U.S. v. Dietrich

• Decision Date: 23 August 1988
• Docket Number: No. 87-1288,87-1288
• Citation: 854 F.2d 1056
• Parties: 26 Fed. R. Evid. Serv. 1193 UNITED STATES of America, Plaintiff-Appellee, v. John DIETRICH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1056

854 F.2d 1056

26 Fed. R. Evid. Serv. 1193

UNITED STATES of America, Plaintiff-Appellee, v. John DIETRICH, Defendant-Appellant.

No. 87-1288.

United States Court of Appeals Seventh Circuit.

Argued Jan. 22, 1988.

Decided Aug. 23, 1988.

Donna J. Cunningham, Schaumburg, Ill., for defendant-appellant.

Gwenn R. Rinkenberger, U.S. Atty's Office, Hammond, Ind., for plaintiff-appellee.

Before WOOD, Jr., FLAUM and MANION, Circuit Judges.

FLAUM, Circuit Judge.

John Dietrich was convicted of conspiring to sell counterfeit notes in violation of 18 U.S.C. Sec. 371 and selling counterfeit notes in violation of 18 U.S.C. Sec. 473. Dietrich appeals his conviction on three grounds. First, he claims that reversible error occurred when a government witness testified about taking a polygraph examination. Second, Dietrich contends that the district court committed plain error when it admitted a witness' prior inconsistent statement as substantive evidence. Finally, he asserts that it was plain error for the court to allow the government to question a Secret Service Agent regarding Dietrich's daughter's alleged role in providing information about her father, particularly when no substantive evidence was admitted to support this allegation. We affirm.

I.

On September 26, 1985, Dietrich telephoned a long-time friend, Noel Ammerman, and informed him that he was planning a trip from Indiana to Missouri, where Ammerman was living at the time. Shortly thereafter, Dietrich and his neighbor, Tom Westbrook, travelled to Missouri. Upon their arrival, Dietrich and Westbrook contacted Ammerman who introduced them to Norman Ellsworth. Ellsworth met Dietrich and Westbrook at their hotel, and the three then discussed a possible sale of counterfeit $100 federal reserve notes. After Dietrich showed Ellsworth some sample counterfeit $100 bills that he had brought with him, Ellsworth agreed to purchase approximately $20,000 worth of the counterfeit currency, at a price of $40 for each counterfeit $100 note. Once the terms of the sale were agreed upon, Dietrich and Westbrook returned to Indiana.

On October 7, 1985, Dietrich notified Ammerman that the counterfeit money was ready for pick-up in Indiana. Ammerman then contacted Ellsworth and together they travelled to Indiana. When they arrived in Hammond, Indiana, they called Dietrich and told him that they were prepared to purchase $27,000 of counterfeit $100 bills. Dietrich then met Ammerman and Ellsworth at their hotel and informed them that the counterfeit currency was not yet ready. On October 9, 1985, after a few more delays, Dietrich again met with Ammerman and Ellsworth and sold them approximately 250 counterfeit $100 federal reserve notes for $11,000 of genuine currency.

Following the purchase, Ellsworth and Ammerman travelled to Michigan where they began passing the counterfeit $100 bills. The counterfeit bills were discovered, and when Ammerman and Ellsworth returned to Missouri they were arrested on charges of passing counterfeit currency. Several days later, on October 11, Dietrich's wife and daughter were questioned by the Secret Service concerning their possible use of counterfeit currency. That same day Dietrich took a bag of counterfeit $100 bills to Westbrook's home and asked him to bury the money until the police's suspicion lessened. Although Westbrook initially buried the money as Dietrich had requested, a few days later Westbrook fled to Mississippi with the bag of counterfeit currency. Westbrook was arrested for passing counterfeit $100 bills in Mississippi, and was eventually convicted. ¹

On August 22, 1986, a grand jury returned a three-count indictment against Dietrich and Ellsworth. Count I charged both Dietrich and Ellsworth with conspiring to pass, utter, publish, and sell counterfeit federal reserve notes, and conspiring to buy, sell, exchange, transfer, receive, and deliver counterfeit currency in violation of 18 U.S.C. Sec. 371. ² Count II charged Dietrich alone with selling, exchanging, and transferring counterfeit federal reserve notes in violation of 18 U.S.C. Sec. 473. ³ Finally, Count III charged Ellsworth with buying and receiving counterfeit currency in violation of 18 U.S.C. Sec. 473.

Ellsworth pled guilty to Count I of the indictment prior to trial, and the government dismissed Count III. On December 9, 1986, following a two-day jury trial, Dietrich was found guilty on Counts I and II of the indictment. He was sentenced to a term of four years' imprisonment on each Count, with the sentences to run consecutively.

II.

Dietrich's first argument on appeal is that reversible error occurred when Ammerman, testifying as a government witness, stated that he had taken a polygraph examination. Although Ammerman testified against Dietrich at trial, prior to the trial he made several statements exculpating the defendant. During direct examination, the Assistant United States Attorney asked Ammerman about these prior inconsistent statements, and the following exchange took place:

Q: Alright. But the fact is that you proceeded to give a detailed statement about what happened afterwards, right?

A: Yes, sir.

Q: And that was the truth, right?

A: Yes, sir, and took a polygraph test.

As soon as Ammerman referred to his polygraph examination, Dietrich's counsel asked to approach the bench. At that point, the judge instructed the jury that "Well, the remark of the defendant--not the defendant, but the witness is stricken from the record, and I will admonish this jury to disregard it." Notwithstanding this instruction to the jury, Dietrich moved for a mistrial. The district court denied the mistrial motion and made no further admonishment to the jury about the polygraph testimony. On appeal Dietrich argues that Ammerman's testimony about the polygraph test constitutes reversible error. ⁴ Dietrich also asserts that the district court committed plain error when it failed to give a cautionary instruction to the jury at the conclusion of the evidence on the issue of the inadmissibility of the polygraph evidence. We hold that the district court did not err in any aspect of its handling of the polygraph testimony.

A.

In this circuit, the admissibility of polygraph evidence is left to the discretion of the district judge. See, e.g., Simmons, Inc. v. Pinkerton's, Inc., 762 F.2d 591, 604 (7th Cir.1985). "A district court's decision concerning polygraph results deserves considerable deference." United States v. Williams, 737 F.2d 594, 611 (7th Cir.1984). Thus, on appeal we will not reverse a decision to admit or exclude this type of evidence absent an abuse of discretion. United States v. Rumell, 642 F.2d 213, 215 (7th Cir.1981).

District judges generally exercise their discretion in this area in favor of excluding polygraph evidence, because doubts about the probative value and reliability of this evidence are usually found to outweigh the risk of prejudice. Id. See also United States v. Tucker, 773 F.2d 136, 141 (7th Cir.1985), cert. denied, 478, U.S. 1022, 106 S.Ct. 3338, 92 L.Ed.2d 742 (1986) (if the person taking the test refuses to agree beforehand to its admissibility irrespective of the test's outcome, the polygraph's reliability is even more questionable). In the present case neither party argues that the district court abused its discretion in excluding Ammerman's testimony that he had taken a polygraph examination. Rather, Dietrich asserts that the court's admonishment to the jury to disregard the statement was insufficient to cure the error that he contends occurred the instant Ammerman mentioned the polygraph.

Immediately after Ammerman referred to the polygraph test, the judge struck the statement from the record and admonished the jury to disregard that evidence. To the extent that Ammerman's testimony might have caused error, the district court's immediate limiting instruction cured that potential error. See Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 165, 99 L.Ed. 101 (1954) ("Our theory of trial relies upon the ability of a jury to follow instructions."). Dietrich claims that immediately after the statement was made, the judge should have given a more detailed instruction explaining that polygraph evidence is generally inadmissible because these tests are considered unreliable. Dietrich, however, never asked for a more detailed instruction. The judge's instruction was sufficient to cure any potential error that may have occurred as a result of Ammerman's testimony, and therefore its failure to give a more detailed immediate instruction did not cause plain error. See United States v. Douglas, 818 F.2d 1317, 1320 (7th Cir.1987) ("plain error must be of such great magnitude that it probably changed the outcome of the trial.").

B.

Dietrich also claims that the district court's failure to give a cautionary jury instruction on the issue of the polygraph testimony at the close of the evidence requires a reversal of his conviction. Dietrich, however, failed to proffer any jury instructions relating to this issue, nor did he object to the final jury instructions on the ground that they should contain an instruction on the polygraph question.

Federal Rule of Criminal Procedure 30 provides in part that "[n]o party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection." Where a party fails to make a specific objection to a jury instruction at trial, on appeal we must analyze the alleged error under the "plain error" standard. See United States v. Requarth, 847 F.2d 1249, 1254 (7th Cir.1988). Thus, we cannot reverse Dietrich's conviction on the ground that the district court failed to properly instruct the jury on the polygraph issue absent a showing of plain error.

A plain error is an error that is "not only palpably wrong but [is] also likely to cause...