                        United States Court of Appeals
                                FOR THE EIGHTH CIRCUIT
                                    ___________

                                   No. 96-3749
                                   ___________
United States of America,                 *
                                          *
              Plaintiff - Appellee,       *
                                          *   Appeal from the United States
     v.                                   *   District Court for the Southern
                                          *   District of Iowa.
David Dean Millard; Julia Lynn            *
Millard,                                  *
                                          *
              Defendants-                 *
Appellants.
                                    ___________

                            Submitted:   April 14, 1997
                                            Filed: March 30, 1998
                                    ___________

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.




      1
       David Millard was also found guilty on two counts of the use of a
communication facility to distribute methamphetamine, in violation of 21 U.S.C. §
843(b) (1994), and was sentenced to two ninety-six month sentences to run
concurrently with his life sentence.
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.




                                   -2-
                                                         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 (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




         2
       Rule 52(b) states, "Plain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the court."

                                                        -3-
(citing United States v. Young, 470 U.S. 1, 15 (1985) (quoting United States v. Atkinson, 297 U.S. 157, 160
(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 (citing Young, 470 U.S. at 17, 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. "[T]he discretion conferred
by Rule 52(b) should be




         3
        The Court in Olano stated that "[t]here may be a special category of forfeited
errors that can be corrected regardless of their effect on the outcome, but this issue
need not be addressed. Nor need we address those errors that should be presumed
prejudicial if the defendant cannot make a specific showing of prejudice. Normally,
although perhaps not in every case, the defendant must make a specific showing of
prejudice to satisfy the 'affecting substantial rights' prong of Rule 52(b)." Id. at 735.

                                                          -4-
employed 'in those circumstances in which a miscarriage of justice would otherwise result.'" Id. at 736 (quoting
Young, 470 U.S. at 15 (quoting United States v. Frady, 456 U.S. 152, 163, n. 14 (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 (quoting Atkinson, 297 U.S.
at 160). 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




                                                        -5-
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.




                                                       -6-
      In addition, the prior drug convictions are not relevant to any of the
admissible purposes allowed under Federal Rule of Evidence 404(b). Rule
404(b) provides that evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show that the
person acted in conformity with his character.         It may, however, be
admissible for other purposes, such as demonstrating proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.     See Fed. R. Evid. 404(b).      The Millards' prior
convictions appear to be relevant only to prove the Millards had the
propensity to distribute drugs and are of criminal character -- a use
specifically prohibited by Rule 404(b). See United States v. Garbett, 867
F.2d 1132, 1135 (8th Cir. 1989); United States v. Mejia-Uribe, 75 F.3d 395,
398 (8th Cir.), cert. denied, 117 S.Ct. 151 (1996); Fed. R. Evid. 404(b).
The district court erred in admitting the Millards' prior convictions.

                                    B.

      The Millards also contend that the district court erred in admitting
statements the Millards made in the course of plea discussions.

      Evidence of statements made in the course of plea discussions with an
attorney for the government is not admissible against the defendant who
participated in the plea discussions. Fed. R. Crim. P. 11(e)(6)(D). Rule
11, by preventing the admission of plea discussions, promotes active plea
negotiations and encourages candid plea discussions between the parties.
See Rachlin v. United States, 723 F.2d 1373, 1376 (8th Cir. 1983).




                                   -7-
      Here, Agent Hein4 testified regarding the plea discussions between
himself, the Millards, and Assistant United States Attorney Lester Paff.
Hein first testified about discussions that occurred shortly after
authorities had searched the Millards' residence. Hein told David that if
they were convicted of methamphetamine distribution, they would both receive
automatic life sentences because they each had two prior felony convictions.
Hein told David that the government would offer him a deal if he would
cooperate. Hein testified:

      So I said to Dave that what we would be willing to offer himself
      a life charge, and we would give Julia a state charge, which
      meant that Julia wouldn't take a life charge and that I was
      concerned about who was going to be with the children, if down
      the line they were to be arrested for dealing methamphetamine and
      they both got convicted, they were automatically going to get a
      life charge. What we were trying to offer them was a way to not
      have to do that, and he responded to me on that.

      Q.     Did he respond to that?

      A.     Yes, he did.

      Q.     And what did he tell you?




      4
        Although Fed. R. Crim. P. 11(e)(6)(D) refers to statements between the
defendant and an "attorney" for the government, we conclude the discussions between
the Millards and Agent Hein, although not a government attorney, fall under Rule
11(e)(6). Agent Hein represented to the Millards that he was working directly with
Assistant United States Attorney Lester Paff. Hein testified, "I told him [David] that
I was interested in his cooperation and that I had talked to Lester Paff prior to coming
out here and that if he was interested in cooperating with the government, that we
would offer him a particular deal." Furthermore, during the course of these
conversations, Hein telephoned Paff and discussed with Paff what deal they could offer
the Millards. See United States v. Grant, 622 F.2d 308, 313 (8th Cir. 1980).

                                          -8-
      A.    He told me, "Give me the state charge.     She can take the life
charge."

      Next, Hein addressed Julia, and told her the government was interested
in her cooperation in exchange for a lesser sentence. Julia and David then
spoke to each other. Hein testified about this conversation:

     She said, "What do you think?" And he didn't say a whole lot,
     and he said he didn't want to take a life charge is what he said,
     but he was interested in cooperating, but he wasn't going to take
     a life charge, and he wanted to know what was the best that the
     government would offer him, and I said "I have no idea. I'm
     going to have to talk to the Assistant United States Attorney."

      The plea discussions continued with David the next day. Hein also
testified about these discussions explaining that David continued to
cooperate with authorities:

     The very next thing that he did was he came into our office and
     met with us, and we discussed the cooperation, and Mr. Paff was
     there for this particular discussion. We talked about what we
     were willing to offer him and showed him what the guideline
     ranges would be, what a conspiracy count would come out to based
     on a lot of different factors. One of the factors was the amount
     of methamphetamine that he had sold, and I believe that we came
     to a 20-year figure, which could be cooperated down from that
     point, and that Julia would still take a state charge, which
     means, state charge is probably, my best guess would be around
     ten years, but she may only have to serve about half of that.

     Q.    And did, then, Mr. Millard agree to make some phone calls for you?

     A.    Yes, he did.




                                     -9-
      Hein's testimony then discussed the assistance David provided the
ongoing investigation. Hein testified that David Millard eventually stopped
cooperating. In all, Hein's testimony concerning the plea discussions and
David's cooperation spanned twelve pages of trial transcript.

      Courts have long recognized that plea bargaining is essential to the
functioning of the criminal justice system. See Santobello v. New York, 404
U.S. 257, 260 (1971); United States v. Penta, 898 F.2d 815, 816-17 (1st Cir.
1990); United States v. Brooks, 536 F.2d 1137, 1139 (6th Cir. 1976). We
agree with the Fifth Circuit that:

        If, as the Supreme Court said in Santobello, plea bargaining is
        an essential component of justice and, properly administered, is
        to be encouraged, it is immediately apparent that no defendant
        or his counsel will pursue such an effort if the remarks uttered
        during the course of it are to be admitted in evidence as proof
        of guilt. Moreover, it is inherently unfair for the government
        to engage in such activity, only to use it as a weapon against
        the defendant when negotiations fail.

United States v. Ross, 493 F.2d 771, 775 (5th Cir. 1974).

      Once negotiations failed, the government used the plea discussions
against the Millards. Rule 11(e)(6) specifically forbids this.

        Similar to the prior conviction evidence, the government argues the introduction of the plea discussions was
not error because Julia Millard's counsel "invited the error" by discussing the plea discussions in his opening
statement. Again, the invited error doctrine does not apply. The Assistant United States Attorney stated in his
opening statement that David Millard, upon being asked by authorities if the Millards would like to cooperate,
named his source as Douglas Jackson. Any response by Julia Millard's




                                                     -10-
counsel was prompted by the prosecution's initial statement. Her counsel did not "invite the
error." The district court erred in admitting this evidence.

                                                         C.

        Finally, the Millards argue that the district court erred in admitting evidence of drug trafficking activity
outside the scope of the alleged conspiracy. After reviewing the record, we find this argument without merit.


                                                         D.

      Thus, we have concluded the district court erred in admitting evidence of the Millards' prior
convictions and evidence of the plea bargaining discussions.

        As discussed above, the second limitation on appellate authority under Rule 52(b) is that the error be plain
or, equivalently, clear or obvious. See Olano, 507 U.S. at 734. Our discussions above make clear that the
evidentiary errors are clear under current law.

         We now must address the third limitation--whether the plain forfeited error affected substantial rights. See
id. As stated earlier, this "means that the error must have been prejudicial: It must have affected the outcome of the
district court proceeding." Id.

      The evidence of the Millards' prior convictions may have caused the
jury to infer that because the Millards were involved in drug trafficking
in the past, they were involved in drug trafficking on this occasion. In
addition, the improperly admitted plea discussions could have caused the
jury to infer that the Millards were guilty, as




                                                      -11-
innocent parties probably do not immediately discuss a plea and then
cooperate with authorities. Also, David's request to Agent Hein that he
receive the state charge rather than Julia likely caused the jury to look
unfavorably upon David. In addition, the statement may have caused the jury
to infer that both David and Julia were guilty since David was willing to
subject himself and Julia to imprisonment.

      To determine if the improperly admitted evidence affected the Millards'
substantial rights, we must examine the entire record and consider the
evidentiary errors in conjunction with the other evidence presented against
the Millards. See Young, 470 U.S. at 16; United States v. Guy, 456 F.2d
1157, 1164 (8th Cir. 1972); Mejia-Uribe, 75 F.3d at 399.


      With respect to David Millard, Craig Simmons and Tim Krueger both testified that they obtained
methamphetamine directly from David Millard. Similarly, Doug Jackson testified that he delivered quantities of
methamphetamine directly to David Millard. The testimony of these witnesses, as well as that of Chad Bowans, is
substantial evidence of David Millard's direct participation in methamphetamine distribution. Under these
circumstances, we cannot conclude the errors affected David Millard's substantial rights--that they affected the
outcome of the district court proceedings. With David, our analysis stops at this point. The plain error in admitting
the evidence is not a basis for reversing his conviction.

      However, the evidence of Julia's direct participation is far less than the evidence of David's participation.
There is no physical evidence linking Julia to methamphetamine distribution.
The government discovered no methamphetamine when searching the Millards'
home.    The only pieces of physical evidence tying the Millards to
methamphetamine distribution were the broken scales found in the attic. Tim
Krueger testified that he had given these scales to David to weigh
methamphetamine.




                                                      -12-
Krueger also testified that David told him that Alan Millard, his son, had
broken the scales because he was upset that David was dealing
methamphetamine.

        In addition, nearly all of the witness testimony directly implicated
David, but not Julia, in distributing methamphetamine. Chad Bowans paid Buddy Krejci
$1,800 for methamphetamine. Bowans testified that later that day he received a call from David Millard, whom he
had never dealt with before, regarding the amount of the payment. Bowans had never met David or Julia Millard.

        Buddy Krejci testified that he delivered the $1,800 he collected from Bowans to David Millard in the
Millards' basement. David counted the money and became upset. The two then went upstairs, where Julia was
present, and David and Julia talked about how to contact Bowans to find out where the rest of the money was located.
Buddy testified that Officer Hein and two other law enforcement officers discussed with Buddy the importance of
tying Julia into the conspiracy.

        Tim Krueger testified that he first started receiving methamphetamine from the Millards in 1994. When
questioned about a specific transaction, Krueger testified that David handed him the methamphetamine at the
Millards' house and that Julia witnessed the transaction. Krueger testified that he never received methamphetamine
from Julia, but that he did pay Julia three or four times over the entire period he dealt with the Millards. When asked
if he talked with Julia about what the money was for, he said, "She knew what I owed and what I owed it for."
Krueger testified that she knew this because she would see David give him the methamphetamine. Krueger testified
about a recorded conversation at the Millards' home in which he and Julia discussed David's telephone call to Chad
Bowans concerning the underpayment. David, who was sleeping at the time, woke up and the three further discussed
the call. At one point,




                                                      -13-
Julia interrupted David to correct him. Krueger's testimony in all other respects centered on his methamphetamine
dealings with David.

        Krueger testified that he started dealing methamphetamine because "Dave asked me to help him get rid of
some for him . . . and he knew I could get rid of a bunch quick." At that point, David asked Krueger to go to the
basement and showed him approximately one pound of methamphetamine. Krueger testified that he sold the
methamphetamine primarily to Chad Bowans. He stated that Bowans and David would often disagree on the correct
weight of the methamphetamine. To clear up any discrepancies in weight, he borrowed Bowans's measuring scales
and gave the scales to David because "he needed something to weigh it up on." In a taped conversation between
Bowans and Krueger before Krueger was apprehended, Krueger repeatedly referred to David Millard when discussing
methamphetamine, but never referred to Julia. At one point he stated, "With Dave, it's all
about making money and staying out of prison." Krueger testified that he and
David would exchange drugs and money in the basement of the house, where
Julia normally was not present. Furthermore, Krueger testified that he
delivered the $10,450 in marked bills to David. In cooperating with officials, Krueger,
like Buddy, was instructed to try to gather information tying both David and Julia into the drug conspiracy.

        Craig Simmons testified that he began receiving methamphetamine from the Millards in 1994. He was
asked, "Were there times when you would receive methamphetamine from Julia Millard?"; and "[W]ould there be
times that you would give money to Julia Millard?"; and "[W]as it clear to you that they were both working together
and selling methamphetamine?" He answered yes. Thereafter, like Krueger, Simmons discussed his
methamphetamine dealings as occurring with David.




                                                     -14-
        Simmons testified about a recorded phone call in which he and David discussed Simmons providing David
with an ounce of methamphetamine. Simmons testified that he subsequently delivered the methamphetamine to
David. After the transaction, Doug Jackson informed Simmons that David had been arrested and that David owed
Jackson money for drugs. Simmons further testified that he saw David cut up a pound of methamphetamine to put
in baggies for distribution. He also stated that Doug Jackson distributed a couple of pounds of methamphetamine
to David every seven to ten days.

      Doug Jackson testified that he supplied David with methamphetamine,
that David was a regular customer, and that David would pay him for the
methamphetamine. Jackson testified that he never dealt directly with Julia.

      Finally, Agent Mark Hein was present at the Millards' home when agents
discovered the $10,450 in marked bills. Hein testified that Julia showed him
where the money was, but that she told him David had given her the money.

         As demonstrated above, the evidence against Julia Millard was substantially weaker than the evidence
against David. Julia's direct participation in methamphetamine distribution is supported only by "yes" answers Craig
Simmons gave in response to leading questions. The remainder of Simmons's testimony dealt exclusively with David
Millard. Tim Krueger testified that he never obtained methamphetamine from Julia, but that he did deliver money
to her three or four times. Her knowledge of what the money was for and Julia's observations of David distributing
methamphetamine were the extent of Krueger's direct evidence against Julia Millard. Krueger described his
conversation with Julia concerning David's telephone conversation with Chad Bowans. However, the evidence was
clear that David called Bowans from a pay phone, where Julia was not present. Most evidently,




                                                     -15-
Julia's discussion of the phone call came from what she was told, presumably by David. Furthermore, Krueger stated
that most of the time Julia was not in the basement when David and Krueger exchanged money and drugs.

          Certainly, the evidence demonstrated that Julia had knowledge of David's drug activity, but the evidence as
to her actual participation was quite limited. While her conviction was of conspiracy to distribute methamphetamine,
rather than substantive acts, the issue is the relationship between the evidence admitted through plain error and the
evidence as a whole. Considering the evidence described above, we conclude the plain error in admitting the earlier
convictions and the guilty plea conversations affected the outcome of Julia Millard's trial.

        Under Olano, having determined that the forfeited errors are plain and affect Julia's substantial rights, we
have the power to reverse, but are not required to do so. See Olano, 507 U.S. at 736. We should exercise that
discretion in those circumstances in which a miscarriage of justice would otherwise result. Id. The inquiry revolves
around whether the error "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. Id.
The improperly admitted convictions and plea discussions were telling and damaging evidence pointing to Julia
Millard's guilt and should not have been considered for this purpose. In this case, with Julia's conviction leading to
a life sentence, we conclude the plain errors seriously affected the fairness and integrity of her trial. We
therefore reverse Julia Millard's conviction and remand for a new trial.

                                                         II.

      Next, the Millards contend the district court erred in sentencing.
Because we have reversed Julia Millard's conviction, we address only David
Millard's sentencing arguments.




                                                      -16-
      21 U.S.C. § 841(b)(1)(A) provides that "[i]f any person commits a
violation of this subparagraph . . . after two or more prior convictions for
a felony drug offense have become final, such person shall be sentenced to
a mandatory term of life imprisonment without release . . . ." The district
court concluded that David Millard had two prior drug felony convictions and
accordingly sentenced David Millard to life imprisonment.

      David argues that, under United States v. Pazzanese, 982 F.2d 251 (8th
Cir. 1992), his 1980 conviction is not a prior felony drug offense. On April
22, 1980, David pled guilty in Iowa District Court to sponsoring a gathering
with the knowledge that a controlled substance would be distributed, used,
or possessed at the gathering. In Pazzanese, the district court imposed a
mandatory minimum sentence because the defendant had a prior felony
conviction for criminal facilitation. On appeal, we held that the criminal
facilitation charge was not a felony drug offense because the New York
criminal facilitation charge was not limited to the regulation of drugs and
required no specific intent to commit a drug crime. See Pazzanese, 982 F.2d
at 253-54. David argues that the Iowa statute he was convicted under did not
require the government to prove that he had the mental culpability to commit
the underlying substantive offense of distribution of a controlled substance.

     The Iowa statute under which David was convicted states:

     It is unlawful for any person to sponsor, promote, or aid, or
     assist in the sponsoring or promoting of a meeting, gathering or
     assemblage with the knowledge or intent that a controlled
     substance be there distributed, used or possessed, in violation
     of this chapter.

Iowa Code § 204.407 (1979).




                                   -17-
      Thus, David pled guilty to sponsoring a gathering with the knowledge
or intent that a controlled substance would be distributed. The statute
specifically requires that the act is committed with knowledge or intent.
Because the Iowa statute contains an element of mental culpability directly
related to a drug crime, we hold that this conviction is a prior felony under
21 U.S.C. § 841(b)(1)(A). See United States v. Henderson-Durand, 985 F.2d
970, 975 n.8 (8th Cir. 1993). In addition, section 204.407 specifically
regulates activities involving controlled substances, further distinguishing
this statute from the statute in Pazzanese, which did not specifically
prohibit or restrict drug activity. See Pazzanese, 982 F.2d at 254.

      Next, David argues that both convictions were the result of one ongoing
conspiracy. Therefore, his 1990 conviction for delivery of cocaine should
merge with the present charge, forming a single criminal episode, and his
1990 conviction should not constitute a separate prior felony drug offense.
If two convictions result from acts forming a single criminal episode, they
should be treated as a single conviction for sentencing enhancement under
section 841(b)(1)(A). See United States v. Rice, 43 F.3d 601, 605-06 (11th
Cir. 1995).

      David bases his argument on the fact that Doug Jackson was his source
of cocaine leading to his 1990 conviction and his source of methamphetamine
leading to his current conviction. David further argues that the people
involved in the 1990 cocaine distribution network were the same people
involved in the methamphetamine conspiracy.

      There is no merit in David's argument.      David's cocaine conviction
occurred in 1990. David's current conviction was based on acts occurring
from December 1992 through March 1, 1995. In addition, David served prison
time in between the 1990 conviction and the conduct leading up to the current
conviction. Furthermore, the




                                   -18-
convictions involved the distribution of different substances, cocaine and
methamphetamine. The district court did not err in finding that the 1990
conviction was a separate criminal episode from the methamphetamine
conviction.

                                           III.

      Finally, the Millards argue that they received ineffective assistance
of counsel.     Once again, because Julia Millard's conviction has been
reversed, we address only David Millard's argument.            Generally, an
ineffective assistance of counsel claim is "not cognizable on direct appeal."
United States v. Jennings, 12 F.3d 836, 840 (8th Cir. 1994). Instead, such
a claim is properly raised in a 28 U.S.C. § 2255 action.         See id.   An
exception to this rule has been recognized where the district court has
developed a record on the issue. See id. Because the district court did not
develop a record as to ineffective assistance of counsel, we do not address
this claim.

      For the reasons stated above, we affirm David Millard's conviction and
the sentence imposed, and we reverse Julia Millard's conviction and remand
for a new trial.

     A true copy.

             Attest:

                    CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          -19-
