United States v. Leonard

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
February 24, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 04-6361
DAVID MARLAND LEONARD, JR.,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. CR-03-203-T)

Jenine Jensen, Assistant Federal Public Defender (Raymond P. Moore, Federal
Public Defender, with her on the briefs) for Defendant-Appellant.

Randal A. Sengel, Assistant United States Attorney (Robert G. McCampbell,
United States Attorney, with him on the brief) for Plaintiff-Appellee.

Before BRISCOE , McKAY , and McCONNELL , Circuit Judges.

McCONNELL , Circuit Judge.

On June 14, 2003, David Leonard, an unlicensed driver, collided head-on

with a vehicle driven by Gail Sankadota. Ms. Sankadota’s pregnant daughter was

killed in the accident and Ms. Sankadota was seriously injured. Mr. Leonard was
charged with two counts of second degree murder and one count of assault

resulting in serious bodily injury, in violation of 18 U.S.C. §§ 1111(a), 1153(a),

and 113(a)(6), respectively. A jury convicted Mr. Leonard on two counts of the

lesser included offense of involuntary manslaughter, and assault resulting in

serious bodily injury. On appeal, Mr. Leonard challenges three of the district

court’s evidentiary rulings. Because we find no error in the district court’s

rulings, we AFFIRM Mr. Leonard’s conviction.

I. Background

At trial, the government presented eyewitness evidence that Mr. Leonard

had swerved from the southbound lane into the northbound lane and that Ms.

Sankadota swerved to the southbound lane to avoid Mr. Leonard’s car. The

vehicles collided head-on when Mr. Leonard returned to the southbound lane. At

the time of the accident, Mr. Leonard was driving without a license. Blood tests

conducted shortly after the accident revealed that Mr. Leonard had consumed

Xanax, Valium, Soma, marijuana, and alcohol.

To prove the malice aforethought element of second degree murder, the

government introduced evidence of Mr. Leonard’s driving record. Prior to trial,

Mr. Leonard filed a motion in limine, arguing that admitting his driving record

violated Federal Rules of Evidence 403 and 404(b). The district court overruled

Mr. Leonard’s objections, finding that the driving record was admissible to prove

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malice aforethought, a required element of second degree murder. At trial, Mike

Bailey, a hearing officer supervisor with the Oklahoma Department of Public

Safety, testified that Mr. Leonard last had a valid driver’s license in April 1988.

Mr. Bailey further testified that Mr. Leonard had received approximately fifteen

citations since April 1988. Of the fifteen citations, nine were for driving with a

suspended license, two were for failing to appear for traffic citation hearings, and

two were for moving violations. Of the two moving violations, one was for

illegal lane use, a citation which “is usually associated with a motor vehicle

accident.” Trial Tr. 243-44.

The government also presented evidence about Mr. Leonard’s history of

prescription drug use and the side effects of the medications. A pharmacist from

Anadarko, Oklahoma testified that he had filled prescriptions for Mr. Leonard

since at least 2001. The pharmacist testified that he distributed Xanax and

Valium to Mr. Leonard. During the pharmacist’s testimony, the government

admitted a report of Mr. Leonard’s prescription drug history as well as a

prescription drug label from November 2003, five months after the accident. The

pharmacist testified that the warnings on the label were identical to the warnings

that would have been on the label for the prescriptions filled immediately before

the accident in June 2003. The pharmacist also testified that he placed warnings

on the prescription bottles, filled both before and after the accident, that read:

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“May cause drowsiness. Alcohol could intensify this effect. Use caution when

operating a car or dangerous machinery.” Id. at 334.

Although the jury acquitted Mr. Leonard of the two counts of second

degree murder, it convicted him of two counts of involuntary manslaughter. He

was also found guilty of assault resulting in serious bodily injury. Mr. Leonard

now appeals his conviction, claiming that the district court erred in admitting into

evidence fifteen years of his driving record, two years of his prescription drug

records, and the November 2003 drug labels.

II. Discussion

A district court has broad discretion to determine the admissibility of

evidence, United States v. Talamante , 981 F.2d 1153, 1155 (10th Cir. 1992), and

we review the district court’s ruling for abuse of discretion, United States v. Tan ,

254 F.3d 1204, 1207 (10th Cir. 2001). “Under this standard, we will not disturb a

trial court’s decision unless we ‘ha[ve] a definite and firm conviction that the

[trial] court made a clear error of judgment or exceeded the bounds of permissible

choice in the circumstances.’” Talamante , 981 F.2d at 1155 (quoting United

States v. Ortiz , 804 F.2d 1161, 1164 n.2 (10th Cir. 1986) (alterations in original)).

A. Mr. Leonard’s driving record

The government claims that evidence of Mr. Leonard’s driving record was

properly offered under Federal Rule of Evidence Rule 404(b) to prove malice

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aforethought, a required element of second degree murder. Evidence of prior acts

is properly admitted if four requirements are satisfied:

(1) the evidence is offered for a proper purpose under Fed.R.Evid.
404(b); (2) the evidence is relevant under Fed.R.Evid. 401; (3) the
probative value of the evidence is not substantially outweighed by its
potential for unfair prejudice under Fed.R.Evid. 403; and (4) the
district court, upon request, instructs the jury to consider the
evidence only for the purpose for which it was admitted.

Tan , 254 F.3d at 1207-08 (citations omitted). Mr. Leonard claims that the

government failed to satisfy the second and third requirements. Mr. Leonard’s

driving record revealed fifteen citations over a fifteen-year period. Nine of those

citations were for driving with a suspended license. Mr. Leonard argues that

these citations are irrelevant to the issue of whether he acted with malice

aforethought. He also contends that even if the evidence was relevant, it was

overly prejudicial and should have been excluded under Rule 403.

Evidence is relevant under Rule 401 if it has “any tendency to make the

existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” Fed. R.

Evid. 401. Rule 401 is a liberal standard. United States v. McVeigh , 153 F.3d

1166, 1190 (10th Cir. 1998). The rule establishes only a minimal level of

probability—the evidence must render the asserted fact of consequence more

probable than it would be without the evidence. Id.

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 The government offered evidence of Mr. Leonard’s driving record to

establish malice aforethought. A defendant acts with malice aforethought when

he engages in “conduct which is reckless and wanton, and a gross deviation from

a reasonable standard of care, of such a nature that the jury is warranted in

inferring that [the] defendant was aware of a serious risk of death or serious

bodily harm.” United States v. Wood , 207 F.3d 1222, 1228 (10th Cir. 2000)

(internal quotation marks omitted). This element is therefore established if the

government shows the defendant “knew that his conduct posed a serious risk of

death or harm to himself or others, but did not care.” Tan , 254 F.3d at 1207.

This Court has held that drunk driving convictions are relevant and

admissible to prove malice aforethought in a second degree murder case. See id.

at 1210-11. In Tan , we acknowledged that someone “‘who drives a vehicle while

under the influence after having been convicted of that offense knows better than

most that his conduct is not only illegal, but entails a substantial risk of harm to

himself and others.’” Id. at 1210 (quoting People v. Brogna , 248 Cal. Rptr. 761,

766 (Cal. Ct. App. 1988)). Furthermore, based on the number of convictions, “the

jury could infer that Defendant does not care about the risk he poses to himself

and others since he continues to drink and drive.” Id. at 1210-11. We believe the

same logic applies to Mr. Leonard’s extensive record of driving violations.

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 Mr. Leonard attempts to distinguish this case from Tan by arguing that,

unlike drunk driving convictions, citations for driving with a suspended license

have no tendency to show that he disregarded a known risk that his conduct was

dangerous. Mr. Leonard’s argument, however, misses the point. Citations for

driving with a suspended license, like citations for drunk driving, convey to the

malefactor society’s considered view that the cited conduct is dangerous.

Admittedly, drunk driving is more likely to be dangerous than a single instance of

driving with a suspended license. But the requirement of having a license has a

serious purpose: to ensure that drivers meet all safety regulations and

qualifications. Persistent violations of this requirement betoken a conscious

disregard for these considerations. A jury may infer that an individual with a

record like Mr. Leonard’s “knows better than most” that his conduct is illegal and

unsafe, and continues to do so in defiance of that risk. This evidence tends to

show, even if only slightly, that Mr. Leonard acted with malice aforethought.

Accordingly, it is relevant under Rule 401.

Mr. Leonard also claims that some of the citations were not relevant

because they were remote in time. The district court permitted the government to

introduce fifteen years of Mr. Leonard’s driving record. We find no error in the

district court’s determination that this information was relevant. The fifteen-year

history demonstrated that over a course of many years Mr. Leonard has

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continuously ignored the government’s warnings that he should not drive without

a license. If the citations were remote in time and unrepresentative of his

behavior in recent years, his argument might have more force. But the evidence

in this case shows that Mr. Leonard’s dangerous history of driving without a

license is both longstanding and continuing.

Alternatively, Mr. Leonard argues that the district court should have

excluded the evidence under Rule 403. Federal Rule of Evidence 403 provides

that relevant evidence “may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.” Fed. R. Evid. 403. “‘Evidence is

unfairly prejudicial if it makes a conviction more likely because it provokes an

emotional response in the jury or otherwise tends to affect adversely the jury’s

attitude toward the defendant wholly apart from its judgment as to his guilt or

innocence of the crime charged.’” United States v. Rodriguez , 192 F.3d 946, 951

(10th Cir. 1999) (quoting United States v. Roberts , 88 F.3d 872, 880 (10th Cir.

1996)). Excluding otherwise admissible evidence under Rule 403 “is an

extraordinary remedy [that] should be used sparingly.” Id. at 949 (internal

quotation marks omitted).

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 Mr. Leonard contends that “[t]he jury was bound to be affected by the

driving record introduced by the government.” Appellant’s Opening Br. 14.

However, the jury acquitted Mr. Leonard of the second degree murder charge,

suggesting that evidence of Mr. Leonard’s driving record did not evoke an

emotional response and did not prejudice the jury. Furthermore, as compared to

drunk driving convictions that courts have admitted under Rule 403, Mr.

Leonard’s history of driving with a suspended license was not so likely to

provoke an emotional response that it should have been excluded. See Moorhead

v. State , 638 A.2d 52, 55 (Del. 1994); Brogna , 248 Cal. Rptr. at 767. The district

court therefore did not abuse its discretion in admitting evidence of Mr. Leonard’s

driving record.

B. Mr. Leonard’s prescription medication history

Mr. Leonard also claims that the district court should have ordered

redaction of the two-year old prescription medication history and the label from a

prescription filled in November 2003, five months after the accident. He claims

that the evidence was both irrelevant and unfairly prejudicial. We find no error in

the district court’s admission of the unredacted evidence.

Blood tested shortly after the accident revealed that Mr. Leonard had

consumed numerous prescription drugs, including Xanax and Valium. To

establish malice aforethought, the government offered testimony that Mr. Leonard

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was aware that one of the side effects of these medications is to cause drowsiness,

but that he disregarded that risk. The prescription records were introduced to

show that Mr. Leonard had been taking prescription drugs for a significant period

of time before the accident, making it more likely that he was aware of the side

effects. The records, even from two years before the accident, were therefore

relevant to Mr. Leonard’s mental state.

The government offered the prescription drug label from November 2003

because the pharmacist’s computer system could not retrieve labels from an

earlier date. The pharmacist testified that the warnings were identical to those on

the prescriptions Mr. Leonard received before the accident. The label was offered

to show the warnings affixed to the prescription bottles, not to show that Mr.

Leonard continued to take prescription medication after the accident. That the

labels contained warnings makes it more probable that Mr. Leonard knew there

was a substantial risk associated with driving while medicated, and that he

disregarded that risk. Accordingly, the drug label from November 2003 was also

relevant.

Mr. Leonard argues that admission of this evidence was unfairly prejudicial

under Rule 403 because it likely led to confusion of the issues. However, the

evidence was highly probative as to Mr. Leonard’s knowledge of the side effects

of the medication and Mr. Leonard has not explained how this evidence confused

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the issues. We do not understand why knowledge that Mr. Leonard’s drug use

was by prescription, and therefore lawful, would be prejudicial. The district court

has “considerable discretion in performing the Rule 403 balancing test,” Tan , 254

F.3d at 1211, and we discern no reason to disturb the district court’s conclusion.

III. Conclusion

For the foregoing reasons, we AFFIRM Mr. Leonard’s conviction.

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