USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1925
No. 93-1926
UNITED STATES OF AMERICA,
Appellee,
v.
ARMAND PAUL VEILLEUX,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Aldrich, Senior Circuit Judge,
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and Young,* District Judge.
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Peter M. Dempsey on brief for appellant.
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Margaret D. McGaughey, Assistant United States Attorney, Jay P.
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McCloskey, United States Attorney, and Nicholas M. Gess, Assistant
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United States Attorney, on brief for appellee.
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November 14, 1994
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*Of the District of Massachusetts, sitting by designation.
ALDRICH, Senior Circuit Judge. Armand P. Veilleux,
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whom the district court described as a one-person crime wave,
waived indictment and pled guilty to a three count
information charging conspiracies to possess, and to
distribute, in excess of 500 grams of cocaine, and to evade
the payment of income taxes. He failed to appear for
sentencing, but was later apprehended while trying to enter
the United States from Canada. This episode resulted in a
seven count indictment that included assaulting a federal
officer and the use of a firearm; making false statements,
and failing to report currency importation (some $178,000)
and, for good measure, failure to have appeared for the prior
sentencing. To his conviction on the information there was
added, in due course, convictions on all counts in the
indictment. On this joint appeal defendant complains of the
court's excluding his proffered excuse for non-appearance for
sentencing; its admitting evidence of the testing of the
firearm; and various rulings with respect to sentencing. We
affirm.
Failure to Appear
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18 U.S.C. 3146(a)(1) made it an offense for
defendant knowingly to fail to appear for sentencing. His
defense lay in subsection (c), "that uncontrollable
circumstances prevented . . . appearing." "Circumstances"
fall into two categories, physical and mental, the latter
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best characterized as duress. There was no question here of
physical prevention. Uncontrollable duress must be
sufficient to produce an unavoidable fear of "serious bodily
injury or death." Cf. United States v. Amparo, 961 F.2d 288,
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291 (1st Cir.) cert. denied sub nom. Sanchez v. United
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States, 113 S. Ct. 224 (1992). Defendant's excluded offer
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was that he had lost faith in the judicial system and that
because he had refused to furnish the prosecutor with
favorable testimony in another case he feared reprisal.
Obviously this must have meant conduct in connection with
sentencing, or sentencing procedure, not bodily injury. Even
were we to assume that defendant had a well-grounded fear of
what, in his opinion, would be an improper sentence, this
could not justify a failure to appear. United States v.
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Odufowora, 814 F.2d 73, 74 (1st Cir. 1987). This would
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practically put appearance for sentencing on a voluntary
basis.
Test Firing
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The government apparently conceded that it had the
burden of showing that defendant's firearm was operable,2
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2. The statute, 18 U.S.C. 921(a)(3), would appear to require
less. It states, "The term 'firearm' means (A) any weapon
. . . which will or is designed to or may readily be
converted to expel a projectile by the action of an
explosive." See also United States v. Ruiz, 986 F.2d 905,
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910 (5th Cir.), (holding that under this particular provision
of the statute the government need not prove that the gun is
capable of firing so long as it demonstrates that it was
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designed to fire), cert. denied sub nom. Crawford v. United
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and when, two days before trial, an expected stipulation was
not forthcoming, it conducted a successful test. No report
thereof was conveyed to defendant. He claimed that, where
general discovery had been sought, Fed. R. Crim. P.
16(a)(1)(D) required disclosure of even an oral report.
Accordingly he sought the sanction of exclusion, and now
appeals from the court's refusal.
Defendant argues that although we have never
decided the matter of oral reports, certain dictum in United
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States v. Tejada, 886 F.2d 483, 486 (1st Cir. 1989),
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indicates that we would lean in that direction. We need not,
however, reach that question. The court properly found that
defense counsel's knowledge as displayed in cross-examining,
and his failure to ask for a continuance or to offer any
suggestion of prejudice, showed that no prejudice was
suffered. Even if the burden be thought to be on the
government we find no abuse of discretion in admitting the
evidence. United States v. Shue, 766 F.2d 1122, 1135 (7th
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Cir. 1985); United States v. Glaze, 643 F.2d 549, 552 (8th
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Cir. 1981).
Sentencing
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States, 114 S. Ct. 145 (1993); United States v. Martinez, 912
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F.2d 419, 420-21 (10th Cir. 1990); United States v. Buggs,
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904 F.2d 1070, 1075 (7th Cir. 1990) (same); United States v.
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York, 830 F.2d 885, 891 (8th Cir. 1987) (same), cert. denied,
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484 U.S. 1074 (1988). Compare Commonwealth v. Sampson, 383
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Mass. 750, 759, 422 N.E.2d 450, 454-55 (1981) (emphasizing
capability).
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The number and variety of the charges against
defendant are demonstrated by the government's extensive
brief devoted to sentencing analysis. Defendant was
represented by two, to all appearances competent, attorneys,
who participated throughout. There was a lobby conference on
sentencing, followed by a hearing the next day to resolve the
issues that had not been agreed to. At that time individual
computations and a cumulative sentence were reached. No
objections were voiced. The appeal would raise three
matters: that the court failed to consider the evidence in
finding that defendant had the ability to pay the fine
imposed; that it erred in finding defendant used
sophisticated means to impede discovery of liability for
taxes (U.S.S.G. 2T1.1(b)(2)); and that the evidence did not
warrant a finding that defendant had received in excess of
$10,000 from illegal activity. U.S.S.G. 2T1.1(b)(1).
Objections raised at the lobby conference did not
carry over to the hearing, but merely defined what was there
to be further considered. The fact that neither counsel
voiced objection to the final rulings, and thus saved rights,
is obvious. United States v. Haggert, 980 F.2d 8, 10-11 (1st
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Cir. 1992). The failure is ignored, or blithely sought to be
answered by a simple assertion of "plain error." This
invites an equally abrupt response: Not so fast. Plain
error carries a heavy burden. United States v. Concemi, 957
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F.2d 942, 945 (1st Cir. 1992); United States v. Rosa, 705
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F.2d 1375, 1381 (1st Cir. 1983). Defendant did not begin to
meet it.
Affirmed.
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