United States v. Simon Frank Weise, United States of America v. Simon Frank Weise

to the house where the murder well went FAGG, GIBSON, R. and Before JOHN say court occurred. We cannot WOLLMAN, Judges. Circuit clearly admitting abused its discretion FAGG, Judge. Mitchell, Circuit States v. evidence. See United Cir.1994). con heavy night drinking on the Red After a its dis tention that the district court abused Reservation, Frank Lake Indian Simon and by allowing cretion Maxwell’s brother fatally Alan Maxwell Weise stabbed testify several other witnesses to about Max A eight-inch butcher knife. chest with peaceful character is without merit. well’s second-degree mur- jury convicted Weise testi properly The Government offered this 1111(a) (1994), der, and see U.S.C. mony that Maxwell to rebut Weise’s claim cross-ap- appeals. Weise The Government 404(a)(2). aggressor. was the Fed.R.Evid. court’s decision to sentence peals the district case, prosecutor submitted in this next contends the during final improper correctly first-degree statement made an stated murder is encouraged jury to consid- argument that killing aforethought pre- with malice family. In meditation, Maxwell’s er the loss suffered second-degree kill- murder is a logic mistaken arguing against the of Weise’s ing aforethought, voluntary with malice stated, theory, prosecutor self-defense manslaughter killing is a without the malice you [stabbing] happen could “[T]hat required killing for .murder because the oc- happened happen could to me. It passion. curs a heat of See 18 U.S.C. Maxwell, and, happened Alan because it 1112(a) 1111(a), (1994); §§ Maxwell, his son does not have a father Alan Bordeaux, today. a brother.” His brother is without Weise, prejudicial Unlike we find no error remark, objec- objected but the Weise to this in the district court’s instruction. any tion was overruled without curative ac- by assuming court. Even tion the district Next, challenges Weise the district improper, prosecutor’s the statement was the jury court’s instruction that the told not to simply jury unrepeated remark told the the voluntary consider Weise’s intoxication when consequences of Maxwell’s death. obvious deciding the of reasonableness Weise’s self- Further, strong produced the Government defense claim. To succeed on his claim of guilt. of In the context of evidence Weise’s self-defense, Weise needed to show he had trial, prose- we do not believe the the entire grounds reasonable to believe he was in im constitutionally single was cutor’s remark danger bodily minent of death or serious McGuire, prejudicial. See United States v. Deon, injury. 354, States v. 656 F.2d United (8th 1177, Cir.), F.3d 1189-90 cert. de 45 (8th Cir.1981) curiam). (per Although 356 —nied, 2558, 115 132 S.Ct. jury may the consider the circumstances (1995). Weise, id., confronting see the reasonable of ness Weise’s belief is not measured Weise next contends the district through eyes reasonably the of a intoxicated jury. improperly court instructed the person, Wayne 1see R. LaFave & Austin W. First, challenges the district court’s Weise Scott, Jr., Criminal Law Substantive on the lesser-included offense of instruction (1986). 4.10(d), at 558 We conclude the voluntary manslaughter. argues Weise jury properly told the to disre incomplete court’s instruction was gard deciding if Weise’s intoxication when jury it failed to tell the that “vol because peril was Weise’s belief of imminent founded untary manslaughter requires an intentional manslaughter reasonably perceived circumstances. killing, involuntary unlike on Yazzie, 422, killing.” v. 660 F.2d 431 which involves unintentional (10th Weise, Cir.1981), 923, According to the instruction created possibility that he could be convicted of 102 71 L.Ed.2d 464 voluntary manslaughter on a conclu “based Finally, challenges the district merely negli or sion that he was reckless court’s mistaken self-defense instruction. gent.” Assuming argument might Weise’s jury, reading the After instructions jury be relevant a case where the must parties to make district court invited both distinguish between the mental state re any objections. response, last-minute voluntary involuntary of quirements expressed concern “about Weise’s counsel Paul, manslaughter, see United States v. self- the second element of the mistaken F.3d 499-500 this is not appears to re defense instruction because Here, that kind of case. Weise does not perception an imminent quire a reasonable in challenge the district court’s decision to death, may actually over threat of [and] jury first-degree on murder and struct that, objection.” [otherwise] state but the lesser-included offenses of second-de objection explained unrevealing This neither voluntary manslaughter, gree murder and overstated the law how the second element but not to submit the lesser offense of in Thus, judge could suggested nor a cure so the voluntary manslaughter. pur for the any potential poses greater correct defect mistaken and lesser offenses Maxwell, accepted stabbing Weise has never See United States instruction. self-defense (8th Cir.1975). Martin, second-degree responsibility for murder. To Thus, objection simply general contrary, consistently Weise’s Weise has denied nothing appel- objection preserved aforethought. that he acted with malice 30; Fed.R.Crim.P. United Thus, late review. See properly denied the district Bettelyoun, 16 F.3d States acceptance respon- request for an Weise’s Cir.1994). Later, during jury’s second adjustment. sibility See United States v. deliberations, again day counsel Them, Makes Room For of the mis- element took aim at the second by tendering a taken self-defense instruction proposed instruction to letter and a revised cross-appeal, the Government On put time counsel court. This improperly grant contends the district court and asked to district court cards on the table request ed Weise’s for a downward by replacing modify its instruction under U.S.S.G. 5K2.0. The district court danger of death or serious words “imminent applicable may impose a sentence outside the bodily the words “imminent dan- harm” with guideline range mitigating if there cir ger injury.” argument appeal kind, degree, “of a or to a cumstances objection, neither is based on this which was adequately taken into consideration placed nor ruled on until after the of record Sentencing formulating Commission in Although jury returned its verdict. suffi- 3553(b) (1994); § guidelines.” 18 U.S.C. see distinct, objection ciently was un- Weise’s § Relying 5K2.0. U.S.S.G. United States timely and claimed error is not reviewa- (8th Crow, 1326, Big v. 898 F.2d 1331-32 30; ble. See Fed.R.Crim.P. United States v. Cir.1990), the district court decided dif “the (8th Cir.) Williams, 76, (per F.2d 78 923 ficult conditions on the Red Lake Reserva denied, 841, curiam), 502 112 cert. S.Ct. tion, steady employment record of [Weise’s] (1991). 131, Additionally, 116 L.Ed.2d 98 family and his maintenance of ties and re suggests the district court’s instruc Weise sponsibilities sufficiently unique in de properly explain theory tion did not gree grounds departure.” to constitute for Weise did not raise mistaken self-defense. life, Aside from reservation the district court fact, objection in the district court. recognized that Weise’s work record and jury at the instruction conference when the family relationships were not otherwise un to use its own mistaken decided enough departure. usual to warrant See giving self-defense instruction instead of 5H1.5, §§ 1.6. The district court U.S.S.G. instruction, proposed Weise’s counsel departure also decided a was warranted be stated, objection “I have no to the [district single cause Weise’s crime was a act of aber court’s mistaken instruction.” self-defense] 1, A, pt. rant behavior. See U.S.S.G. ch. argument pre We will not consider Weise’s 4(d). intro. We review the district court’s appeal. sented for the first time on grant departure decision to a downward for Dixon, 1376, United States v. 51 F.3d 1383 discretion, an abuse of Koon v. United objections Because Weise’s — States, U.S.-,-, 2035, 116 S.Ct. properly preserved,

were not we review the 2043, (1996), 135 L.Ed.2d 392 and the deci error, challenged plain instruction for will “in sion most cases be due substantial finding miscarriage justice, no useful deference,” id. at 116 purpose would be served an extended limited, however, Departures must be Ryan, v. 41 discussion. See United States in which those cases the defendant’s “circum (8th Cir.1994) (en banc), F.3d 366 cert. significantly from stances differ the normal — denied, U.S.-, 115 S.Ct. 131 Garlich, case.” United States v. 951 F.2d Cir.1991). (8th 161, 164 sentence, Turning to Weise’s Weise con- we tends After authorized downward the district court should have de- accepted Big based on the defendant’s creased his offense level because he Crow “excel- employment history, community responsibility for his offense. See lent solid 3El.l(a), (b)(1). ties, Although Weise admitted and consistent efforts to lead a decent Turning ground to the other for the dis- the res- [of environment difficult [the] life departure, disagree trict court’s we with the 1332, our ervation],” 898 F.2d at Big Crow district court’s view that Weise’s criminal departure autho- recognized the eases later aberrant behavior. The district conduct was apply not “where does rized Crow opinions psy- on the relied ‘struggled in show that he fail[s] defendant chologist lay witnesses Weise “was like the defendant a difficult environment ” prone Contrary not to violence.” to the dis- Haversat, 22 v. [Big ].’ Crow view, trict court’s aberrant behavior “must be Cir.1994) Garlich, (quoting F.3d merely something more than ‘out of charac- — U.S.-, 164), F.2d at ” Carey, ter.’ United States (1995); Unit 133 L.Ed.2d 521 116 S.Ct. (7th Cir.1990). Instead, single act of Star, 60, 61 ed States One “‘sponta- contemplates aberrant behavior Cir.1993). words, thing it is one In other ” seemingly thoughtless [act].’ neous and merely lives on a reserva when a defendant Garlich, (quoted F.2d at 164 case omit- may be difficult for some tion where life ted). Here, Weise’s conduct was neither others, telling when a defen but thoughtless. Unprovoked, spontaneous nor experiences and overcomes personally dant got up from the where Weise table Maxwell hardships life. of reservation seated, room, walked across the selected knife, eight-inch butcher returned to the dif Although mentioned some table, and then stabbed Maxwell twice (high unemploy life ficulties reservation circumstances, chest. In these Weise’s con- conditions, ment, living and vio “adverse” single duct was not a act of aberrant behav- reservation) position paper in a on the lence ior. pro sentencing, Weise neither he filed before Accordingly, we remand for further consid- strug that he details nor made clear vided issue; sentencing eration of the 5K2.0 oth- gled against difficulties and that these erwise, judgment the of the district court is out he suc accomplishments stand because affirmed. Haversat, 795; 22 F.3d at One ceeded. See Indeed, GIBSON, Star, Judge, presentence the JOHN R. Circuit 9 F.3d at 61. part dissenting part. in parents’ concurring in despite Weise’s report shows that steady employment and alco problems with of I concur with the decision the While hol, family good, upbringing was rejecting ap- today Weise’s claims on always provided for their parents respectfully I dissent from the decision peal, necessities, never children’s and there was departure under reversing the downward family. any physical or sexual abuse § 5K2.0. provides sup though Even the record some today makes no The court states Weise general port for the district court’s under struggled in showing that he a difficult envi standing living conditions on the reserva signifi ronment or otherwise overcame some tion, about the we cannot tell what there was language in hardship. It elevates our cant on

impact of reservation life Weise Haversat, 22 F.3d 790 ordinary — makes his case “different from the -, U.S. steady employ factor[s] [of case where the 521(1995), a 133 L.Ed.2d to create family present.” ties are] ment and stable stringent Big a de more burden for Crow1 —Koon, at-, In 116 S.Ct. at 2045. U.S. only parture'. It then holds Weise offered short, enough have infor simply we do not evidence, con provide but did not the some court’s exercise mation to review the district necting showing link of how the conditions Thus, sentencing we must of its discretion. him so as to make the reservation affected question so, dis sentencing extraordinary. doing In the remand his case the give proper “a refined assessment” of the consideration to trict court for court fails of the informa expanded prohibiting an record. limitation departure decision on statute sentencing, may in at-, courts use tion district Id. 116 S.Ct. at 2046. Cir.1990). Crow, 1. States v. 898 F.2d 1326 United Reservation, ruling court’s the Red Lake defendant’s rec- give and fails steady employment ord of and his mainte- to. deference it is entitled family responsibilities nance of ties and days in Supreme Court has recent The sufficiently unique degree in to constitute due a the deference is decision clarified grounds departure.” judge depart downward from of a district that, point court’s The decisive while States, guideline sentence. Koon United support — finds some for the district court’s 116 S.Ct. 135 L.Ed.2d understanding living conditions on the Red stating that After such decision Reservation, Lake Indian it cannot tell what owed no deference when there has be impact there was about this that makes the applying error in been a mathematical life on Weise from of reservation different guidelines, the Court said: case, ordinary argues that it does not depart decision to from A district court’s enough have information to review the dis- Guidelines, contrast, by will most trict In court’s exercise its discretion. deference, substantial for it cases be due so, doing simply the court fails to accord the embodies the traditional exercise of discre- requires, Koon or to consider deference sentencing by a court. tion judge upon information before the district at-, considering 116 S.Ct. findings. which he made his whether the case falls outside the heartland presentence investigation report guidelines, contin- of cases Court adopted by the district court stated that ued: growing up, when Weise was “alcohol abuse given present Whether factor is to a employment and solid were issues [Weise’s] degree adequately considered family constantly struggled many with as do Commission, discouraged or whether a fac- today.” families on the reservation justifies departure tor nonetheless because position paper sentencing, filed a before the present exceptional it is some unusual or high makes factual which assertions about way, large part are matters determined in unemployment living and other “adverse” by comparison with the facts of other conditions on the Red Lake Reservation. District Guidelines cases. courts have copies judg- Weise’s counsel also attached advantage appellate institutional over ments the cases of other Red Lake Reser- making courts these sorts of determina- homicides; vation inhabitants who committed tions, they especially many as see so more significantly, judge in this case appellate Guidelines cases than courts do. judge in was the two of those other Red Id. The Court continued: Lake homicide cases. Counsel also submit- ignore special “To the district court’s com- Cronin, report psychologist, ted the of Dr. a petence or ‘un- ‘ordinariness’ —-about who stated that Weise was fearful because particular usualness’ of a risk case—would sentencing, violence on the reservation. At depriving Sentencing Commission of proffer counsel made a formal of the testimo- information, important source of name- ny Graves, Judge of Chief familiar who was ly, judge the reactions of the trial to the with Weise’s case and with crimes on the fact-specific circumstances Reservation, Red Lake and who would have ease....” spectrum stated that within the of homicide Rivera, (quoting United States v. 994 defendants and homicide in that incidents (1st Cir.1993)). community, violent Weise falls at the low end, both of the individuals convicted of the specifically The district court enumerated taking offenses and into account the circum- examples of Weise’s efforts: that he had trial, stances of the offense itself. At employment maintained over the last five testimony community introduced members years, a good half and that he was a peaceable of his character. parent to his own children and the children companion. of his significant The district court stated It is that counsel for the United may appear objections that while these facts not strik- States made no to these state- ing, “considering sentencing. the difficult on conditions ments Weise’s counsel at sat, 795-96, defendant, Further, responses to F.3d at a cor- the United States’s sentencing, porate president, a paper on while was awarded downward position departure to a down- based on his assistance generalized opposition to the expressing ex-, court, atypical good no arguing character and otherwise departure ward life, emplary of factors had been and the coercive economic influ- factor or combination departure, competitor. justify the made ence of his business We re- that would shown versed, distinguishing Big objection any specific statements Crow. While we to government position paper. The in Haversat in stated the district court object point any in failed to to in to the statements Weise’s evidence the record failed sentencing, struggled how in paper on to statements show Haversat a difficult position sentencing, or to the environment or otherwise overcame made counsel some findings. hardship, significance pri- factual See United this has district court’s statement Sneath, distinction, marily pointing in to the factual 557 F.2d States Cir.1977) (because deny insufficiency did not than an defendant rather the evidence. reports that presentenee The factual distinctions between this case on statements FBI, hand, he could assert the one and White and Haver- he had lied Buffalo other, opportunity to deprived was of an sat render White that he Buffalo them). inapposite failure to government’s The Haversat here. rebut raising from object preclude should Moreover, significant it is most that Koon issue. greater requires degree a of deference than evidently employed that it rec- in Haversat and district court’s statement The ognized the difficult conditions on the reser- White Buffalo. place consid- and that it was a violent

vation adequate in this record ease population are statements of ering its small support findings. the district court’s acquaintance with the conditions the court’s Wise, generally United States 976 F.2d past have on the reservation. We (8th Cir.1992) (en banc) (in sentencing based, a affirmed downward proceedings consider a a of the hard- part, on similar assessment array wider of evidence than would be admis ships of reservation life and defendant’s trial), sible at productive unusual efforts to lead a life 1592, 123 there. The district court United States v. Congress has made clear 18 U.S.C. Crow, 1326, 1381 (1994): § 3661 departed grounds that the downward on the placed No limitation shall be on the in- consistently struggled defendant had to over concerning background, formation come the “difficult conditions which the court character, person and conduct of convict- country,” finding in Indian exist[] knows ed of an offense which a court of the that before us in this case. Ac not unlike may receive and consider for Star, cord United States One imposing appropriate purpose findings Where the of the sentence. judge knowledge district demonstrate reservation, on the we should not conditions in language paraphrased This production on this require of evidence issue 1.4, that, determining in IB which states objection by parties. one of the absent guideline departure from the whether consider, warranted, range is “the court in This court United States v. White Buffa limitation, any without information concern- lo, Cir.1993), distinguished F.3d 575 ing background, character and conduct of Buffalo, Crow One Star. White defendant, prohibited unless otherwise the court stated that a downward just by law.” It was this kind of information justified could not be under U.S.S.G. making court considered its the district 5K2.0, pointing to the distinction that findings in this case. supported dependents Buffalo White court, commenting up- standing in on Weise’s presented no evidence of his simply address the sub- community. Similarly, bringing, in Haver- does not Id. at 577. findings. court’s stance accord the

Certainly, discussion fails to its findings the substantial def-

district court’s entitled, they due to which

erence to advantage institutional dealing with such issues. possess courts —Koon, 116 S.Ct. at today say that the court

It suffices to closing of the Su-

departs from the words where, pointing

preme Koon after Court goal reducing disparities in sentenc-

ing, the Court states: remembered, be however.

This too must

It has been uniform and constant judicial sentencing tradition for the

federal every person

judge to consider convicted every unique

as an individual and case as

study failings human that sometimes

mitigate, magnify, sometimes the crime punishment

and the to ensue. We do not congres- it to have

understand been purpose sentencing

sional to withdraw all from the United States District

discretion

Judge. Discretion is reserved within the Guidelines,

Sentencing and reflected appellate adopt.

the standard of review we at-, 116 S.Ct. at 2053.

I would affirm the sentence as well as the

conviction. America, Appellee,

UNITED STATES COTRONEO, Appellant.

Lorenzo J.

No. 95-3453. Appeals,

United States Court of

Eighth Circuit.

Submitted Feb. 1996. July

Decided

Case Details

Case Name: United States v. Simon Frank Weise, United States of America v. Simon Frank Weise

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 15, 1996

Citation: 89 F.3d 502

Docket Number: 95-2830MN, 95-3015MN

Court Abbreviation: 8th Cir.