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 firsthand 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 absence 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.