                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 98-2430
                                  ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        *   Appeal from the United States
      v.                                *   District Court for the
                                        *   District of South Dakota.
Anthony George Iron Cloud, Sr.,         *
                                        *
            Appellant.                  *

                                  ___________

                             Submitted: December 15, 1998

                                  Filed: March 19, 1999
                                   ___________

Before MCMILLIAN, LAY and HALL,1 Circuit Judges.
                           ___________


LAY, Circuit Judge.


     Anthony George Iron Cloud, Sr. was convicted by a jury of involuntary
manslaughter under 18 U.S.C. §§ 1153 and 1112. He appeals the district court’s




      1
       The Honorable Cynthia H. Hall, United States Circuit Judge for the Ninth
Circuit, sitting by designation.
decision to admit into evidence the results of a portable breath test (“PBT”) claiming
that its admission deprived him of a fair trial. We reverse and remand for a new trial.

                                       I. FACTS

        At 9:30 p.m. on January 19, 1997, Anthony Iron Cloud gave a friend a ride to
his home in the Evergreen housing area of Pine Ridge Reservation. According to
Iron Cloud, he had consumed six beers over the course of six hours.2 When Iron
Cloud reached the housing area, he saw a pedestrian, Abel Iron Rope, walking along
the right-hand side of the road. According to Iron Cloud, he pulled over to the left
to avoid the pedestrian. He then turned to look at his passenger and hit Iron Rope.
It is undisputed that Iron Cloud never applied his brakes and was driving 15 miles per
hour in a 10 mile per hour zone before the accident occurred.

       Abel Iron Rope had an extensive history of mental illness and was
characterized by his family as a danger to himself and to the community. Iron Rope
also had a history of jumping in front of cars. In 1993, he jumped in front of a
propane truck on the highway causing the truck to careen into a ditch. Furthermore,
a police officer testified that at approximately 4:00 p.m. on January 19, 1997, the day
of the accident, Iron Rope ran out directly in front of his patrol car and the officer was
barely able to avoid hitting him.


      2
        The exact amount of alcohol that Iron Cloud had consumed is a matter of
dispute. Iron Cloud contends that he had six beers. Based upon the various tests
given to Iron Cloud after the accident, including the PBT, the government contended
that Iron Cloud drank eleven beers during that time period. There was also disputed
evidence that Iron Cloud had been smoking marijuana. This information was
obtained by a blood test taken five hours after the accident. The government’s expert
testified that Iron Cloud smoked marijuana within the time period of one hour before
the crash to when the blood was taken. Iron Cloud contends that he had not smoked
marijuana for two days before the accident.

                                           -2-
       After the accident, Iron Cloud and his friend checked on Iron Rope, who was
sitting up and nodded when asked if he was fine. Iron Cloud left the scene of the
accident, went home, and asked his wife to call 911.3 The police arrived shortly
thereafter. Twenty-five minutes after the accident, Tribal Officer Twiss administered
a portable breath test (“PBT”) which indicated a blood-alcohol level of .14 percent.
Iron Cloud was arrested and approximately one hour after the accident he was given
an intoxilyzer breath test which registered his blood-alcohol level as .11 percent.
Five hours after the crash, a blood test was taken and registered .033 percent. Abel
Iron Rope subsequently died as a result of the accident.

       Iron Cloud was charged with involuntary manslaughter under 18 U.S.C. §§
1153 and 1112 for operating his motor vehicle in a grossly negligent manner. Iron
Cloud filed a motion in limine to exclude the PBT as evidence of anything more than
a screening test used to determine probable cause for arrest. The district court
overruled the motion without an evidentiary hearing. At trial, the government’s
witness was allowed to calculate a blood-alcohol level reading based on a
hypothetical question which included the PBT and the other tests performed on Iron
Cloud. The expert concluded that Iron Cloud’s blood-alcohol level at the time of the
accident was .13 or .14 percent.4 At the conclusion of the trial, the district court gave
a limiting jury instruction which provided that the PBT should not be considered in
isolation, but could be considered with the other tests as proof of intoxication. The
jury found Iron Cloud guilty and he was sentenced to 21 months imprisonment and
three years supervised release. Iron Cloud appeals the admission of the PBT as
substantive proof of his intoxication.


      3
       Iron Cloud claims that he left the scene because he was afraid of being
attacked by bystanders and went straight home to call 911.
      4
       Without using the PBT evidence, Iron Cloud’s expert testified that his blood-
alcohol level would have been .07 to .09 percent. The government contends that even
without the PBT his blood-alcohol level would still be over .10 percent.

                                          -3-
                                  II. DISCUSSION

Admissibility of the PBT

       In United States v. Black Cloud, 101 F.3d 1258 (8th Cir. 1996), this court set
forth a two part test to determine when scientific testimony is admissible. First, the
district court must “determine whether the testimony is based on reliable scientific
technique, and whether it will assist the jury.” Black Cloud, 101 F.3d at 1261
(citation omitted). In its determination, the district court should consider the
following factors when assessing the reliability of a scientific technique: “(1) whether
the technique can be and has been tested; (2) whether the technique has been
subjected to peer review and publication; (3) the known or potential rate of error for
the technique and the existence and maintenance of standards for controlling the
technique’s operation; and (4) whether the technique is generally accepted in the
scientific community.” Id. (citing Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 593-95 (1993)). Second, even if the district court concludes that the
expert testimony is admissible, it “may exclude the testimony if the testimony has an
unfairly prejudicial effect that substantially outweighs its probative value.” Id.
(citations omitted).

       The district court in this case did not follow either of these steps. The court
refused to hold a Daubert hearing to determine the reliability of the test, stating
before the jury: “[the] PBT test does not require a Daubert hearing. The PBT test is
a test which has been recognized in the scientific community and as such, Daubert
is not appropriate.” Tr. at 43. Neither did the court analyze whether the test would
be unfairly prejudicial. We review a district court’s decision to admit evidence for
an abuse of discretion. Black Cloud, 101 F.3d at 1261.



                                          -4-
       By denying Iron Cloud’s request for a Daubert hearing on the reliability of the
PBT, the judge took the accuracy of the PBTs for granted and he ignored established
procedure. Contrary to the court’s statements concerning the reliability of the PBT,
the PBT has not been established as reliable. PBTs are used in the field for screening
purposes. The government’s expert witness, Roger Mathison, agreed that the PBT
was only a preliminary screening test. Tr. at 197-199. Furthermore, almost every
state that has addressed the issue has refused to admit the results of the test for
purposes other than probable cause.5 Although the admissibility of evidence is


      5
        See also Boyd v. City of Montgomery, 472 So.2d 694, 697 (Ala. Crim. App.
1985) (holding that preliminary breath tests are only admissible to establish probable
cause); Patrick v. State, 750 S.W.2d 391, 394 (Ark. 1988) (stating that PBT’s are
admissible only on behalf of the defendant because they are unreliable); Attix v.
Voshell, 579 A.2d 1125, 1129 (Del. Super. Ct. 1989) (holding that the PBT can be
admitted only for probable cause and not for substantial evidence because no court
has established that it is reliable); State v. Zell, 491 N.W.2d 196, 197 (Iowa Ct. App.
1992) (stating, “[t]he results of the preliminary screening test are inadmissible
because the test is inherently unreliable and may register an inaccurate percentage of
alcohol present in the breath, and may also be inaccurate as to the presence or absence
of any alcohol at all”); People v. Keskinen, 441 N.W.2d 79, 82 (Mich. Ct. App. 1989)
(holding that court erred in admitting evidence of the defendant’s preliminary breath
test); Justice v. Director of Revenue, 890 S.W.2d 728, 731 (Mo. Ct. App. 1995)
(stating that PBTs are not admissible by statute); State v. Strizich, 952 P.2d 1365,
1371 (Mont. 1997) (holding that the PBT is intended only for determining probable
cause); State v. Klingelhoefer, 382 N.W.2d 366, 369-70 (Neb. 1986) (holding that
preliminary test is only relevant for limited purpose of establishing probable cause);
City of Fargo v. Ruether, 490 N.W.2d 481, 482-83 (N.D. 1992) (holding that an
alcohol screening test cannot be admitted if a defendant admits probable cause);
Commonwealth v. Stanley, 629 A.2d 940, 942 (Pa. Super. Ct. 1993) (stating that PBT
results are inadmissible); Jones v. Town of Marion, 1999 WL 7682, 2 (Va. Ct. App.
1999) (citing to state statute which provides that preliminary breath tests are only to
be used in determining probable cause); Thompson v. State Dept. of Licensing, 960
P.2d 475, 477 (Wash. Ct. App. 1998) (holding that “the results of a portable breath
test are not admissible as evidence at trial or to establish probable cause for arrest”);
State v. Beaver, 512 N.W.2d 254, 358-59 (Wis. Ct. App. 1994) (PBT not admitted).

                                          -5-
governed by federal standards,6 in the face of this overwhelming case law as to the
limited reliability of the PBT, we conclude, without further foundation being laid, that
the PBT is not reliable as anything more than a screening test to be used for probable
cause.

       We are not persuaded by the government’s argument that the district court was
correct in admitting the results of the PBT test without a Daubert hearing because the
technology has been in use for an extended period of time. The mere fact that a test
has been used for a long time does not make it reliable. The same argument could be
made for polygraph tests, which clearly are not admissible in this circuit. See United
States v. Williams, 95 F.3d 723 (8th Cir. 1996); Connor v. Auger, 595 F.2d 407 (8th
Cir. 1979).

      Finally, we hold the error was not cured by the judge’s limiting jury instruction.
Jury Instruction No. 12 stated as follows:

      The Court has permitted the introduction of evidence of a portable
      breath test (PBT) taken of the defendant. You are instructed that a PBT
      test is not recognized, standing alone, as proof of intoxication. It may
      be considered, however, together with the tests of the blood, breath
      (intoxilyzer) and other evidence pointing to the question of whether the
      defendant was under the influence of alcohol at the time of the event for
      which the defendant stands charged.

As we have discussed, the PBT should not be used for anything other than probable
cause determinations. This instruction simply makes matters worse by instructing the


Compare State v. Huettl, 379 N.W.2d 298, 305 (S.D. 1985) (holding that PBT results
were inadmissible because of state implied consent statues); State v. Anderson, 359
N.W.2d 887 (S.D. 1984) (holding that because the PBT is a field sobriety test for
establishing probable cause, the results are not admissible against a defendant.).
      6
       United States v. McMillan, 820 F.2d 251, 255 (8th Cir. 1987).

                                          -6-
jury that they can consider the PBT as substantive evidence, albeit in conjunction
with other evidence.

Harmless Error

       This court has held that “[e]videntiary rule violations ‘which do not affect [a
defendant’s] constitutional rights are subject to Fed. R. Crim. P. 52(a) harmless error
analysis.’” United States v. DeAngelo, 13 F.3d 1228, 1233 (8th Cir. 1994). Under
this court’s interpretation of Fed. R. Crim. P. 52(a), “[a]n error is harmless if the
reviewing court, after reviewing the entire record, determines that no substantial
rights of the defendant were affected, and that the error did not influence or had only
a very slight influence on the verdict.” United States v. Wilcox, 50 F.3d 600, 603 (8th
Cir. 1995) (citation omitted). We will reverse the conviction “only if the jury may
have been substantially swayed by improperly-admitted evidence. . . .” Id. (citations
omitted).

       Iron Cloud was accused of involuntary manslaughter under 18 U.S.C. § 1153
and 1112. The indictment was based upon the allegation that Iron Cloud operated his
motor vehicle in a “grossly negligent manner” with actual knowledge that his conduct
was a threat to the lives of others or with actual knowledge that would reasonably
enable him to foresee the danger to others. The government sought to prove this
allegation primarily by showing that Iron Cloud was intoxicated, and heavily relied
on the PBT results to do so. We find that the jury may have been improperly
influenced by this admitted evidence.

       The admission of the PBT results becomes significant considering the
government’s primary contentions. The government used the PBT results in two
ways. First, the government used the results to establish that Iron Cloud was
intoxicated. Without the PBT results, Iron Cloud might have successfully disputed
the level of his intoxication. The PBT was taken only 25 minutes after the accident

                                         -7-
and registered a blood-alcohol level of .14 percent, well over the legal limit. Without
that level, as the defense expert testified, based on the blood-alcohol reading of Iron
Cloud taken some five hours after the accident, Iron Cloud’s blood-alcohol level at
the time of the accident could have been argued to be between .7 and .8 percent,
which is under the legal limit. In giving this opinion, Dr. Robert Looyenga, a chemist
who was employed for twenty-five years at South Dakota School of Mines &
Technology, assumed the rate of elimination was somewhere between .011 and.015.7

       The experts disagreed on the reliability of the intoxilyzer test. The defense
counsel challenged the accuracy of both the PBT and the intoxilyzer tests. The
intoxilyzer test is measured from the use of the breath, not the blood, so a ratio must
be applied to get the results in the form of the blood-alcohol level. The defense
contended that this ratio can lead to inaccuracies. The government’s expert conceded
on cross-examination that the blood test was the most reliable of the three tests and
that the intoxilyzer test brought many variables into play.8 Of course, the government

      7
        There was a disagreement between the experts as to the proper rate of
elimination to be used in this case. The experts agree that the average person’s rate
is .015. Dr. Looyenga stated that the vast majority of people have rates of elimination
between .01 and .02, and it is just as accurate to use the lower rate as it is to use the
upper rate in computing a blood-alcohol level. The government’s expert, Mr.
Mathison, however, used the elimination rate of .019 to arrive at a blood-alcohol level
of .13 at the time of the accident. This rate of elimination was determined using the
results from the intoxilyzer and the blood test taken five hours after the accident. On
cross-examination, Mr. Mathison admitted that if the elimination rate was determined
using the PBT and the intoxilyzer, it would be .06, which is an unrealistic rate.
      8
          Dr. Mathison testified:

      Q. Okay. Again, because of the variance, because you are not actually
      taking blood and measuring it, now you’ve got another variance in there.
      You are trying to transfer information taken from a breath test into a
      blood content and you have to apply an arbitrary ratio, arbitrary only in
      the sense that it varies individual to individual?

                                          -8-
disputed the challenges to the intoxilyzer’s accuracy.9 It was obviously for the jury
to determine the credibility of the conflicting opinions of the two experts. Our
primary concern, however, is whether the admission of the PBT test, which showed
that Iron Cloud had a much higher alcohol content, bolstered the reliability of the
intoxilyzer test and, therefore, influenced the jury in accepting the testimony of the
government expert over the testimony of the defense. We cannot be sure that the PBT
did not substantially sway the jury in this manner.

       The admission of the PBT to prove intoxication is also important considering
the circumstances surrounding the accident. It is undisputed that Abel Iron Rope had
mental instabilities and had run out in front of cars on at least two previous occasions.
In fact, he ran in front of a police officer’s car earlier in the afternoon on the day of
the accident in question and was nearly hit. Without the PBT to support the theory



      A. Yes, that’s correct.

      Q. There can be, again, a range of inaccuracy up to 10 percent on that,
      isn’t that right?

      A. That’s correct.

      Q. In addition to that, if the machine is not calibrated properly and
      regularly, then the intoxilyzer test can be off because of erroneous
      calibration?

      A. Certainly is possible with the use of the intoxilyzer the calibration
      is checked before and after the actual breath test is –

Tr. at 202-03.
      9
        As we pointed out in McMillan, the variables associated with the intoxilyzer
breath test go to the weight and not the admissibility of the tests. McMillan, 820 F.3d
at 255.

                                          -9-
that Iron Cloud was intoxicated, it is possible the jury could have found that the
accident occurred because Abel Iron Rope ran in front of Iron Cloud’s car.

       Second, the government used the PBT results to undermine the veracity of the
defendant. Iron Cloud testified that he drank only six beers that day. According to
the government’s expert’s testimony, however, Iron Cloud would have had to
consume at least eleven beers within that time period to have a blood-alcohol level
of .13 or .14, the level derived by considering the PBT. Without the PBT results, Iron
Cloud’s blood-alcohol level could have been as low as .07 or .08 at the time of the
accident. As a result, Iron Cloud’s testimony would have been consistent with the
evidence of the lower blood-alcohol level and his credibility would not have been so
easily challenged.

      We cannot say that the jury was not greatly influenced by the high blood-
alcohol level registered through the PBT shortly after the accident, either as proof of
the defendant’s intoxication or of his lack of credibility. Therefore, admitting the
PBT results was not harmless error.

                                   III. CONCLUSION

       For the foregoing reasons, the judgment of the district court is reversed and the
case is remanded to the district court for a new trial.

HALL, Circuit Judge, concurring in part and dissenting.

      I agree with the majority that the district court erred by admitting into evidence
the PBT results. However, because I believe that the admission of the PBT results
had only a slight influence on the jury’s verdict, I believe that the district court’s error
was harmless. Therefore, I dissent.



                                           -10-
       “This circuit has established that conviction of involuntary manslaughter
requires proof that a defendant acted grossly negligent in that he acted with a wanton
or reckless disregard for human life, knowing that his conduct was a threat to the lives
of others or having knowledge of such circumstances as could enable him to foresee
the peril to which his act might subject others.” United States v. F.D.L., 836 F.2d
1113, 1118 (8th Cir. 1988). The evidence presented at trial showed that Iron Cloud
was under the influence of alcohol and marijuana while speeding at night through a
residential neighborhood on the wrong side of the road and that, immediately after
seeing Able Iron Rope walking along the side of the road, Iron Cloud took his eyes
off the road to carry on a conversation with his passenger and ran over Iron Rope.

       Independent of the PBT results, the government introduced the results of an
intoxilyzer test,10 administered less than one hour after the accident, indicating that
Iron Cloud’s blood-alcohol content was 0.11. In addition, the government introduced
the results of a gas chromatography test11 that, when taken together with the results
of the intoxilyzer test, indicated that Iron Cloud’s blood alcohol content at the time
of the accident was 0.13. Even Iron Cloud introduced evidence showing that his
blood alcohol content at the time of the accident was between 0.07 and 0.09. The
government’s expert testified that Iron Cloud’s ability to drive safely would have
been significantly impaired at a blood alcohol concentration of 0.08. In addition to
the evidence of Iron Cloud’s blood alcohol concentration, the government introduced
evidence showing that Iron Cloud had been smoking marijuana shortly before the
accident. The government’s expert testified that the marijuana would have


      10
        The Supreme Court has determined that the intoxilyzer test is an accurate and
reliable method of measuring blood-alcohol concentration. See California v.
Trombetta, 467 U.S. 479, 489 (1984).
      11
        The Supreme Court stated that the gas chromatography test is highly accurate
in identifying the presence of alcohol and drugs in a subject’s blood. Skinner v.
Railway Labor Executives’ Ass’n, 489 U.S. 602, 610 n.3 (1989).

                                         -11-
aggravated any impairment from which Iron Cloud was suffering due to the alcohol.
Therefore, the jury could have inferred that, even at a blood alcohol content as low
as 0.07, Iron Cloud’s ability to drive safely was more significantly impaired as a
result of the marijuana.

       In addition to the empirical evidence of Iron Cloud’s impaired ability to drive,
the government showed that, instead of staying to help Iron Rope, Iron Cloud fled the
scene of the accident and returned home. Although Iron Cloud claims to have told
his wife to call 911, he testified that he did not know whether she ever made that call.
When the police arrived at Iron Cloud’s house, his wife met them at the door and told
them Iron Cloud was asleep. However, when Iron Cloud came out of his bedroom,
the police noticed that he did not look like he had been sleeping, but instead appeared
nervous and intoxicated.12

       Under these circumstances, I believe that the evidence shows overwhelmingly
that Iron Cloud knew that his actions were a threat to Iron Rope’s life, and that
despite this knowledge Iron Cloud acted in wanton disregard of Iron Rope’s life.
Based on the overwhelming evidence demonstrating that Iron Cloud was grossly
negligent in running over Iron Rope, I believe that the PBT result had “only a very
slight influence on the verdict,” and that its admission was therefore harmless error.
See United States v. Wilcox, 50 F.3d 600, 603 (8th Cir. 1995) (citation omitted).

      The majority suggests that Iron Cloud should be absolved of guilt because Iron
Rope may have jumped in front of Iron Cloud’s truck. I cannot agree because if Iron
Cloud had not been drinking and smoking marijuana before driving, and had not been

      12
        The majority suggests that the admission of the PBT results caused the jury
to question Iron Cloud’s credibility with respect to his testimony that he drank only
six beers instead of the 11 or 12 to which the government’s witness testified.
However, I believe that Iron Cloud’s evasive behavior following the accident gave
the jury adequate reason to question Iron Cloud’s testimony.

                                         -12-
speeding and ignoring the road while he was driving, he could have avoided Iron
Rope, even if Iron Rope did jump in front of Iron Cloud’s truck.13 Therefore, I
believe that Iron Cloud’s operation of his truck in this manner was grossly negligent,
despite the possibility that Iron Rope jumped in front of Iron Cloud’s truck.

       Based on the foregoing, I believe that the judgment against Iron Cloud should
be affirmed.

      A true copy.

             Attest:

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




      13
        The two drivers who testified about their encounters with Iron Rope were
both able to avoid hitting him. In addition, I note that, because Iron Cloud was
looking at his passenger instead of the road, and because his passenger was seated to
his right, Iron Cloud was looking in the direction from which Iron Rope allegedly
jumped. However, Iron Cloud never even saw Iron Rope until after he had driven
completely over him. I believe that Iron Cloud’s wanton inattention to the road,
knowing that he was in a residential neighborhood and knowing that a pedestrian was
walking on the side of the road, coupled with the darkness of night, the excessive
speed at which he was driving, and the drug-induced impairment of his ability to
drive constitutes gross negligence.

                                        -13-
