United States v. Veilleux

Procedural entryThis page is a short order in United States v. Veilleux. Read the opinion of the Court — 40 F.3d 9 →

Court of Appeals for the First Circuit·Decided November 16, 1994·No. 93-1925·Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 93-1925
No. 93-1926

UNITED STATES OF AMERICA,

Appellee,

v.

ARMAND PAUL VEILLEUX,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge] ___________________

____________________

Before

Boudin, Circuit Judge, _____________

Aldrich, Senior Circuit Judge, ____________________

and Young,* District Judge. ______________

____________________

Peter M. Dempsey on brief for appellant. ________________
Margaret D. McGaughey, Assistant United States Attorney, Jay P. ______________________ _______
McCloskey, United States Attorney, and Nicholas M. Gess, Assistant __________ _________________
United States Attorney, on brief for appellee.

____________________

November 14, 1994
____________________

____________________

*Of the District of Massachusetts, sitting by designation.

ALDRICH, Senior Circuit Judge. Armand P. Veilleux, ____________________

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 _________________

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

-2-

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, __ _____________ ______

291 (1st Cir.) cert. denied sub nom. Sanchez v. United ________________________ _______ ______

States, 113 S. Ct. 224 (1992). Defendant's excluded offer ______

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. ______________

Odufowora, 814 F.2d 73, 74 (1st Cir. 1987). This would _________

practically put appearance for sentencing on a voluntary

basis.

Test Firing ___________

The government apparently conceded that it had the

burden of showing that defendant's firearm was operable,2

____________________

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, ___ ____ ______________ ____
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 ___________
designed to fire), cert. denied sub nom. Crawford v. United ____________ ______________________ ________ ______

-3-

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.

Free access — add to your briefcase to read the full text and ask questions with AI

USCA1 Opinion




UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 93-1925
        No. 93-1926

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                ARMAND PAUL VEILLEUX,

                                Defendant, Appellant.

                                 ____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. D. Brock Hornby, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                                Boudin, Circuit Judge,
                                        _____________

                            Aldrich, Senior Circuit Judge,
                                     ____________________

                             and Young,* District Judge.
                                         ______________

                                 ____________________

Peter M. Dempsey on brief for appellant.
            ________________
            Margaret D.  McGaughey, Assistant United  States Attorney, Jay  P.
            ______________________                                     _______
        McCloskey,  United States  Attorney, and  Nicholas M.  Gess, Assistant
        __________                                _________________
        United States Attorney, on brief for appellee.

                                 ____________________

                                  November 14, 1994
                                 ____________________

____________________

        *Of the District of Massachusetts, sitting by designation.



ALDRICH, Senior Circuit Judge.  Armand P. Veilleux,
                               ____________________

            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
                                  _________________

                      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

-2-



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,
                               __  _____________    ______

            291  (1st  Cir.) cert.  denied  sub  nom. Sanchez  v.  United
                             ________________________ _______      ______

            States, 113  S. Ct. 224  (1992).  Defendant's  excluded offer
            ______

            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.
                                                        ______________

            Odufowora,  814  F.2d 73,  74 (1st  Cir.  1987).   This would
            _________

            practically put  appearance  for sentencing  on  a  voluntary

            basis.

                                     Test Firing
                                     ___________

                      The government  apparently conceded that it had the

            burden  of showing  that defendant's  firearm was  operable,2

                                
            ____________________

            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,
                          ___ ____ ______________    ____
            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
            ___________
            designed  to fire), cert. denied  sub nom. Crawford v. United
            ____________        ______________________ ________    ______

                                         -3-



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
                                                                   ______

            States  v.  Tejada,  886  F.2d  483,  486  (1st  Cir.  1989),
            ______      ______

            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
                        _____________     ____

            Cir.  1985); United States v.  Glaze, 643 F.2d  549, 552 (8th
                         _____________     _____

            Cir. 1981).

                                      Sentencing
                                      __________

                                
            ____________________

            States, 114 S. Ct. 145 (1993); United States v. Martinez, 912
            ______                         _____________    ________
            F.2d 419,  420-21 (10th Cir.  1990); United States  v. Buggs,
                                                 _____________     _____
            904  F.2d 1070, 1075 (7th Cir. 1990) (same); United States v.
                                                         _____________
            York, 830 F.2d 885, 891 (8th Cir. 1987) (same), cert. denied,
            ____                                            ____________
            484  U.S. 1074 (1988).  Compare  Commonwealth v. Sampson, 383
                                    _______  ____________    _______
            Mass. 750,  759, 422  N.E.2d 450, 454-55  (1981) (emphasizing
            capability).

                                         -4-



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
                         _____________    _______

            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
                                            _____________    _______

-5-



F.2d 942, 945  (1st Cir.  1992); United States  v. Rosa,  705
                                             _____________     ____

            F.2d 1375,  1381 (1st Cir. 1983).  Defendant did not begin to

            meet it.

                      Affirmed.
                      ________

-6-