The Honorable Patrick A. Conmy, United States District Judge for the District 1 of North Dakota. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-2789

___________ United States of America, * * Appellee, * * v. * Appeal from the United States * District Court for the Samuel Russell LaFountain, also * District of North Dakota known as Sam Enno, * * [UNPUBLISHED] Appellant. *

___________ Submitted: January 7, 1999 Filed: January 21, 1999

___________ Before McMILLIAN, RICHARD S. ARNOLD, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ PER CURIAM. Samuel Russell LaFountain, a Native American, appeal s from the final judgment entere din the District Court for the District of North Dakota upon a jury verdic t 1 finding him guilty of involuntary manslaughter, in violation of 18 U.S.C. §§ 1112 and 1153. The district court sentenced appellant to 21 months imprisonment and threeMiranda v. Arizona , 384 U.S. 436 (1966). 2 -2- years sup ervised release. For reversal, appellant argues the district court erred i n finding th at he voluntarily waived his Miranda rights and abused its discretion i n 2 excluding evidence. For the reasons discussed below, we affirm the judgment of the district court.
Bri efly, the evidence presented at a two-day trial showed the following. O n Nove mber

18, 1997, around 9:30 p.m., a pick-up truck driven by appellant wa s followin g Clarence Davis & s eastbound vehicle on North Dakota State Highway 5

. Appell ant was speeding up and then slowing down, and he was blinking the truck & s lights on an d off. As the truck passed Davis in the westbound lane, it struck a n oncoming car driven by Farrah Reopelle. Reope lle testified that she was driving in the westbou ndlane when headlights were turned on directly in front of her “four to fiv e car lengths” ahead in her lane and that the truck w as “going pretty fast.” After striking the driver & s side of Reopelle’s vehicle, the truck proceeded east on the highwa y approximately 505 feet. A second vehicle driv en by Fu Kong Yun (Yun) then collided with the truck. There was conflicting evidence whether appellant & s truck had came to a compl ete stop when struck by Yun. Yun testified that the truck was about 30 fee t away in his lane (westbound) with no lights on when he fir st saw it, and that “he would nothave hit” th e truck if it had not been not in his lane. Bureau of Indian Affair s officer Arlyn Vivier

and accident reconstructionist Mark Decoteau each testified that, at the ti me of impact, Yun had crossed the centerline of the road and a portion o f appellant & s truck was across the ce nterline. The passenger in Yun’s vehicle, Qu Hong Yan (Qu) , later died from injuries sustained in the accident. After the collisions , appellant was found in a ditch and was heard to ask if he had killed anyone.
Invest igators found open and empty cans of beer in appellant & s truck an d scattered around the accident scene. Officer Vivier testified that he could smell alcohol on a ppellant & s breath, and the result of appellant’s blood test showed a blood alcohol-3-

content of .17%. Over appellant & s objection, FBI Agent Carl Florez testified that during a December 12 interview, appellant told him that on the day of the accident, he had been drinking at various locations and “that on a scale of 1 to 10, 10 bein g extremely drunk,” appellant said that “he was probably an 8.” Appellant also stated that h e did “not remember driving the vehicle at the time of the accident. ” Additionally, during cross-exam ination of Yun, appellant attempted to elicit testimony fr om Yun about a conversation Yun allegedly had had with Qu & s brother regardin g mone tary damages. The government objected--on hearsay grounds--and the distric t court sus tained the objection. Later, during cross-examination of Florez, appellan t atte mptedto question Florez about an argument he had witnessed in Qu & s hospita l room between Qu & s fam

ily and Yun after Florez was called to the hospital by security officers; the government objected, this time on relevance gro unds, and the district court sustained this objection

. The jury returned a guilty verdict. This appeal followed. Ap pellant first argues that the district court erred in finding he had voluntaril y waived his Miranda

rights d uring the interview with Agent Florez and in admitting his statemen t. Under the totality of the circumstances, we hold that the district court correctly found that appellant & s waiver was voluntary. See United States v. Byrne , 83 F. 3d984, 989 (8th Cir. 1996) (reviewing de novo ultimate determination of whethe r defendantv oluntarily made statements). Like the district court, we note that th e state ment was cumulative, in any event, to other evidence of appellant & s intoxication, inclu ding his blood alcohol test results; the open and empty beer cans found in th e truck and at the accident site; and Vivier & s testimony that he could smell alcohol o n appellant & s breath. Second, appellant argues that the district court a bused its discretion in excluding testimony concerning Yun & s alleged offer of money to Qu & s brother and a confrontation between Qu & s family and Yun, testimony appellant sought to introduce to show that-4-

Yun & s negli gence caused the accident. Even assuming the district court abused it s discretion, we hold that any error was harmless because the jury heard testimony which showed Yun & s potential negligence--Yun had crossed the centerline at the moment of impact--and there was substantial eviden ce showing appellant & s gross negligence, e.g., he had been driving without his lights on, he had been changing speeds, and he ha d been d riving “pretty fast” on the wrong side of the road; he hit another car before the collision with Yun; his blood alcohol test results indicated he was over the legal limit; there were open and empty beer cans in the truck and at the accident site; and hi s breat h smelled of alcohol. See United States v. McCrady , 774 F.2d 868, 874 (8th Cir.1985) (“An error is harmless if the reviewingcourt, after viewing the entire record, de termines that no substantial rights of the defendant were affected . . . and that th e error did not influence or had only a very slight influence on the verdict.” (cited cases omitted)). Accordingly, the judgment of the district court is affirmed. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.