UNITED STATES of America, Appellee, v. Dale Michael LUCAS, Appellant.
No. 07-2618.
United States Court of Appeals, Eighth Circuit.
April 4, 2008.
Order on Rehearing April 30, 2008.
521 F.3d 861
Submitted: Feb. 12, 2008.
Before RILEY, BEAM, MELLOY, Circuit Judges.
PER CURIAM.
Pamir Safi was charge with the felony sexual assault of Bethany Bowen in Nebraska state court. A motion in limine was granted by the trial judge with regard to several evidentiary matters. Thereafter, a trial was held which resulted in a mistrial. A second trial was scheduled. Prior to the second trial, the trial judge renewed some or all of these earlier rulings prohibiting the use of certain terms during the course of the testimony. Prior to the completion of voir dire and jury selection, the second trial also resulted in a mistrial because of pretrial publicity arising from Ms. Bowen‘s objections to the trial court‘s evidentiary rulings. A third trial was scheduled but before it proceeded, Ms. Bowen filed this action in the federal district court seeking remedies based upon purported violations of her constitutional rights. After Ms. Bowen responded to a “show cause” order, the district court dismissed the case. After requesting reconsideration, which was denied, Ms. Bowen then filed a notice of appeal. The matter is now before us for consideration on our own motion.
The record clearly establishes that the state trial judge was never served summons in this matter. As a result, neither the district court nor this court has personal jurisdiction over the defendant/appellee. More importantly, though, the state criminal prosecution was dismissed on January 4, 2008, mooting all issues initially presented to the federal court.
In U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994), Justice Scalia, speaking for a unanimous Court stated that “[t]he established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way [to the Supreme Court] or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss.” Id. at 22, 115 S.Ct. 386 (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 40, 71 S.Ct. 104, 95 L.Ed. 36 (1950)). The Court further clarified that “mootness by happenstance provides sufficient reason to vacate.” Id. at 25 n. 3, 115 S.Ct. 386. Following the mandate of the Supreme Court and without consideration of any rulings of the district court or of any substantive issues before this court, we vacate the judgment of the district court and remand this matter with directions to dismiss.
Daniel C. Tvedt, Assistant U.S. Attorney, Cedar Rapids, IA, for appellee.
Before LOKEN, Chief Judge, RILEY and SMITH, Circuit Judges.
RILEY, Circuit Judge.
A jury convicted Dale Michael Lucas (Lucas) of attempting to manufacture
I. BACKGROUND
The charges against Lucas arose following a high-speed car chase on December 2, 2003. Around 7:43 p.m., Officer Jess Bernhard (Officer Bernhard) began pursuing a car as it left a trailer court in Waukon, Iowa. Officer Bernhard believed the driver to be Robert Bark (Bark).2 Officer Bernhard pursued the car at speeds approaching 80 miles per hour. After temporarily losing sight of the car on a gravel road, Officer Bernhard spotted the stopped car. The driver‘s door was open and the subject got out of the car. As Officer Bernhard approached, the subject jumped into the ditch and fled. Officer Bernhard pursued the subject on foot, in the dark, through a wooded area. After chasing the subject some distance into the woods, Officer Bernhard “heard a whole bunch of sticks breaking” and “what sounded like a splash.” Officer Bernhard gave up the chase when he walked over to the area and observed a twenty to thirty foot cliff with a creek below. “After a couple minutes of moaning and groaning” the subject ran off into the woods.
Officer Bernhard returned to the area where his squad car and the subject‘s car had stopped. Officer Darrell Simmons (Officer Simmons) arrived to assist Officer Bernhard in searching the car. In the ditch next to the subject‘s car, the two officers found a digital scale, a police scanner, and a loaded Intratech .22 caliber handgun.
The following morning, officers executed a search warrant at Knospe‘s trailer house, based in part on the items found in her car. Knospe and Bark were inside the trailer. According to Officer Simmons, Bark looked tired, like he had just gotten out of bed, but did not appear dirty or injured. When Officer Bernhard saw Bark, he determined Bark was not the person he had chased the night before.
On December 7, 2003, Lucas was arrested in Crawford County, Wisconsin, with a backpack containing a tank of anhydrous ammonia. Officer Bernhard was called to assist in the investigation. Officer Bernhard immediately recognized Lucas as the driver of the car he had pursued on December 2, 2003.3
Lucas was charged with attempting to manufacture methamphetamine after a prior conviction for a felony drug offense, in violation of
In addition to testimony relating to the December 2, 2003 incident, the government presented evidence of Lucas‘s criminal conduct occurring on dates other than December 2, 2003. This included testimony from: (1) Officer Scott Green relating to a 2001 search of Lucas‘s storage shed in Calmar, Iowa, and Lucas‘s resulting conviction of a drug crime; (2) Michael Weist and Stacie Martin about Lucas‘s drug activities occurring during the summer of 2003 involving the manufacture of methamphetamine; (3) Officer Dennis Cain as to events occurring on November 24, 2003, involving methamphetamine precursors found in a car associated with Lucas; and (4) Knospe regarding Lucas‘s methamphetamine activities and possession of the gun recovered in the ditch. Lucas objected to this testimony, arguing the testimony was irrelevant under Fed.R.Evid. 401 and inadmissible under Fed.R.Evid. 404(b) as evidence of other crimes, wrongs, or acts to show Lucas‘s propensity to commit the crimes charged in the instant case. The district court overruled these objections.4
The jury found Lucas guilty on all three counts. At sentencing, the district court found Lucas‘s second Iowa OWI conviction constituted a crime of violence under
II. DISCUSSION
A. Evidence of Other Bad Acts
(b) Other crimes, wrongs, or acts. 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[.]
We review for an abuse of discretion a district court‘s decision to admit evidence of other crimes, wrongs, or acts under
We conclude the district court did not abuse its discretion in admitting the contested evidence to show Lucas‘s knowledge and intent. First, Lucas‘s knowledge and intent were relevant to material issues in the case because the government was required to prove Lucas voluntarily and intentionally attempted to manufacture methamphetamine and knowingly possessed a firearm on December 2, 2003.6 “Evidence of similar drug activity is admissible in a drug prosecution case be-
cause a defendant‘s complicity in other similar transactions serves to establish intent or motive to commit the crime charged.” United States v. Johnson, 934 F.2d 936, 940 (8th Cir.1991) (citation and internal quotation marks omitted). Evidence that Lucas possessed a firearm on a previous occasion is also relevant to show knowledge and intent. See United States v. Walker, 470 F.3d 1271, 1274 (8th Cir. 2006) (citation omitted).
The evidence of Lucas‘s other criminal conduct was similar in kind and sufficiently close in time to the crimes charged. “When admitted to show intent, the prior acts need not be duplicates, but must be sufficiently similar to support an inference of criminal intent.” Id. at 1275 (citation and internal quotation marks omitted). “To determine if a crime is too remote in time to be admissible under Rule 404(b), we apply a reasonableness standard, evaluating the facts and circumstances of each case.” Id. (citation omitted). “[T]here is no specific number of years beyond which prior bad acts are no longer relevant to the issue of intent.” Id. (citation and internal quotation marks omitted). Here, the evidence showed: (1) Lucas was convicted of manufacturing methamphetamine about two years before the instant offenses; (2) in the months leading up to the instant offenses, Lucas was cooking methamphetamine; (3) less than one week after the instant offense, Lucas was arrested with a container of anhydrous ammonia in a backpack; and (4) Lucas possessed an Intratech .22 caliber handgun during the
The government presented ample evidence the other criminal conduct occurred. Lucas pled guilty to and was convicted of the 2001 methamphetamine charge; Knospe testified Lucas possessed an Intratech handgun in 2003; several witnesses testified Lucas cooked methamphetamine in the months before the instant offenses; and Lucas admitted he had anhydrous ammonia in his backpack when he was arrested in Wisconsin on December 7, 2003. This evidence easily satisfies the preponderance of the evidence standard. See Thomas, 398 F.3d at 1062.
Finally, the probative value of the evidence was not substantially outweighed by its prejudicial effect. We give substantial deference to the district court‘s determination that the probative value of the evidence outweighed its prejudicial effect. See Walker, 470 F.3d at 1275 (citation omitted). A limiting instruction diminishes the danger of unfair prejudice. Id. The district court gave a thorough and accurate limiting instruction for Lucas.
Lucas argues that, without the evidence of other criminal conduct, the jury may have disbelieved Knospe‘s testimony that Lucas had borrowed her car, found Knospe had a motive to cover for her boyfriend, Bark, and concluded Bark was the driver. Put another way, Lucas suggests the jury may have found Knospe‘s testimony incredible had the jury not been told of Lucas‘s previous involvement with methamphetamine and possession of a firearm. Witness credibility is an issue for the jury to decide. See United States v. Rogers, 91 F.3d 53, 57 (8th Cir.1996) (citation omitted). We see minimal link between Lucas‘s other criminal conduct and Knospe‘s credibility, and no unfair prejudice to Lucas. The evidence of Lucas‘s previous methamphetamine conviction, possession of a handgun, and manufacture of methamphetamine was highly probative of Lucas‘s unmistakable knowledge and intent to manufacture methamphetamine and possess a firearm in the instant case. In addition, the district court gave a limiting instruction, both during trial and in the final jury instructions, thereby minimizing any prejudice Lucas might have suffered. We therefore conclude the district court did not abuse its discretion by determining the probative value of the contested evidence outweighed its prejudicial effect.
B. OWI Conviction
We review de novo a district court‘s application of the advisory sentencing Guidelines. United States v. Spudich, 443 F.3d 986, 987 (8th Cir.2006) (per curiam).
Lucas argues the district court erred in finding Lucas was a career offender under
A panel of this court may not overrule the decision of the en banc court; only the en banc court may overrule prior circuit precedent. See United States v. Wilson, 315 F.3d 972, 973-74 (8th Cir.2003) (“this Court‘s precedent . . . prohibits any three-judge panel of the Court from overruling a previous panel opinion“); United States v. Riza, 267 F.3d 757, 760 (8th Cir.2001) (“Only the court en banc may overrule . . . prior panel opinions“). We therefore hold the district court correctly determined Lucas‘s OWI conviction constituted a crime of violence.
III. CONCLUSION
For the foregoing reasons, the judgment of the district court is affirmed.
Order on Rehearing
April 30, 2008.
The panel hereby grants Lucas‘s petition for rehearing, in part. Lucas‘s conviction is affirmed for the reasons stated in our prior opinion. See United States v. Lucas, 521 F.3d 867, (8th Cir.2008). The prior judgment of April 4, 2008, is vacated, and the case is remanded for resentencing in light of the Supreme Court‘s decision in Begay v. United States, — U.S. —, 128 S.Ct. 1581, — L.Ed.2d — (2008).
Appellant‘s petition for rehearing en banc is declared moot.
Submitted: Feb. 15, 2008.
Filed: April 4, 2008.
Danny FITZGERALD, Plaintiff-Appellant, v. ACTION, INC., Defendant-Appellee.
No. 07-2199.
United States Court of Appeals, Eighth Circuit.