Argued September 10, 2014
Appeal from the United States District Court for the Southern District of Illinois. No. 12 CR 40094-001 -- J. Phil Gilbert, Judge.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: George A. Norwood, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Benton, IL.
For MARTY C. STACY, Defendant - Appellant: Peter W. Henderson, Attorney, John C. Taylor, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Urbana, IL.
Before WOOD, Chief Judge, and EASTERBROOK and TINDER, Circuit Judges.
Tinder, Circuit Judge.
Marty Stacy was convicted after a jury trial of conspiracy to manufacture methamphetamine, 21 U.S.C. § § 841(a)(1), 846, and possession of pseudoephedrine knowing that it would be used to manufacture methamphetamine, 21 U.S.C. § 841(c)(2). The district court sentenced him to a prison term of 336 months. On appeal, Stacy argues that the district court misapplied Federal Rule of Evidence 404(b) by admitting evidence of his prior possession of methamphetamine and unreasonably imposed a prison sentence that did not account for an alleged disparity in treatment of pseudoephedrine and methamphetamine offenses. We affirm Stacy's conviction and sentence. We conclude that the district court erred in admitting the evidence of his prior acts under the approach to Rule 404(b) adopted in United States v. Gomez, 763 F.3d 845 (7th Cir. 2014) (en banc), but that the error was harmless.
In May 2012, Michael Bertin, a sheriff's deputy in Richland County, Illinois, initiated a traffic stop of a truck driven by 17-year-old Kaleb Bracken in which Stacy was a passenger. Bertin knew at the time that Stacy and Bracken had recently purchased notable quantities of pseudoephedrine pills from local pharmacies, possibly for use in manufacturing methamphetamine. When an officer then found a glass smoking pipe in the truck, Stacy and Bracken were arrested for possession of methamphetamine. Eventually, Stacy was charged with one count of conspiracy to manufacture methamphetamine and four counts of possession of pseudoephedrine knowing that it would be used to manufacture methamphetamine.
A. NOTICE OF INTENT TO USE PRIOR-ACT EVIDENCE
As Stacy headed to trial, the government provided notice that it planned to introduce evidence under Rule 404(b) about his arrest in March 2008 for possession of methamphetamine. Stacy objected, arguing that this evidence was highly prejudicial and had low probative value because it involved different co-conspirators and possession rather than manufacture of methamphetamine. At a hearing on the matter, the government noted that Stacy had been found in 2008 with a bag of methamphetamine in his pocket and argued that this evidence went " to the heart of the intent" for the charged crimes. Without analyzing the government's argument, the district court stated that it would allow the evidence as long as the government laid a proper foundation at trial. The court promised to caution the jury about the limited use of the evidence under Rule 404(b).
B. TRIAL EVIDENCE
Stacy's trial lasted two days. Despite getting initial permission to present evidence about the 2008 incident, the government did not introduce that evidence until midway through the second day. Before that, the government presented testimony about Stacy's efforts in 2010 through 2012 to obtain pseudoephedrine pills for use in making methamphetamine.
The government's first witnesses explained that pseudoephedrine pills are necessary to make methamphetamine and legally obtainable from local pharmacies. Pharmacies must log pseudoephedrine sales in a national database and check purchases against that database to make
sure that no single person exceeds daily or monthly purchasing limits. People who cook methamphetamine sometimes seek to circumvent those limits, a police consultant said, by sending other people to purchase pills--a process called " smurfing." The government introduced logs from the national database showing ...