids the introduction of evidence of a person’s prior conduct for the purpose of showing a propensity to act in accordance with the character indicated by that conduct.25 But evidence of prior conduct may be introduced for other purposes, for example to show the defendant’s motive for committing the crime with which he is charged.26 The greater the overlap between propensity and motive, the more careful the district judge must be about admitting such evidence.27 The tool for preventing abuse is Rule 403, not Rule 404(b).28 Evidence of prior acts may also be admitted to provide essential background and context that enables the jury to understand other evidence.29
Yes. The established facts show that four years earlier Constance Cunningham pleaded guilty to stealing Demerol from another hospital under another name, resulting in suspension of her nurse's license that was later reinstated subject to periodic drug testing.30 She falsified results of some of those tests.31 The court applied the rule by determining that Cunningham's Demerol addiction supplied a specific motive to tamper with the syringes that none of the other four nurses with access possessed, distinguishing this from mere propensity evidence.32
The license suspension and falsified test results were admissible because they contextualized the addiction and supported an inference that she falsified tests to continue feeding her addiction undetected while retaining access to a supply of the drug.33 The district judge excluded the prior conviction itself, reducing any undue prejudice, and the court found no abuse of discretion in admitting the remaining evidence.34
Evidence of Constance Cunningham's prior Demerol addiction, license suspension for theft, and falsification of required drug tests is therefore admissible under Fed. R. Evid. 404(b) to show motive for tampering with Demerol syringes.35
Whether evidence that only one of five nurses with access to the syringes had a motive to steal Demerol, combined with a positive urine test, was sufficient to support a conviction for product tampering beyond a reasonable doubt?36
When the government proves that one of a limited group of individuals committed the crime and that only one member of the group possessed a motive while others did not, combined with corroborating physical evidence such as a positive drug test, the evidence may be sufficient to sustain the conviction.37
Yes. One of the nurses was the thief, and only one—Cunningham—was shown to have a motive.38 Her lawyer could have tried to show that another one had a motive too, but he did not.39 As a consequence, there was little doubt of her guilt.40 And she did flunk the urine test.41 A rational jury could therefore conclude beyond a reasonable doubt that Cunningham was the individual who tampered with the syringes.42
Evidence that only one of five nurses with access to the syringes had a motive to steal Demerol, combined with a positive urine test, was therefore sufficient to support a conviction for product tampering beyond a reasonable doubt.43