_____________ No. 95-2830MN

_____________ United States of America, * * Appellee, * * v. * * Simon Frank Weise, * * Appellant. *

_____________ Appeals from the United States No. 95-3015MN District Court for the District

_____________ of Minnesota. United States of America, * * Appellant, * * v. * * Simon Frank Weise, * * Appellee. *

_____________ Submitted: March 12, 1996 Filed: July 10, 1996

_____________ Before FAGG, JOHN R. GIBSON, and WOLLMAN, Circuit Judges.

_____________ FAGG, Circuit Judge.

After a h eavy night of drinking on the Red Lake Indian Reservation, Simon Frank Weise fatally stabbed Alan Maxwell i n the chest with an eightinchbutcher knife. A jury convicted Weise of second-degree murder, see 18 U.S.C. § 1111(a) (1994), and Weise appeals. The Government cross

appeal s the district court's decision to sentence Weise below th e applicable guideline range.

### -2-

See 18 U.S.C. § 3553(b) (1994); U.S.S.G. § 5K2.0 (1994). We affirm Weise' s conviction, but reman d for further consideration of one sentencing issue.
Weise contends the police violated h is due process rights by failing to preserve critical evidence. See Arizona v. Y oungblood , 488 U.S. 51, 58 (1988). Specifically, Weise challenges the police's failure to give him a blood alcohol test. Weise also complains the police did not collect the empty beer cans at the crime scene, or record th e telephone call reporting th e stabbing. Contrary to Weise's view, the failure to preserv e potent iallyuseful evidence does not violate due process unless th e defendant can show th e police acted in bad faith. Id. In this case, the district court's finding that the police officer s did not act in bad faith is not clearly erroneous. The officers testified that Weise appeared to be in cont rol of his thoughts and actions at the time of his arrest

. Fur ther, the officers interviewed all of the witnesses to the stabbing , took several photographs of the crime scene, and did not know that th e telephone recording equipment was broken. In sum, we see no due process violation.

Weise also contends the district court abused its discretion b y allowing Maxwell's th irteen-year-old son to testify. According to Weise, the son's testimony w as irrelevant and unfairly prejudicial. See Fed. R. Evid. 401, 403. We d isagree. Although Maxwell's son did not witness the murde r, his testimony explained why and when Maxwell went to the hous e where the murder occurred. We cannot say the district court clearly abuse d its discretion in admitting this evidence. See United States v. Mitchell , 31 F.3d 6 28, 631 (8th Cir. 1994). Weise's contention that the distric t court abused its discretion by allowing Maxwell's brother and several othe r witnesses to testify about Maxwell's peaceful character is without merit. The Government properly offered this testimony t o rebut Weise's claim that Maxwell was the aggressor. Fed. R. Evid. 404(a)(2).

### -3- Weise next contends the prosecutor m ade an improper statement during final argument that encouraged the jury to consider the loss suffered by Maxwell's family. Inarguing against the logic of Weise's mistaken selfdefense theory, the p rosecutor stated, "[T]hat [stabbing] could happen to you and that could happen to me. It happened to Alan Maxwell, and, becaus e it ha ppened to Alan Maxwell, his son does not have a father today. Hi s brother is without a brother." Weise objected to this remark, but th e objection was overruled without any curative act ion by the district court. Even as suming the statement was improper, the prosecutor's unrepeate d remark simply told the jury the obvious consequences of Maxwell's death. Further, the Government produced strong evidence of Weise's guilt. In the conte xt of the entire trial, we do not believe the prosecutor's singl e remark was constitutionally prejudicial. See Un ited States v. McGuire , 45 F.3d 1177, 1189-90 (8th Cir.), cert. denied , 115 S. Ct. 2558 (1995).

Weise next contends the district court improperly instructed th e jury. First, Weise challenges the district court's instruction on th e le sser-included offense of voluntary manslaughter. Weise argues th e district court's inst ruction was incomplete because it failed to tell the jury that "voluntary manslaughter requires an intentional killing, unlike involuntarymanslaughter which involves an unintentional killing. " According to Weise, t he instruction created the possibility that he could be convicted of volun tary manslaughter "based on a conclusion that he was merely reckless or negligent." Assuming Weise's argument might be relevan t in a case where the jury must distinguish between the mental stat e requirements of volun tary and involuntary manslaughter, see United States

v. Pa ul , 37 F.3d 496, 499-500 (9th Cir. 1994), this is not that kind o f
case. Here, Weise does not challenge the district court's decision t o instruct the jury on first-degree murder and the lesser-included offenses of second-degree murd er and voluntary manslaughter, but not to submit the lesser offense of involuntary manslaughter. Thu s, for the purposes of the greater and lesser

### -4-

offenses submitted inthis case, the district court correctly stated that first-d egree murder is a killing with malice aforethought an d premeditation, second-degree murder is a killingwith malice aforethought, and voluntary manslaughter is a killing without the malice required fo r murder b ecause the killing occurs in a heat of passion. See 18 U.S.C

. §§ 1111(a), 1112(a) (1994); United States v. Bordeaux , 980 F.2d 534, 537 (8th Cir. 1992). Unlike Weise, we find no prejudicial error in th e district court's instruction.
Next, Weise challenges the district court's instruction that to ld the jury n ot to consider Weise's voluntary intoxication when deciding th e reasonableness of Wei se's self-defense claim. To succeed on his claim of self-defense, Weise needed to show he had reason able grounds to believe he
was in imminent danger of death or serious bodily injury. United States

v. Deon , 656 F.2d 354, 356 (8th Cir. 1981) (per curiam). Although the jur y may consider the circumstances confronting Weise, see id. , th e
reaso nableness of Weise's belief is not measured through the eyes of a reasonablyintoxicated person, see 1 Wayne R. LaFave & Austin W. Scott , Jr., Substantive Criminal Law § 4.10(d), at 558 (1986). We conclude the distri ct court properly told the jury to disregard Weise's intoxicatio n when deciding if Weise's belief of imminent peril was founded on reasonabl y perceived circumstances. See United States v. Yazzie , 660 F.2d 422, 431 (10th Cir. 1981), cert. denied , 455 U.S. 923 (1982).
Finally, Weise challenges the distri ct court's mistaken self-defense instruction. After reading the instructions to the jury, the distric t court in vited both parties to make any last-minute objections. I n response, Weise's counsel expressed concern "about the second element of the mi staken self-defense instruction because it appears to require a
reas onable perception of an imminent threat of death, [and] that ma y actually overstate th at, but [otherwise] no objection." This unrevealing objection neither explained how

### -5-

the secon d element overstated the law nor suggested a cure so the judg e could correct any potential defect in the mistaken self-defens e instruction. See United States v. Martin , 511 F.2d 148, 152 (8th Cir

. 1975). Thus, Weise's objection was simply a general objection tha t preserved nothing for appellate review. See Fed. R. Crim. P. 30; United States v. Bettelyoun , 16 F.3d 850, 852 (8th Cir. 1994). Later, during the jury's second day of deliberations, Weise's counsel again took aim at the second element of the mistaken self-defense instruction by tendering a letter and a revised proposed instruction to the district court. This tim e counsel put his cards on the table and asked to district court to modify its instruction by replacing the words "imminent danger of death or seriou s bodily harm" with the words "imminent danger of injury." Weise's argument
on appeal is based on this objection, which was neither placed of record
nor rule d on until after the jury returned its verdict. Althoug h sufficiently distinct, Weise's objection was untimely and the claimed erro r is not reviewable. See Fed. R. Crim. P. 30; United States v. Williams , 92 3 F.2d 76, 78 (8th Cir.) (per curiam), cert. denied , 502 U.S. 841 (1991)

. Additio nally, Weise suggests the district court's instruction did no t properly explain the theory of mistaken self-def ense. Weise did not raise this obje ction in the district court. In fact, at the jury instructio n conference when the district court decided to use its own mistaken selfdefense instruction instead of giving Weise's proposed instruction, Weise' s counsel stated, "I have no objection to the [district court's mistake n self-defense] instruction." We will not consider Weise's argumen t present ed for the first time on appeal. See United States v. Dixon , 5 1 F.3d 1376, 1383 (8th Cir. 1995). Because Weise's objections were no t properly preserved, w e review the challenged instruction for plain error, and finding no miscarriage of justice, no useful purpose would be served by an e xtended discussion. See United States v. Ryan , 41 F.3d 361, 36 6 (8th Cir. 1994) (en banc), cert. denied , 115 S. Ct. 1793 (1995).

### -6- Turning to Weise's sentence, Weise contends the district court should have decreased his offense level because he accepted responsibility for hi s offense. See U.S.S.G. § 3E1.1(a), (b)(1). Although Weise admitte d stabbing Maxwell, Weise has never accepted responsibility for second-degre e murder. To the contrary, Weise has consistently denied that he acted with malice aforethought. Thus, the district court properly denied Weise' s request for an acceptance of responsibility adju stment. See United States v. Makes Room For Them , 49 F.3d 410, 416 (8th Cir. 1995).

On c ross-appeal, the Government contends the district cour t improperly granted Weise's request for a downwar d departure under U.S.S.G. § 5K2.0. The distric t court may impose a sentence outside the applicable guideline range if th ere are mitigating circumstances "of a kind, or to a deg ree, not adequately taken into consideration by the Sentencin g Commission in formulating the guidelines." 18 U.S.C. § 3553(b) (1994); se e U.S.S.G
. § 5K2.0. Relying on United States v. Big Crow , 898 F.2d 1326 , 1331-3 2 (8th Cir. 1990), the district court decided "the difficul t condit ions on the Red Lake Reservation, [Weise's] record of stead y employ ment and his maintenance of family ties and responsibilities ar e sufficiently unique in degree to constitute grou nds for departure." Aside from r eservation life, the district court recognized that Weise's wor k record and family relationships were not otherwise unusual enough t o warrant departure. See U.S.S.G. §§ 5H1.5, 1.6. The district court also decided a departure was warranted because Weise's crime was a single act of aberrant behavior. See U.S.S.G. ch. 1, pt. A, intro. 4(d). We review the district court's decision to grant a downward departure for an abuse of discretion, Koon v. United States , No. 94-1664, 1996 WL 315800, at *8 (U. S. June 13, 1996), and the decision will "in most cases be du e substantial deference," id. . at *12. Departures must be limited, however, to those cases in which the defendant's "circumstances differ significantl y fromthe normal case." United States v. Garlich , 951 F.2d 161, 164 (8th Cir. 1991).

### -7- After we authorized a downward departure in Big Crowbased on th e de fendant's "excellent employment history, solid community ties, an d consistent efforts to lead a decent life in [the] difficult environment [o f the reservation]," Big Crow898 F.2d at 1332, our later cases recognized the departure authorized in Big Crow does not apply "where the defendant fail[ s] to show that he `struggled in a difficult environment like th e defendant in [ Big Crow ].'" United States v. Haversat , 22 F.3d 790, 79 5 (8thCir. 1994) (quoting Garlich , 951 F.2d at 164), cert. denied , 116 S. Ct. 671 (1995); Unite d States v. One Star , 9 F.3d 60, 61 (8th Cir. 1993). In other wor ds, it is one thing when a defendant merely lives on a reservation where life may be difficult for some and not for others, but it is telling when a defendant personally experiences and overcomes th e hardships of reservation life.
Although Weise mentioned some diffic ulties of reservation life (high unemployment, "adverse" living conditions, and violence on the reservation ) in a position paper he filed before sentencing, Weise neither provide d det ails nor made clear that he struggled against these difficulties an d that his accomplishments stand out because he su cceeded. See Haversat , 22 F.3d at 795; One Star , 9 F.3d at 61. Indeed, th e presentence report shows that despite Weise's parents' problems with stea dy employment and alcohol, Weise' s family upbringing was good, Weise's parents always provided fo r their children's necessities, and there was never any physical or sexual abuse in the family. Even though the record pro vides some support for the district court's general understanding of living conditions on th e reservation, we cannot tell what there was about the impact of reservation life on Weise that ma kes his case "different from the ordinary case where the factor[s] [of ste ady employment and stable family ties are] present." Ko on , 1996 WL 315800 at *10. In short, we simply do not have enoug h inform ation to review the district court's exercise of its sentencin g discretion. Thus, we must remand this sentencin g question to the district court for "a refined assessment" of the departure decision

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on an expanded record. Id. at *12.
Turning to the other ground for the district court's departure, w e disagree with the dis trict court's view that Weise's criminal conduct was aberrant behavior. The district court relied on the opinions of Weise's psychologist and lay witnesses that Weise "was not prone to violence. " Contrary to the district court's view, aberrant behavior "must be more tha n merelysomething `out of character.'" United States v. Carey , 895 F.2 d 318 , 325 (7th Cir. 1990). Instead, a single act of aberrant behavio r contemplates a "`spon taneous and seemingly thoughtless [act].'" Garlich , 951 F.2d at 164 (quot ed case omitted). Here, Weise's conduct was neither spontaneous nor thoughtless. Unprovoked, Weise got up from the table wher e Maxwell was seated, walked across the room, sele cted an eight-inch butcher knife, returned to the table, and then stabbed M axwell twice in the chest. In these circumstances, Weise's conduct was not a single act of aberrant behavior.
Accordingly, we remand for further consideration of the § 5K2. 0 senten cing issue; otherwise, the judgment of the district court i s affirmed.

JOHN R. GIBSON, Circu it Judge, concurring in part and dissenting in part.
While I concur with the decision of the court today rejecting W eise's claims on appeal, I respectfully dissent from the decision reversing the downward departure under U.S.S.G. § 5K2.0.

The cou rt today states Weise makes no showing that he struggled i n
a difficult environment or otherwise overcame some significant hardship. It elevat es our language in United States v. Haversat , 22 F.3d 790 (8t h Cir. 1994), cert. denied , 116 S. Ct. 671

### United States v. Big Crow , 898 F.2d 1326 (8th Cir. 1990). 1


### -9- (199 5), to create a more stringent burden for a Big Crow departure. I t 1 then holds Weise offered only some evidence, but did not provide th e connecting link of sh owing how the conditions on the reservation affected him so as to make his case extraordinary. In do ing so, the court fails to give p roper consideration to the statute prohibiting limitation of th e information district courts may use in sentencing, and fails to give the district court's ruling the deference it is entitled to.
The Supreme Court has in recent days clarified the deference that is due a decision of a district judge to depart downward from a guidelin e sentence. Koon v. United States , Nos. 94-1664, 94-8842, 1996 WL 31580 0 (U.S. June 13, 1996). After stating that such a decision may be owed no deferenc e when there has been a mathematical error in applying th e guidelines, the Court said:

A dist rict court's decision to depart from th e Guidel ines, by contrast, will in most cases be du e substantial deference, for it embodies the traditiona l exercise of discretion by a sentencing court.

Id. at *12. In considering whether the case falls outside the heartland of cases in the guidelines, the Court continued:

Whethe r a given factor is present to a degree no t adequa telyconsidered by the Commission, or whether a di scouraged factor nonetheless justifies departur e because it is present in some unusual o r exceptional way, are mat ters determined in large part by comparison wit h the f acts of other Guidelines cases. District court s have an inst itutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines cases than appellate court s do.

Id. The Court continued:

### -10- "To ignore the district court's special competence--about the `ordinariness' or `unusualness' of a particular case- -would risk depriving the Sentencing Commission of a n important source of information, namely , the reactions of the trial judge to the fact-specific ci rcumstances of the case. . . ."

Id. ( quoting United S tates v. Rivera , 994 F.2d 942, 951 (1st Cir. 1993)).

The district court specifically enumerated examples of Weise' s efforts: that he hadmaintained employment over the last five and a half years, and that he wa s a good parent to his own children and the children of his companion. The district court stated that while these facts may no t appear striking, "considering the difficult conditions on the Red Lak e Reservation, defendant's record of steady employment and his maintenance of family ties and responsibilities are sufficiently unique in degree to constitute grounds for departure."

The court 's decisive point is that, while it finds some support for the district court's understanding of living conditions on the Red Lak e Indian Reservation, it cannot tell what there was about this that makes th e impact of reservationlife on Weise different from the ordinary case, and argue s that it does not have enough information to review the distric t court's exercise of its discretion. In doing so, the court simply fails to acco rd the deference Koon requires, or to consider the informatio n before the district judge upon which he made his findings.

Th e presentence investigation report adopted by the district cour t stated that when Weise was growing up, "alcohol abuse and solid employment were issues [Weise's] family constantly struggle d with as do many families
on the re servation today." Weise filed a position paper before th e sent encing, which makes factual assertions about high unemployment an d oth er "adverse" living conditions on the Red Lake Reservation. Weise' s counsel also

### -11-

attached copies of judgments in the cases of other Red Lake Reservatio n inhabitants who commi tted homicides; significantly, the district judge in this cas e was the judge in two of those other Red Lake homicide cases

. Counsel also submitted the report of Dr. Cronin, a psychologist, who state d tha t Weise was fearful because of violence on the reservation. A t sentencing, counsel m ade a formal proffer of the testimony of Chief Judge Graves, who was familiar with Weise's case and w ith crimes on the Red Lake Reservation, and who would have stated that within the spectrum of homicid e defendants and homicide incidents in that violent community, Weise falls at the low end, both of the individuals convicted of the offenses an d taking into account the circumstances of the offense itself. At trial , Weise introduced testimony of community members of his peaceable character

.

It is significant that counsel for the United States made n o objections to these statements of Weise's counse l at sentencing. Further, the Un ited States's responses to Weise's position paper on sentencing , while expressing generalized opposition to a downward departure and arguin g that no atypical factor or combination of factors had been shown that woul d justify the departure, made no objection to any of the specific statements in Weise's position paper. The government failed to object to th e statements in Weise's position paper on sentencing, to statements made by counsel at sentencing, or to the district court's factual findings. See United St ates v. Sneath , 557 F.2d 149, 150 (8th Cir. 1977) (becaus e defendant did not deny statements in the presentence reports that he had lied to the FBI, he could not assert that he was deprived of an opportunit y to rebut them). The government's failure to object should preclude it fro m raising this issue.

The district court's statement that it recognized the difficul t conditions on the res ervation and that it was a violent place considering its small population are statements of the court's acquaintance with the conditions on the reservation. We

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have in the past affirmed a downward departure based, in part, on a simila r assessment of the har dships of reservation life and a defendant's unusual efforts to lead a productive life there. The district court in Unite d States v. Big Crow , 898 F.2d 1326, 1331 (8th Cir . 1990), departed downward
on the grounds that the defendant had consistently struggled to overcome the "difficult conditions which the court knows exist[] in Indian country, " a finding not unlike that before us in this case

. Accord United States v. One Star , 9 F.3d 60, 61 (8th Cir. 1993). Where the findings of th e district judge demonstrate knowledge of the cond itions on the reservation,
we should not require production of evidence on this issue absent objectio n by one of the parties.

This cour t in United States v. White Buffalo , 10 F.3d 575 (8th Cir. 1993), distinguished Big Crowand One Star . In White Buffalo , the court stated that a downward departure could not be justified under U.S.S.G

. § 5K 2.0, pointing to the distinction that White Buffalo supported n o dependents and presented no evidence of his standing in the community. Id

. at 577 . Similarly, in Haversat , 22 F.3d at 795-86, the defendant, a corpor ate president, was awarded a downward departure based on hi s assistance to the cou rt, his good character and otherwise exemplary life, and the coercive economic influence of his business competitor. W e reversed, distinguishing Big Crow . While we stated in Haversat that the district court failed to point to any evidence in the record to show how Haversat struggled in a difficult environment or otherwise overcame some hardsh ip, this statement has significance primarily in pointing to th e fac tual distinction, rather than an insufficiency in the evidence. Th e factual distinctions between this case on the one hand, and White Buffalo and Haversat on the other, render White Buffalo and Haversat inapposit e here.
Moreover, it is most significant tha t Koon requires a greater degree of deference than evidently was employed in Haversat and White Buffalo

.

### -13- The recor d in this case is adequate to support the district court's findings. See generally United States v. Wise , 976 F.2d 393 (8th Cir

. 1992) (en banc) (in sentencing proceedings district court may consider a wider array of eviden ce than would be admissible at trial), cert. denied , 113 S. Ct. 1592 (1993).
Congress has made clear in 18 U.S.C. § 3661 (1994):

No li mitation shall be placed on the informatio n concerning the background, character, and conduct of a person convicted of an offense which a court of th e United States may receive and consider for the purpose of imposing an appropriate sentence.

This language is paraphrased in U.S.S.G. § 1B1.4, which states that, i n determining whether a departure from the guideline range is warranted, "th e
cour t may consider, without limitation, any information concerning th e ba ckground, character and conduct of the defendant, unless otherwis e prohibited by law." It was just this kind of information the distric t court considered in making its findings in this case.

The court, in commenting on Weise's upbringing, simply does no t add ress the substance of the district court's findings. Certainly, it s discussion fails to accord the district court's findings the substantial deference to which they are entitled, due to the institutional advantage the district courts possess in dealing with such issues. See Koon , 1996 WL 315800 at *11.

It suf fices to say that the court today departs from the closin g words o f the Supreme Court in Koon where, after pointing to the goal o f reducing disparities in sentencing, the Court states: This t oo must be remembered, however. It has bee n uniformand constant in the federal judicial traditio n for t he sentencing judge to consider every convicte d person as anindividual and every case as a unique study

### -14- in the human failings that sometimes mitigate, sometimes magnif y, the crime andthe punishment to ensue. We do not understand it to have been the congressional purpose to wi thdraw all sentencing discretion from the United States District Judge. Discretion is reserved within the Sentencing Guidelines, and reflected by the standard of app ellate review we adopt.

Id. at *21.

I would affirm the sentence as well as the conviction.

A true copy.

Attest:

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