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United States v. Dietrich

decided: August 23, 1988.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOHN DIETRICH, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 86-CR-88-James T. Moody, Judge.

Harlington Wood, Jr., Joel M. Flaum, and Daniel A. Manion, Circuit Judges.

Author: Flaum

JOEL M. FLAUM, Circuit Judge.

John Dietrich was convicted of conspiring to sell counterfeit notes in violation of 18 U.S.C. § 371 and selling counterfeit notes in violation of 18 U.S.C. § 473. Dietrich appeals his conviction on three grounds. First, he claims that reversible error occurred when a government witness tested 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 allegations. 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 passing the counter 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.*fn1

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. § 371.2.*fn2 Count II charged Dietrich alone with selling, exchanging, and transferring counterfeit federal reserve notes in violation of 18 U.S.C. § 473.*fn3 Finally, Count III charged Ellsworth with buying and receiving counterfeit currency in violation of 18 U.S.C. § 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 ...


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