U.S. v. Millard, 96-3749

• Decision Date: 30 March 1998
• Docket Number: No. 96-3749,96-3749
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Dean MILLARD; Julia Lynn Millard, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1200

139 F.3d 1200

UNITED STATES of America, Plaintiff-Appellee, v. David Dean MILLARD; Julia Lynn Millard, Defendants-Appellants.

No. 96-3749.

United States Court of Appeals Eighth Circuit.

Submitted April 14, 1997.

Decided March 30, 1998.

Luis Herrera, Des Moines, IA, argued (Ward A. Rouse, on the brief), for Defendants-Appellants.

Lester Alan Paff, Des Moines, IA, argued (Don C. Nickerson, on the brief), for Plaintiff-Appellee.

Before LOKEN, JOHN R. GIBSON, AND MAGILL, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

David Millard and Julia Millard, husband and wife, were found guilty of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 846 (1994), and were sentenced to life imprisonment under 21 U.S.C. § 841(b)(1)(A) (1994). ¹ The Millards appeal, arguing their convictions are based on improperly admitted evidence. The Millards also contend the district court erred in sentencing. We reverse Julia Millard's conviction and remand for a new trial. We affirm David Millard's conviction and sentencing.

In January 1995, Urbandale, Iowa police officers discovered that Chad Bowans and Tim Krueger were involved in methamphetamine transactions. Krueger would "front" methamphetamine to Bowans, and then Bowans would pay either Krueger or Krueger's cousin, Raymond "Buddy" Krejci, for the methamphetamine at a later date. Bowans agreed to cooperate with the police. On January 12, Bowans paid Krejci $1,800, which was $10,450 less than the total amount due. Krejci then delivered the $1,800 to David Millard. On January 24, Krueger collected the remaining $10,450 from Bowans. The police then confronted Krueger, and he also agreed to cooperate. Both Bowans and Krueger participated in obtaining recorded conversations.

On February 2, 1995, Agent Mark Hein gave Krueger $10,450 in marked bills, which Krueger delivered to David Millard. Later that day, police officers searched the Millards' home and David Millard's truck. The officers recovered the $10,450 in marked bills in the home and some broken triple beam scales in the attic. However, they did not locate any methamphetamine or methamphetamine residue in either the Millards' house or David's truck.

After the search, Agent Hein told the Millards that if they were arrested and found guilty of methamphetamine distribution they would receive automatic life sentences because of their earlier felony drug convictions. Hein told the Millards they would likely receive lesser sentences if they cooperated. The Millards, primarily David, thereafter cooperated and led the government to others involved in distributing methamphetamine. However, neither David nor Julia entered into a plea agreement, and the government eventually prosecuted them.

I.

The Millards argue that their convictions should be reversed because they are based on inadmissable evidence. Specifically, they contend the district court erred in admitting evidence of their prior felony drug convictions, in admitting statements made during plea discussions, and in admitting evidence of prior drug activity outside the scope of the conspiracy. None of this evidence was objected to at trial.

Ordinarily, we review a district court's evidentiary rulings for abuse of discretion. However, where there is no objection, we review the admission of evidence for plain error under Federal Rule of Criminal Procedure 52(b). ² United States v. Swanson, 9 F.3d 1354, 1356 (8th Cir.1993). In Swanson, we stated that where there is no contemporaneous objection an error "will be grounds for reversal only if the error prejudices the substantial rights of the defendant and would result in a miscarriage of justice if left uncorrected." Id. at 1357 (quoting United States v. Carey, 898 F.2d 642, 644 (8th Cir.1990)).

Since Swanson, the Supreme Court articulated a more expansive approach to the plain error doctrine in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The Court in Olano stated that for a court to correct a forfeited error under Rule 52(b):

"[t]here must be an 'error' that is 'plain' and that 'affect[s] substantial rights.' Moreover, Rule 52(b) leaves the decision to correct the forfeited error within the sound discretion of the court of appeals, and the court should not exercise that discretion unless the error 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' " Id. at 732, 113 S.Ct. at 1776

(citing United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936))).

Olano makes clear that first there must indeed be an error, and second "that the error be 'plain.' 'Plain' is synonymous with 'clear' or, equivalently, 'obvious.' " Id. at 734, 113 S.Ct. at 1777-78 (citing Young, 470 U.S. at 17 n. 14, 105 S.Ct. at 1047 n. 14). Olano continued:

The third and final limitation on appellate authority under Rule 52(b) is that the plain error "affec[t] substantial rights." This is the same language employed in Rule 52(a), and in most cases it means that the error must have been prejudicial: It must have affected the outcome of the district court proceedings.

Id.

Olano emphasized that the defendant bears the burden of persuasion with respect to prejudice and, in most cases, this court cannot correct the forfeited error unless the defendant shows that the error was prejudicial. ³ Id. Again, Young is cited for the proposition that the plain error doctrine requires an appellate court "to find that the claimed error ... had [a] prejudicial impact on the jury's deliberations." Id.

Olano went on to state that "[i]f the forfeited error is 'plain' and 'affect[s] substantial rights,' the court of appeals has the authority to order correction, but is not required to do so." Id. at 735, 113 S.Ct. at 1778. "[T]he discretion conferred by Rule 52(b) should be employed 'in those circumstances in which a miscarriage of justice would otherwise result.' " Id. at 736, 113 S.Ct. at 1779 (quoting Young, 470 U.S. at 15, 105 S.Ct. at 1046 (quoting United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 102 S.Ct. at 1592 n. 14, 71 L.Ed.2d 816 (1982))). The Court concluded that a court of appeals "should correct a plain forfeited error affecting substantial rights if the error 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' " Id. at 736, 113 S.Ct. at 1779 (quoting Atkinson, 297 U.S. at 160, 56 S.Ct. at 392). Olano cautions that the Court has "never held that a Rule 52(b) remedy is only warranted in cases of actual innocence." Id.

A.

The Millards first argue that the district court erred in admitting into evidence two prior felony drug convictions of David Millard and two prior felony convictions of Julia Millard.

The government introduced evidence of David Millard's 1980 guilty plea to sponsoring a gathering with the knowledge that a controlled substance would be distributed at the gathering; David Millard's 1990 guilty plea to the delivery of a controlled substance; Julia Millard's 1980 guilty plea to the delivery of a controlled substance; and Julia Millard's 1990 guilty plea to the delivery of a controlled substance. The Millards argue that no basis existed for admitting the prior convictions, and, further, admission of the convictions was extremely prejudicial because the prior convictions were for crimes very similar in nature to the methamphetamine charges.

The government responds that, despite the potential prejudice, the introduction of the prior convictions was not error because the Millards "invited the error" by referring to their prior drug felonies in their opening statements. Under the "invited error doctrine," if a proponent introduces inadmissable evidence, a court may permit the opponent to rebut the evidence by introducing similarly inadmissable evidence. See Ryan v. Board of Police Comm'rs, 96 F.3d 1076, 1082 (8th Cir.1996). A court may apply the doctrine "to neutralize or cure any prejudice incurred from the introduction of the evidence." Id.

Our study of the opening statements of all parties causes us to conclude that the invited error doctrine does not apply. In the government's opening statement, the Assistant District Attorney stated:

Continuing on with the investigation, the Millards were then confronted that evening and asked whether or not they would like to cooperate with the government in pursuing the investigation, and you'll hear testimony that, in fact, the investigation did proceed and, in fact, Mr. Millard agreed or named his source as a Douglas Jackson ...

... Also in evidence would be the fact that both David and Julia Millard have twice, not once, but twice been convicted of drug felony charges.

Although the Millards' attorneys discussed the Millards' prior convictions in their opening arguments, they did so only after the government had already mentioned the prior convictions in its opening statement. The Millards may have believed they had no choice but to comment on or explain away the prior convictions mentioned by the government. In any event, the Millards did not "invite the error," as the government was the first party to discuss the inadmissable prior convictions.

Furthermore, after examining the entire record, we find no permissible basis for the introduction of the Millards' prior convictions. The convictions were not an element in the offense charged and were thus irrelevant to the issues on trial. In addition, at the time the government admitted the convictions, neither David nor Julia had testified. Therefore, Federal Rule of Evidence 609(a)(1), which allows the government to introduce evidence of prior convictions to impeach a defendant's testimony, is not a possible ground for admission of the prior convictions.

In addition, the prior drug convictions are not relevant to any of the admissible purposes allowed under Federal Rule of Evidence...