United States v. Veilleux

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

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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,

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

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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

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).

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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

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

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

meet it.

Affirmed.

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