            _____________

            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 heavy night of drinking on the Red Lake Indian Reservation,
Simon Frank Weise fatally stabbed Alan Maxwell in the chest with an eight-
inch butcher knife.    A jury convicted Weise of second-degree murder, see
18 U.S.C. § 1111(a) (1994), and Weise appeals.           The Government cross-
appeals   the   district   court's   decision   to   sentence   Weise   below   the
applicable guideline range.
See 18 U.S.C. § 3553(b) (1994); U.S.S.G. § 5K2.0 (1994).           We affirm Weise's
conviction, but remand for further consideration of one sentencing issue.


      Weise contends the police violated his due process rights by failing
to preserve critical evidence.     See Arizona v. Youngblood, 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 the telephone call reporting
the   stabbing.    Contrary   to   Weise's   view,   the    failure     to   preserve
potentially useful evidence does not violate due process unless the
defendant can show the police acted in bad faith.          Id.    In this case, the
district court's finding that the police officers did not act in bad faith
is not clearly erroneous.     The officers testified that Weise appeared to
be in control of his thoughts and actions at the time of his arrest.
Further, the officers interviewed all of the witnesses to the stabbing,
took several photographs of the crime scene, and did not know that the
telephone recording equipment was broken.       In sum, we see no due process
violation.


      Weise also contends the district court abused its discretion by
allowing Maxwell's thirteen-year-old son to testify.             According to Weise,
the son's testimony was irrelevant and unfairly prejudicial.            See Fed. R.
Evid. 401, 403.   We disagree.     Although Maxwell's son did not witness the
murder, his testimony explained why and when Maxwell went to the house
where the murder occurred.    We cannot say the district court clearly abused
its discretion in admitting this evidence.     See United States v. Mitchell,
31 F.3d 628, 631 (8th Cir. 1994).       Weise's contention that the district
court abused its discretion by allowing Maxwell's brother and several other
witnesses to testify about Maxwell's peaceful character is without merit.
The Government properly offered this testimony to rebut Weise's claim that
Maxwell was the aggressor.     Fed. R. Evid. 404(a)(2).




                                       -2-
        Weise next contends the prosecutor made an improper statement during
final argument that encouraged the jury to consider the loss suffered by
Maxwell's family.    In arguing against the logic of Weise's mistaken self-
defense theory, the prosecutor stated, "[T]hat [stabbing] could happen to
you and that could happen to me.      It happened to Alan Maxwell, and, because
it happened to Alan Maxwell, his son does not have a father today.          His
brother is without a brother."        Weise objected to this remark, but the
objection was overruled without any curative action by the district court.
Even assuming the statement was improper, the prosecutor's unrepeated
remark simply told the jury the obvious consequences of Maxwell's death.
Further, the Government produced strong evidence of Weise's guilt.       In the
context of the entire trial, we do not believe the prosecutor's single
remark was constitutionally prejudicial.      See United 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 the
jury.    First, Weise challenges the district court's instruction on the
lesser-included offense of voluntary manslaughter.           Weise argues the
district court's instruction was incomplete because it failed to tell the
jury that "voluntary manslaughter requires an intentional killing, unlike
involuntary    manslaughter   which    involves   an   unintentional   killing."
According to Weise, the instruction created the possibility that he could
be convicted of voluntary manslaughter "based on a conclusion that he was
merely reckless or negligent."   Assuming Weise's argument might be relevant
in a case where the jury must distinguish between the mental state
requirements of voluntary and involuntary manslaughter, see United States
v. Paul, 37 F.3d 496, 499-500 (9th Cir. 1994), this is not that kind of
case.     Here, Weise does not challenge the district court's decision to
instruct the jury on first-degree murder and the lesser-included offenses
of second-degree murder and voluntary manslaughter, but not to submit the
lesser offense of involuntary manslaughter.       Thus, for the purposes of the
greater and lesser




                                       -3-
offenses submitted in this case, the district court correctly stated that
first-degree       murder     is    a   killing   with   malice   aforethought     and
premeditation, second-degree murder is a killing with malice aforethought,
and voluntary manslaughter is a killing without the malice required for
murder because 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 the
district court's instruction.


        Next, Weise challenges the district court's instruction that told the
jury not to consider Weise's voluntary intoxication when deciding the
reasonableness of Weise's self-defense claim.            To succeed on his claim of
self-defense, Weise needed to show he had reasonable 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 jury
may     consider    the     circumstances    confronting    Weise,    see   id.,   the
reasonableness of Weise's belief is not measured through the eyes of a
reasonably intoxicated person, see 1 Wayne R. LaFave & Austin W. Scott,
Jr., Substantive Criminal Law § 4.10(d), at 558 (1986).               We conclude the
district court properly told the jury to disregard Weise's intoxication
when deciding if Weise's belief of imminent peril was founded on reasonably
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 district court's mistaken self-defense
instruction.       After reading the instructions to the jury, the district
court    invited both parties to make any last-minute objections.                   In
response, Weise's counsel expressed concern "about the second element of
the mistaken self-defense instruction because it appears to require a
reasonable perception of an imminent threat of death, [and] that may
actually overstate that, but [otherwise] no objection."              This unrevealing
objection neither explained how




                                            -4-
the second element overstated the law nor suggested a cure so the judge
could    correct    any   potential    defect     in     the   mistaken   self-defense
instruction.       See United States v. Martin, 511 F.2d 148, 152 (8th Cir.
1975).    Thus, Weise's objection was simply a general objection that
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 time
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 serious
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   ruled on until after the jury returned its verdict.                     Although
sufficiently distinct, Weise's objection was untimely and the claimed error
is not reviewable.     See Fed. R. Crim. P. 30; United States v. Williams, 923
F.2d 76, 78 (8th Cir.) (per curiam), cert. denied, 502 U.S. 841 (1991).
Additionally, Weise suggests the district court's instruction did not
properly explain the theory of mistaken self-defense.             Weise did not raise
this objection in the district court.             In fact, at the jury instruction
conference when the district court decided to use its own mistaken self-
defense instruction instead of giving Weise's proposed instruction, Weise's
counsel stated, "I have no objection to the [district court's mistaken
self-defense]      instruction."      We   will    not   consider   Weise's   argument
presented for the first time on appeal.            See United States v. Dixon, 51
F.3d 1376, 1383 (8th Cir. 1995).            Because Weise's objections were not
properly preserved, we review the challenged instruction for plain error,
and finding no miscarriage of justice, no useful purpose would be served
by an extended discussion.         See United States v. Ryan, 41 F.3d 361, 366
(8th Cir. 1994) (en banc), cert. denied, 115 S. Ct. 1793 (1995).




                                           -5-
     Turning to Weise's sentence, Weise contends the district court should
have decreased his offense level because he accepted responsibility for his
offense.      See U.S.S.G. § 3E1.1(a), (b)(1).                 Although Weise admitted
stabbing Maxwell, Weise has never accepted responsibility for second-degree
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 adjustment.                  See United States
v. Makes Room For Them, 49 F.3d 410, 416 (8th Cir. 1995).


     On     cross-appeal,       the     Government     contends    the    district     court
improperly granted Weise's request for a downward departure under U.S.S.G.
§ 5K2.0.   The district court may impose a sentence outside the applicable
guideline range if there are mitigating circumstances "of a kind, or to a
degree,    not    adequately     taken      into   consideration     by    the    Sentencing
Commission in formulating the guidelines."             18 U.S.C. § 3553(b) (1994); see
U.S.S.G. § 5K2.0.         Relying on United States v. Big Crow, 898 F.2d 1326,
1331-32    (8th    Cir.   1990),      the   district   court   decided     "the    difficult
conditions    on    the   Red   Lake    Reservation,     [Weise's]    record      of   steady
employment and his maintenance of family ties and responsibilities are
sufficiently unique in degree to constitute grounds for departure."                    Aside
from reservation life, the district court recognized that Weise's work
record and family relationships were not otherwise unusual enough to
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 due
substantial deference," id.. at *12.            Departures must be limited, however,
to those cases in which the defendant's "circumstances differ significantly
from the normal case."          United States v. Garlich, 951 F.2d 161, 164 (8th
Cir. 1991).




                                             -6-
     After we authorized a downward departure in Big Crow based on the
defendant's "excellent employment history, solid community ties, and
consistent efforts to lead a decent life in [the] difficult environment [of
the reservation]," Big Crow 898 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 the
defendant in [Big Crow].'"      United States v. Haversat, 22 F.3d 790, 795
(8th Cir. 1994) (quoting Garlich, 951 F.2d at 164), cert. denied, 116 S.
Ct. 671 (1995); United States v. One Star, 9 F.3d 60, 61 (8th Cir. 1993).
In other words, 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 the
hardships of reservation life.


     Although Weise mentioned some difficulties of reservation life (high
unemployment, "adverse" living conditions, and violence on the reservation)
in a position paper he filed before sentencing, Weise neither provided
details nor made clear that he struggled against these difficulties and
that his accomplishments stand out because he succeeded.       See Haversat, 22
F.3d at 795; One Star, 9 F.3d at 61.    Indeed, the presentence report shows
that despite Weise's parents' problems with steady employment and alcohol,
Weise's family upbringing was good, Weise's parents always provided for
their children's necessities, and there was never any physical or sexual
abuse in the family.   Even though the record provides some support for the
district   court's   general   understanding   of   living   conditions   on   the
reservation, we cannot tell what there was about the impact of reservation
life on Weise that makes his case "different from the ordinary case where
the factor[s] [of steady employment and stable family ties are] present."
Koon, 1996 WL 315800 at *10.       In short, we simply do not have enough
information to review the district court's exercise of its sentencing
discretion.   Thus, we must remand this sentencing question to the district
court for "a refined assessment" of the departure decision




                                      -7-
on an expanded record.    Id. at *12.


     Turning to the other ground for the district court's departure, we
disagree with the district 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 than
merely something `out of character.'"          United States v. Carey, 895 F.2d
318, 325 (7th Cir. 1990).      Instead, a single act of aberrant behavior
contemplates a "`spontaneous and seemingly thoughtless [act].'"            Garlich,
951 F.2d at 164 (quoted case omitted).         Here, Weise's conduct was neither
spontaneous nor thoughtless.   Unprovoked, Weise got up from the table where
Maxwell was seated, walked across the room, selected an eight-inch butcher
knife, returned to the table, and then stabbed Maxwell 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
sentencing   issue;   otherwise,   the    judgment   of   the   district   court   is
affirmed.


JOHN R. GIBSON, Circuit Judge, concurring in part and dissenting in part.


     While I concur with the decision of the court today rejecting Weise's
claims on appeal, I respectfully dissent from the decision reversing the
downward departure under U.S.S.G. § 5K2.0.


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




                                         -8-
(1995), to create a more stringent burden for a Big Crow1 departure.     It
then holds Weise offered only some evidence, but did not provide the
connecting link of showing how the conditions on the reservation affected
him so as to make his case extraordinary.   In doing so, the court fails to
give proper consideration to the statute prohibiting limitation of the
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 guideline
sentence.     Koon v. United States, Nos. 94-1664, 94-8842, 1996 WL 315800
(U.S. June 13, 1996).     After stating that such a decision may be owed no
deference when there has been a mathematical error in applying the
guidelines, the Court said:


      A district court's decision to depart from the
      Guidelines, by contrast, will in most cases be due
      substantial deference, for it embodies the traditional
      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:


      Whether a given factor is present to a degree not
      adequately considered by the Commission, or whether a
      discouraged factor nonetheless justifies departure
      because it is present in some unusual or exceptional way,
      are matters determined in large part by comparison with
      the facts of other Guidelines cases.      District courts
      have an institutional advantage over appellate courts in
      making these sorts of determinations, especially as they
      see so many more Guidelines cases than appellate courts
      do.


Id.   The Court continued:




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

                                     -9-
     "To ignore the district court's special competence--about
     the `ordinariness' or `unusualness' of a particular case-
     -would risk depriving the Sentencing Commission of an
     important source of information, namely, the reactions of
     the trial judge to the fact-specific circumstances of the
     case. . . ."


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


     The   district    court   specifically   enumerated   examples   of   Weise's
efforts:   that he had maintained employment over the last five and a half
years, and that he was a good parent to his own children and the children
of his companion.     The district court stated that while these facts may not
appear striking, "considering the difficult conditions on the Red Lake
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 Lake
Indian Reservation, it cannot tell what there was about this that makes the
impact of reservation life on Weise different from the ordinary case, and
argues that it does not have enough information to review the district
court's exercise of its discretion.      In doing so, the court simply fails
to accord the deference Koon requires, or to consider the information
before the district judge upon which he made his findings.


     The presentence investigation report adopted by the district court
stated that when Weise was growing up, "alcohol abuse and solid employment
were issues [Weise's] family constantly struggled with as do many families
on the reservation today."        Weise filed a position paper before the
sentencing, which makes factual assertions about high unemployment and
other "adverse" living conditions on the Red Lake Reservation.             Weise's
counsel also




                                      -10-
attached copies of judgments in the cases of other Red Lake Reservation
inhabitants who committed homicides; significantly, the district judge in
this case was the judge in two of those other Red Lake homicide cases.
Counsel also submitted the report of Dr. Cronin, a psychologist, who stated
that Weise was fearful because of violence on the reservation.                       At
sentencing, counsel made a formal proffer of the testimony of Chief Judge
Graves, who was familiar with Weise's case and with crimes on the Red Lake
Reservation, and who would have stated that within the spectrum of homicide
defendants and homicide incidents in that violent community, Weise falls
at the low end, both of the individuals convicted of the offenses and
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    no
objections to these statements of Weise's counsel at sentencing.             Further,
the United States's responses to Weise's position paper on sentencing,
while expressing generalized opposition to a downward departure and arguing
that no atypical factor or combination of factors had been shown that would
justify the departure, made no objection to any of the specific statements
in Weise's position paper.          The government failed to object to the
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 States v. Sneath, 557 F.2d 149, 150 (8th Cir. 1977) (because
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 opportunity
to rebut them).   The government's failure to object should preclude it from
raising this issue.


     The district court's statement that it recognized the difficult
conditions on the reservation 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




                                      -11-
have in the past affirmed a downward departure based, in part, on a similar
assessment of the hardships of reservation life and a defendant's unusual
efforts to lead a productive life there.          The district court in United
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 the
district judge demonstrate knowledge of the conditions on the reservation,
we should not require production of evidence on this issue absent objection
by one of the parties.


        This court in United States v. White Buffalo, 10 F.3d 575 (8th Cir.
1993), distinguished Big Crow and One Star.         In White Buffalo, the court
stated that a downward departure could not be justified under U.S.S.G.
§ 5K2.0, pointing to the distinction that White Buffalo supported no
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
corporate    president,   was   awarded   a   downward   departure   based   on   his
assistance to the court, his good character and otherwise exemplary life,
and the coercive economic influence of his business competitor.                    We
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
hardship, this statement has significance primarily in pointing to the
factual distinction, rather than an insufficiency in the evidence.                The
factual distinctions between this case on the one hand, and White Buffalo
and Haversat on the other, render White Buffalo and Haversat inapposite
here.


        Moreover, it is most significant that Koon requires a greater degree
of deference than evidently was employed in Haversat and White Buffalo.




                                      -12-
     The record 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 evidence 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 limitation shall be placed on the information
     concerning the background, character, and conduct of a
     person convicted of an offense which a court of the
     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, in
determining whether a departure from the guideline range is warranted, "the
court may consider, without limitation, any information concerning the
background, character and conduct of the defendant, unless otherwise
prohibited by law."   It was just this kind of information the district
court considered in making its findings in this case.


     The court, in commenting on Weise's upbringing, simply does not
address the substance of the district court's findings.     Certainly, its
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 suffices to say that the court today departs from the closing
words of the Supreme Court in Koon where, after pointing to the goal of
reducing disparities in sentencing, the Court states:
     This too must be remembered, however.       It has been
     uniform and constant in the federal judicial tradition
     for the sentencing judge to consider every convicted
     person as an individual and every case as a unique study




                                   -13-
     in the human failings that sometimes mitigate, sometimes magnify, the
     crime and the punishment to ensue. We do not understand it to have
     been the congressional purpose to withdraw all sentencing discretion
     from the United States District Judge. Discretion is reserved within
     the Sentencing Guidelines, and reflected by the standard of appellate
     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.




                                    -14-
