United States v. Mullins

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 10, 2012
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 11-7055
(D.C. No. 6:10-CR-00047-RAW-1)
SPARKY JOE MULLINS, (E.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before HOLMES, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.
Sparky Joe Mullins was found guilty of two counts of making false statements
to the Social Security Administration in violation of 18 U.S.C. § 1001(a)(2).
Mr. Mullins was sentenced to probation with a period of home confinement, and was
ordered to pay a fine of $250,000. Mr. Mullins appeals from his convictions and
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R App. P. 32.1 and 10th Cir. R. 32.1.
sentence. We exercise jurisdiction under 28 U.S.C. § 1291, and we summarily
AFFIRM.
I. Background
Mr. Mullins was charged in a two-count indictment with making false
statements on his Social Security forms. Specifically, Count One charged that on
July 23, 2007, on a Social Security Form titled “Work Activity Report—Self
Employed Person,” Mr. Mullins “falsely stated and represented that he had no
self-employment income and did not work since October 1996 when in truth and fact,
as defendant well knew, he worked and received income from self-employment.”
Aplt. App. at 1. Count Two charged that on the same day, on a Social Security Form
titled “Report of Continuing Disability Interview,” Mr. Mullins “stated and
represented that he had not worked since 1996, when in truth and fact, as defendant
well knew, he worked and received earnings from self-employment.” Id. at 2.
According to the government’s brief, “at trial Mr. Mullins stated that he had
not worked nor earned any income from self employment since he became disabled,
but evidence established that Defendant owned a horse ranch, held a trainer’s license,
performed physical labor and entered winning horses at racetracks during the time he
claimed not to be working.” Aplee. Br. at 3. A jury convicted Mr. Mullins on both
counts. Mr. Mullins filed a motion for judgment of acquittal and a motion for new
trial. The district court denied both motions.
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The district court calculated the advisory guidelines range to be ten to sixteen
months’ imprisonment with a fine range of $3,000 to $30,000. The district court
varied downward on the incarceration portion and sentenced Mr. Mullins to a
non-custodial sentence of five years’ probation with eight months of home
confinement. The district court departed upward on the fine portion and ordered
Mr. Mullins to pay $250,000.
Mr. Mullins now appeals from his convictions and sentence. He argues:
(1) there was insufficient evidence to support his convictions; (2) irrelevant evidence
was admitted that caused a variance in the charges; (3) the Social Security
investigator gave expert opinion testimony without being qualified as an expert; and
(4) the fine of $250,000 was not supported by evidence in the record.
II. Discussion
The issues in this appeal require us to review the testimony and other evidence
that was admitted at trial and at sentencing. An appendix containing the relevant
portions of the district court record is therefore necessary for us to conduct our
review. Because Mr. Mullins has failed to provide an adequate appendix for our
review of his issues, we summarily affirm the district court’s judgment and sentence.
Tenth Circuit Rule 30.1(A)(1) provides that “[t]he appellant must file an
appendix sufficient for considering and deciding the issues on appeal.” Tenth Circuit
Rule 10.1(A)(1) instructs that it is the appellant’s duty “to provide all portions of the
transcript necessary to give the court a complete and accurate record of the
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proceedings related to the issues on appeal.” The rule further explains that “[w]hen
sufficiency of the evidence is raised, the entire relevant trial transcript must be
provided.” Id. at 10.1(A)(1)(a). And, this court “need not remedy any failure of
counsel to provide an adequate appendix.” Id. at 30.1(A)(3); see also 10th Cir. R.
10.3(B) (“The court need not remedy any failure by counsel to designate an adequate
record. When the party asserting an issue fails to provide a record sufficient for
considering that issue, the court may decline to consider it.”).
Although Mr. Mullins filed an appendix with his opening brief, it is woefully
inadequate. His appendix contains only thirty-one pages from the trial transcript
(there are actually thirty-three pages included, but two of the pages are duplicates,
compare Aplt. App. at 30-31 with id. at 40-40A). The pages are cobbled together
mostly as single page excerpts and are not always in proper numerical order.
See, e.g., id. at 11-13 (pages 77, 70 and 73 of the trial transcript); id. at 22-25 (pages
194, 240, 242, and 265 of the trial transcript). Mr. Mullins’ fourth issue involves an
evidentiary challenge to the district court’s sentencing decision, but his appendix
contains only one page of the sentencing hearing transcript (there are two separate
pages included in the appendix, but they are copies of the same transcript page,
compare id. at 37 with id. at 41).
In United States v. Vasquez, 985 F.2d 491, 495 (10th Cir. 1993), we declined
to consider appellant’s challenges to the sufficiency of the evidence and other
evidentiary rulings due to his failure to provide the court with a transcript of the
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proceedings below. We have declined to hear claims predicated on record evidence
not included in the appendix in other cases as well. See, e.g., Burnett v. Sw. Bell
Tele., L.P., 555 F.3d 906, 910 (10th Cir. 2009); Travelers Indem. Co. v. Accurate
Autobody, Inc., 340 F.3d 1118, 1121 (10th Cir. 2003) (citing cases). We likewise
decline to hear the issues Mr. Mullins has raised in his appeal.
III. Conclusion
Appellate review of Mr. Mullins’ issues is not possible without complete
copies of the relevant transcripts. Accordingly, we summarily AFFIRM the district
court’s judgment and sentence due to Mr. Mullins’ failure to provide this court with
an adequate appendix.
Entered for the Court
Wade Brorby
Senior Circuit Judge
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