United States v. Ricky Lee Sands
899 F.2d 912
10th Cir.
1990
Check Treatment

*1 Group “right held a of first refusal” Moreover, petitioners advance America,

remarket. UNITED STATES Mi- reason to believe that James and little Plaintiff-Appellee, guard to ensure chael would have stood money joint venture saved at the SANDS, Ricky Lee Group. expense of the Communications Defendant-Appellant. savings Group’s pass on the failure repurchased computer to JV# com- No. 88-2514. opposite conclusion. pels Appeals, United States Court argue, respect next Petitioners Tenth Circuit. only, that the Tax Court erred JV# March calculating expected pretax profit by in ef- $150,000implementation deducting fect place in the

fee twice. Petitioners failed to the Tax indication

record before implementation fee fi-

of how the Accordingly, the

nanced. 87 T.C. at 909. simply deducted the amount of the court also de-

fee its calculations. The $30,811.51 payments promis- on a

ducted

sory note executed December

The record indicated neither the principal

nor the amount of note. On argue

appeal, petitioners for the first time payments represented annual in-

that these promissory

stallments on the note implementation

which the fee was financed. petitioners this basis claim error.

On they rely

Petitioners concede that cannot alleged promissory appeal

on the note on 10(e). Fed.R.App.P. They

under invite this together piece

court to bits of “circumstan-

tial evidence” to infer the existence of this

document, and then to conclude failing

Tax Court erred divine unexplained payments. their

intent argument entirely unpersuasive.

Their

The Tax Court’s conclusions were reason- it, of the record

able basis before must stand on that basis.

AFFIRMED. Greubel, Federal Public

Stephen J. Asst. Defender, Tulsa, Okl., defendant-appel- lant. Atty., Sperling, Asst. U.S.

Sheldon J. (Roger Hilfiger, Atty., Muskogee, Okl. U.S. *2 conversation, as the car Shortly after brief), plaintiff-appel- on the him driveway pulled into the down and slowed lee. pulled out passengers, Sands two of the of SEYMOUR, and McKAY, Before right first on his and shot Mauldin gun a MOORE, Judges. Circuit then, opened door as the and Mauldin side out, in Sands roll his back. started to and Judge. SEYMOUR, Circuit passengers to start driv- one of the ordered Sands, a trial, Ricky Lee After a stalled, it Sands away. When ing the car in Indian, convicted was American Native to the around of the car and walked got out for the District States United the Testimony indi- lay. Mauldin where back in of murder of Oklahoma District Eastern in the face kicked Mauldin that Sands cated of 18 U.S.C. in violation degree first the Id. four more times. him three or shot and (1988).1 (1988) lili and 18 U.S.C. § § 40. at in trial for a new filed a motion Sands trial, first the the start Before a denied that he was he contended which in Li- Motion granted Sands’ district prejudicial of admission by trial the fair in- from prevent to the Government mine mo- court denied The district evidence. convictions, prior troducing evidence of his We reverse. tion. testify. himself did not long as Sands 12, 1987, evening December of theOn in a mistrial ultimately ended That trial on Indi- Mauldin John shot and killed Sands agree upon a unable to was when to the hours For several an land. a half. The day after a and verdict Mauldin, of Sands, four and shooting, it was divided the court that told “riding around” been cousins had Sands’ premeditation.4 issue II, rec., at 26. vol. car. See Mauldin’s stipu- began. Sands trial then A second time, a considera- drank Sands During this he trial that beginning of the at the lated rum.2 and some of beer quantity ble Rec., II, vol. killed John Mauldin. and shot a small shared cousins three female Sands’ was that homicide defense at 4. Sands’ not beer, did but Mauldin amount of but was instead premeditated 17, 126, 234-35. at and anything. Id. drink most, or, volun- at self-defense product of Sands, evening, during the one At manslaughter. tary seat, sud- passenger front was in the who convic- prior criminal issue of Sands’ The Maul- pointed it at gun, a denly pulled out to arose, agreed and the Government 27, 96, tions head, it.” at “clicked Id. and din’s “mention its witnesses advise apolo- attempted to then and 240.3 in the had been that defendant fact Mauldin, Mauldin refused gize to It Rec., vol. penitentiary.” him that and told accept apology alleg- second trial during this house.” was get to the fight when “[w]e first in. came The edly prejudical material 61, 216, 251. 120; id. at at see also testimony completely contra- by Sands’ guilty possession a pled Barbara also 1. Defendant of threats: previ- the other evidence dicts firearm which felon convicted ously transported commerce what, in interstate anything, if "Q: heWhen clicked 922(g)(1), U.S.C. §§ violation in 924(a)(1)(B) (1988). say Ricky John Mauldin? at issue on This is not just anything He say to him. He didn’t A: appeal. his head. held it on very un- Sands drank beer Just how much between Q. conversation Was there 2. testimony that There is from the record. clear this incident? about two of them afternoon, drinking id. No, time.” A. buy store to people drove to a five Rec., and when the 28. thirty- beer, anywhere bought from twelve degree mur- on first Id. at 17 was instructed of beer. 4.The six cans der, of sec- included offenses and on lesser murder, manslaugh- voluntary pointing the ond that while contends The dissent voluntary instructed head, also was to kill ter. Sands threatened gun at Mauldin’s spe- a negate the existence Only car. intoxication the others victim both the testified, intent. cific however. the four witnesses one of Sperling: “Mr. Just a minute. Just at issue here was made Irene statement cousins, minute.” one Sands’ question from the Government: Again a motion for Sands made “Q: right. During All time Sperling Mr. a mistrial. The court asked *3 Ricky where has you have known he had told the witness not to whether of the time? he lived most any prior criminal convictions. Mr. refer to County “A: He around Okfuskee lived had, Sperling responded that he but that he Tulsa, [sic], and went to awhile exactly when he did so. Id. could recall Broken Arrow.” prison, to The court that the wit- observed any- saying ness had been cut off before added). Rec., At (emphasis at 310 The thing, and denied the mistrial motion. testimony, close of Irene Sands’ Sands the murder, degree was instructed on first for a mistrial. moved murder, degree voluntary second man- The initial to the state- court’s slaughter. to find It took five hours ment one of shock: was guilty of first murder. the “I don’t even understand argues that the district court erred question. Why you the ask the you by denying talked with ... for mistrial and for tion? motions [H]ad they could your Specifically, witnesses and told them trial. Sands contends new not ever mention the fact that the defen- required that a trial is it is not new because penitentiary? dant had been in possible “say certainty to with reasonable the ‘had

that reference to records very slight the effect on the verdict of I heard I almost fell answer]. [the ” States, jury.’ v. 360 Sumrall United the floor. couldn’t believe 311, (10th Cir.1966); F.2d 314 see also Kot trial, that —here are in the second 750, States, 764, v. 328 teakos United U.S. you by asking take a chance 1239, 1247, (1946); 66 S.Ct. 90 L.Ed. 1557 question.” 1354, Walton, v. 552 F.2d United States Nevertheless, judge Id. at 325-26. the 959, (10th Cir.), denied, 1366 cert. 431 U.S. stated that “the fact that the defendant has (stan 2685, (1977) 97 53 L.Ed.2d 277 S.Ct. not, my penitentiary been to the does dard is whether the statement could “have mind, intent,” 339, affect and he id. any appreciable effect on the action of making ruling, denied the motion. In its jury”); Woodring, the v. 446 United States prosecu- the court also concluded that the 733, (10th Cir.1971) (same). In F.2d 737 purposely specific tor had not elicited response, argues that be Government response, “vague that the answer had been in cautionary cause Sands did not seek a nature,” passing and that the evi- guilt struction and because evidence of his up dence to that had been “over- strong, required. a new trial is not was whelming.” Id. Sands then declined disagree We Government. give cautionary offer court’s instruction. support position, In of its the Govern Heath, ment cites v. 580 in- United States problems with this inadmissible (10th Cir.1978), denied, F.2d 1011 cert. 439 very next wit- formation continued with the 850, ness, Smith, 42 99 59 L.Ed.2d Ed an Under Sheriff in Ok- U.S. S.Ct. (1979). non-examining attorney al County. began to discuss There a fuskee Smith on the stand. legedly Sands’ criminal record when he was cut off coached a witness Sperling, the attor- that it Sheldon Government We held ney: have been best to strike the re- “would “Q: you that conversa- As best recall fully mark made as irrelevant and

tion tell the what it brief- ignore it.... admonish the [A] ly involved. for a mistrial is not the belated motion accepted procedure in this Circuit follow- Well, recently released “A: ing such an incident.” out of— Cir.1965), cautionary (10th that a instruc- v. Ea- 1018; States also United see to cure the error Cir.1973) is not sufficient (10th tion 102, 107-08 ton, F.2d likely a suffi- is to make where the error in this required cir- (the proper procedure impression on ciently strong strike, admonish make a motion is to cuit disregard it. See also will be unable witnesses jury, and warn F.2d Murray, remarks). United States prejudicial volunteer Cir.1986) under (6th (cautionary instruction and Eaton from Heath This case differs “very close to an such circumstances First, motions for respects. in several bell”). unring a instruction to here were “belated” made mistrial just made Heath; initial motion also The Government contends testimony, and the later Irene Sands’ “the sheer volume of after where *4 witness ut- the next immediately great after as to one the defendant was against so of—” statement. “released out comment insignificant tered an isolated make emphasized that the Second, before, we in Heath prison the de- regard inci- there “did not preju- trial significant [the no fendant has suffered important” and that at dent a trial. would warrant new issue] dice” that misconduct.” prosecutorial was no “there 10. As we observed Brief at Government Here, by Heath, con- F.2d at 1017. 580 in Sumrall: he that when trast, judge trial stated appel- question is not whether the “[T]he to defendant’s Irene Sands refer heard guilty, proven lants have time, fell he “almost prison according was established guilt whether 326, he rec., and added floor,” vol. to insure procedural safeguards to the can be cured.” Id. see how it that “I don’t unprejudiced a fair and trial before Additionally, while the Govern- decide is question we must jury.... rise to in this not case ment’s conduct prone more to con- jury was whether the “misconduct,” certainly bor- it of the level knowing they had appellants these vict trial court not- negligence. As ders on such than previous records without ed: knowledge.” attorney] just Government [the “[Y]ou assessing this In 360 F.2d at 314. thought, enough didn’t give it didn’t tion, issue in this significant that the it is do, going to you out what were think Mauldin, killed is not whether Sands case your enough, case well prepare didn’t point, but what since conceded going you were about what didn’t think agree with was. We cannot state of mind of answer that the ... kind and ask that the evi- conclusion the district court’s bring.” might “overwhelming” and intent was dence of Id. at incarcer- past to Sands’ that the references in na- passing “vague ation were on stress Finally, the Government’s jury more not make the cautionary ture” a did not want fact that mur- him of first prone convict disingenuous since somewhat is instruction killed fact, the evidence that In recognized der. itself the Government and malice premeditation chose would the defense [sic] afore- “[s]ometimes Contrary overwhelming. thought was empha anything so as not request included state of mind as to his evidence to defendant’s record].” reference size [the he had con- alcohol great quantity gen is cautionary instruction A fight. threats and Mauldin’s sumed not wish but we do erally preferred, that Mauldin testified witnesses Several counsel from a defendant’s defense prevent in the hunting gun backseat had a an that such decision making a tactical 212, 40-41, rec., car, damage “more than do instruction fight in which at a present that Sands was recognized in Maes at 339. We good.” Id. up opponent.5 Mauldin beaten States, F.2d tas v. United by improper information weight uninfluenced judgment or pass do not We record in the might this have found merely note that accuracy We of this evidence. evidence, ambiguous. incomplete with is and therefore 126-27. This combined context, in or out of the statement in Taken jury in first trial could the fact that the way prior no refers to a conviction. We agree upon premeditation, the issue of way knowing no what Mr. Smith have hours to and that the second took five meant, and, perforce, jury. neither did the intent, prevent on reach its decision Sands’ then, say, To that this remark could have certainty saying from “with reasonable us conjecture. influenced the prior the reference to records ‘had but very slight effect on the verdict of the consequence, only we are left with As ” Sumrall, F.2d at 314. jury.’ testimony Ms. that her cousin had Sands’ prison.” weigh been “to We must the district court erred We conclude that against guilt the evidence of statement mistrial, denying motions for Sands’ prosecution proffered to determine reverse and remand for a new trial. whether the volunteered remark could have influenced the outcome of this case. When MOORE, Judge, JOHN P. Circuit I light, the record is viewed in this can find dissenting: no reason to believe Ms. Sands’ revelation respectfully I be- must dissent because the defendant’s incarceration had certainty lieve with reasonable that the ver- jury. effect on the *5 jury by dict of the was not affected refer- testimony There is an abundance of prior record. I ences to the defendant’s First, supports the verdict. disagree analysis the court’s for two defendant, provoca- that the shows without First, view, my testimony in reasons. tion, pointed gun his at his victim’s head was not a reference to the Sheriff Smith trigger threatening and “clicked” the while Second, prior record. I cannot defendant’s to kill the victim and the others in the car. inability suggestion concur in the that the (R. II, 95). Second, Vol. the initial shoot- jury can first reach verdict be victim, ing of the once in his side and once accessing used in the effect of the back, warning provo- his was without or tioned remarks on the this case. Third, got the car cation. out of The basis for the court’s reversal lies pointed pistol at Barbara by within statements made two witnesses. cousin, “going and asked if she was Irene Sands volunteered the defendant had (R. 38). then tell.” Vol. Defendant prison.”1 accepting “been to Even victim, face, turned to his kicked him in the jury might upon have fixed this state- and fired three more shots blank into ment within the context in which it was body. light his head and at 39-40. In made, only reference stands evidence, of this I cannot believe the defendant’s incarceration. was influenced Ms. Sands’ remark the prison.” defendant had “been to upon The second statement which the court focuses is of Sheriff Smith who Further, logic drawing I can see no “Well, incomplete offered the statement: inability inferences from the of the first recently had out of patent It [the defendant] to reach a verdict. seems —The court describes this statement as me that what have influenced or failed an attempt by Mr. Smith to discuss the to have influenced that is irrelevant. record, presented ju- if defendant’s criminal but the remark Even the evidence to both negate representation. prosecutor sufficient to of the intent out that existence bears first-degree needed for murder. long asked Ms. Sands how she had known the defendant and then asked where he had lived testimony objection 1. This came in without or remark, during responding that time. After the interruption. It was not until some time after prosecutor asked whether the defendant completion of cross-examination that defense (R. vicinity lived in the of Ms. Sands' house. sought counsel a mistrial on basis of 310). Vol. The context shows the prosecutor responded statement. The questions of the was to fix the nature and dura- "surprise remark was a and shock” him familiarity defen- tion of Ms. Sands' with the merely attempting that he was to establish “her dant. familiarity with the defendant." Taken in con- text, question prompted which do not was identical—which ríes body reaction of

know—the collective surmise the utilized to be people cannot completely different reaction

collective judge the effect We must of souls.

group upon the testimony only volunteered do verdict. To which rendered logical. just nor neither

otherwise affirm. America, STATES

UNITED

Plaintiff-Appellee, York, New

Donald ROGERS a/k/a

Defendant-Appellant.

No. 88-2926. Appeals,

United States

Tenth Circuit.

March