## Facts

- John Dietrich was prosecuted in the Northern District of Indiana for a counterfeit-currency scheme involving counterfeit $100 Federal Reserve notes.
- On September 26, 1985, Dietrich called his long-time friend Noel Ammerman in Missouri about traveling from Indiana to Missouri; Dietrich and his neighbor, Tom Westbrook, then traveled to Missouri.
- In Missouri, Ammerman introduced Dietrich and Westbrook to Norman Ellsworth. The men met at a hotel and discussed a sale of counterfeit $100 bills.
- Dietrich showed Ellsworth sample counterfeit $100 notes; Ellsworth agreed to purchase about $20,000 in counterfeit currency at $40 for each counterfeit $100 note.
- On October 7, 1985, Dietrich told Ammerman the counterfeit money was ready in Indiana. Ammerman and Ellsworth traveled to Indiana prepared to buy $27,000 in counterfeit $100 bills, but Dietrich said the money was not yet ready.
- On October 9, 1985, Dietrich sold Ammerman and Ellsworth approximately 250 counterfeit $100 notes in exchange for $11,000 in genuine currency.
- As part of the investigation, the Secret Service interviewed Angel Thomas. Two agents told Thomas that her common-law husband, Charles Peek, had been arrested for passing counterfeit bills and that Thomas would be arrested if she did not cooperate.
- No one else was present during the interview, and it was not recorded. During the interview, Thomas told the agents that at a meeting with Dietrich and his wife, Dietrich showed Thomas and Peek counterfeit $100 bills and asked them to get rid of the bills; Thomas said she and Peek refused.
- After the interview, Thomas signed a written statement reflecting that account.
- At trial, Thomas repudiated the signed statement, claiming she had never met Dietrich and that she fabricated the story to help Peek and avoid being arrested herself.
- Over Dietrich’s objection, the district court admitted Thomas’s signed statement and allowed the government to use it for its truth, treating it as substantive evidence under Federal Rule of Evidence 801(d)(1)(A).
- During trial testimony, Ellsworth briefly mentioned that he had taken a polygraph examination. The district court struck the reference and instructed the jury to disregard it.
- The government also questioned a Secret Service agent in a way that suggested Dietrich’s daughter had provided information about Dietrich, even though no substantive evidence was introduced to support that suggestion.

## Issues

1. Whether Dietrich was entitled to reversal because a government witness mentioned taking a polygraph examination, despite the district court striking the testimony and instructing the jury to disregard it.
2. Whether the district court committed plain error by admitting Angel Thomas’s signed statement from an unrecorded Secret Service interview as substantive evidence under Federal Rule of Evidence 801(d)(1)(A).
3. Whether it was plain error to allow questioning that suggested Dietrich’s daughter provided information about her father when no substantive evidence supported the allegation.

## Decision

- The Seventh Circuit affirmed Dietrich’s convictions for conspiracy to sell counterfeit notes (18 U.S.C. § 371) and selling counterfeit notes (18 U.S.C. § 473).
- The court held that any error from the polygraph reference was cured by the district court’s prompt action striking the testimony and instructing the jury to disregard it.
- The court held that admitting Thomas’s signed statement as substantive evidence under Rule 801(d)(1)(A) was erroneous because the statement was not made under oath at a “trial, hearing, or other proceeding,” nor in a deposition; however, the error did not rise to plain error on this record.
- The court held that the questioning implying Dietrich’s daughter cooperated with authorities did not amount to plain error because it was not a basis for the verdict given the overall evidence.

## Legal Principles

- A brief, improper reference to a polygraph examination generally does not require reversal when the trial court promptly strikes the testimony and gives an instruction to disregard it.
- Federal Rule of Evidence 801(d)(1)(A) permits substantive use of a prior inconsistent statement only when the statement was made under penalty of perjury at a trial, hearing, other qualifying proceeding, or deposition; a signed statement taken during a law-enforcement interview is not an “other proceeding” for this rule.
- Under plain-error review, an unpreserved evidentiary error warrants reversal only if it is clear and affects substantial rights such that leaving it uncorrected would seriously impair the fairness, integrity, or public reputation of the proceedings.
- Questioning that insinuates facts not supported by substantive evidence may be improper, but reversal on plain-error review requires a showing that the impropriety likely affected the outcome.

## Conclusion

The Seventh Circuit affirmed Dietrich’s counterfeiting convictions, concluding that the district court’s curative measures addressed the fleeting polygraph remark, that Thomas’s prior signed statement from a Secret Service interview was wrongly treated as substantive non-hearsay under Rule 801(d)(1)(A) but did not satisfy the demanding plain-error standard, and that the government’s questioning suggesting cooperation by Dietrich’s daughter likewise did not warrant reversal under plain-error review.


United States v. Dietrich, 854 F.2d 1056 (1988)