United States v. Duclos

United States Court of Appeals
For the First Circuit

No. 03-1348
No. 03-2272

UNITED STATES OF AMERICA,

Appellee,

v.

LOUIS DUCLOS, a/k/a LEWIS G. DUCLOS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, U.S. District Judge]

Before

Boudin, Chief Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.

Paul Glickman with whom Glickman Turley LLP was on brief for
appellant.
Peter E. Papps, Assistant United States Attorney, with whom
Thomas P. Colantuono, United States Attorney, was on brief for
appellee.

September 8, 2004
 CAMPBELL, Senior Circuit Judge. This appeal is from the

district court's judgment revoking appellant's term of supervised

release and imprisoning him for thirteen months in addition to a

previously served sentence of incarceration. Appellant also

appeals from the district court's denial of bail pending this

appeal. We hold that as appellant has now completed serving the

complained-of additional term of imprisonment, both appeals are

moot.

I. Background

In 1999, appellant, Louis Duclos, was indicted on two

charges: filing a false statement with the United States Postal

Service, in violation of 18 U.S.C. § 1001 (Supp. IV 1998), and

obstructing correspondence, in violation of 18 U.S.C. § 1702

(1994). After a trial in the United States District Court for the

District of New Hampshire, a jury found Duclos guilty on both

counts. The district court sentenced him to fourteen months

imprisonment, three years of supervised release, and a $200 fine.

Duclos appealed, and this court affirmed the conviction and

sentence. United States v. Duclos, 214 F.3d 27, 34 (1st Cir.

2000).

Duclos fully served his original term of imprisonment,

and his supervised release term of three years began to run in

April of 2000. Duclos' supervised release was plagued with

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difficulties. He tested positive for marijuana metabolites1; he

was arrested for assault2; and he was arrested and charged with

driving while intoxicated. Further, Duclos had contact with the

Milford Police Department that he did not report to Probation.

Consequently, Probation filed on January 13, 2001 a

recommendation that Duclos' supervised release term be revoked,

alleging numerous violations of the conditions of his supervision.

On February 27, 2003, after a hearing, the district court found by

a preponderance of the evidence that Duclos was guilty of several

violations: failing to notify a probation officer within seventy-

two hours of his being arrested or questioned (violation numbers

one and seven); failing to submit a truthful written report for the

month of September, 2001 in violation of 18 U.S.C. § 1001

(violation number two); and failing to refrain from the use of

alcohol (violation number six). Accordingly, the district court

revoked the term of supervised release imposed in Duclos' original

1
Duclos adamantly denied that he had used marijuana and blamed
the result on eating poppy seed bagels that week. The United
States Probation Office ("Probation") requested to the district
court that no action be taken at that time, and the district court
agreed.
2
The charge, Simple Assault-Domestic Violence, was later
dismissed because the victim recanted her statement and absolved
Duclos of any wrongdoing. Again, Probation recommended that no
action be taken at that time, and the district court agreed.

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sentence and imposed upon Duclos in place thereof a thirteen-month

term of imprisonment.3

On March 11, 2003, Duclos appealed from that judgment.

On April 21, 2003, Duclos filed pro se a motion for a stay of the

supervised release revocation and imprisonment. On May 2, 2003,

this court, construing the motion as for bail pending appeal,

denied it without prejudice to refiling in the event that the

district court were to deny an application for release. Duclos

then moved unsuccessfully in the district court for bail pending

appeal.

Duclos filed a bail appeal, which we consolidated with

the pending appeal.4 On October 1, 2003, present defense counsel

was appointed to handle both appeals. Duclos' counsel filed a

brief that addressed only the issue of whether there was sufficient

evidence presented in the revocation proceedings to find Duclos

guilty of violation number two: it did not address the bail

appeal.5 On January 27, 2004, the government filed a brief

3
The district court imposed no additional term of supervised
release, thus leaving Duclos subject to no further supervised
release commitment.
4
Over eight months after filing his appeal and approximately
two months before his release and the March 1st, 2004 oral
argument, Duclos moved for expedited appeal. His motion was denied
for untimeliness. Given the mootness factor, this court might well
have allowed a motion for expedited appeal had it been filed at the
time of the appeal or shortly thereafter.
5
Duclos requested leave to file pro se a memorandum of
clarification and a supplemental brief. We granted leave and have

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addressing both the revocation and bail issues. Duclos, through

counsel, addressed the bail appeal in a reply brief filed on

February 4, 2004.

On February 19, 2004, Duclos finished serving the term of

imprisonment imposed in the judgment revoking his supervised

release. He was freed, therefore, approximately two weeks before

appellate oral argument.6 During argument, Duclos' counsel

contended that Duclos' appeal was not mooted by his release,

arguing that serious collateral consequences flowed from the

allegedly wrongful revocation of his supervised release which this

court could and should remedy by overturning the district court's

judgment. Shortly after oral argument, Duclos filed pro se an

Emergency Motion for Consideration, in which he noted additional

collateral consequences militating against mootness that were not

mentioned during oral argument.7 On March 12, 2004, we entered an

order in which we stated that we would take Duclos' pro se motion

considered the memorandum and brief, in which he preserved the
issue of bail pending appeal.
6
According to the district court's revocation judgment,
Duclos was to surrender for sentence on March 14, 2003. No
explanation has been provided for Duclos' release approximately two
months before the expiration of thirteen months, but neither party
suggests that Duclos has any time remaining to serve.

7
Insofar as the Emergency Motion for Consideration requests
that this court consider the arguments set forth therein, we allow
the motion. As discussed infra, however, we find these arguments
to be without merit.

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under advisement and would rule on it when we issued an opinion on

the merits of the pending appeals.

II. Discussion

The threshold, and as it appears, determinative, issue

here is whether Duclos' completion of his sentence moots his

appeals. Garcia-Velazquez v. Frito-Lay Snacks Caribbean, 358 F.3d

6, 8 (1st Cir. 2004) ("In every case, we are required to satisfy

ourselves of jurisdiction.") (citation omitted). We hold that it

does.

Article III, Section 2 of the United States Constitution

limits our subject-matter jurisdiction to live cases or

controversies. See Spencer v. Kemna, 523 U.S. 1, 7 (1998). This

"case-or-controversy requirement" means that parties "'must

continue to have a personal stake in the outcome'" through all the

stages of judicial proceedings, trial and appellate. See id.

(quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78

(1990)). An appellant must have "suffered, or be threatened with,

an actual injury traceable to the defendant and likely to be

redressed by a favorable judicial decision." Lewis, 494 U.S. at

477.

In his bail appeal, Duclos requested that he be released

from custody on bail during the pendency of his appeal. As Duclos

has been released, the relief requested in his bail appeal has

become extraneous. Accordingly, his bail appeal no longer

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satisfies the case-or-controversy requirement, having become

altogether moot. We now turn to his lead appeal.

In his lead appeal, Duclos challenges the district

court's determination that he failed to submit to Probation a

truthful written report for the month of September, 2001 in

violation of 18 U.S.C. § 1001 (violation number two). This, among

others, was the basis for the revocation of his supervised release

and the imposition of additional incarceration. A defendant's

ongoing incarceration, parole, or supervised release can satisfy

the case-or-controversy requirement. Spencer, 523 U.S. at 7-8;

United States v. Molak, 276 F.3d 45, 48 (1st Cir. 2002) ("Just as

a parolee would have a continuing stake in the outcome of a

challenge to the underlying conviction and sentence because of the

restriction imposed by the terms of the parole, so too a convicted

defendant who is under an ongoing sentence of supervised release

has a continuing stake in the outcome of a challenge to the

underlying conviction and sentence.") (citations omitted). When a

defendant has completed his or her sentence, however, the relevant

inquiry is whether the defendant still suffers "collateral

consequences," which are considered redressable injuries satisfying

the case-or-controversy requirement. Spencer, 523 U.S. at 7-8.

The Supreme Court has long held that when a defendant

appeals from a criminal conviction, courts are to presume the

existence of collateral consequences. Sibron v. New York, 392 U.S.

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40, 55 (1968). In Spencer, however, the Court declined to extend

this presumption to an appeal taken from the revocation of parole.

523 U.S. at 13. Since Spencer, courts, including this one, have

applied Spencer's holding to appeals from revocations of supervised

release. United States v. Mazzillo, 373 F.3d 181, 182-83 (1st Cir.

2004) (per curiam) ("An appeal from an order revoking supervised

release is ordinarily moot if the sentence is completed before the

appeal is decided.") (citations omitted); United States v.

Kissinger, 309 F.3d 179, 181-82 (3d Cir. 2002); United States v.

Meyers, 200 F.3d 715, 722-23 (10th Cir. 2000); United States v.

Clark, 193 F.3d 845, 847-48 (5th Cir. 1999) (per curiam); United

States v. Probber, 170 F.3d 345, 347-49 (2d Cir. 1999). As the

current appeal is not from Duclos' underlying conviction but only

from the revocation of his supervised release term and the

substitution therefor of a term of imprisonment, we do not presume

the existence of collateral consequences. See Mazzillo, 373 F.3d

at 182-83. Rather, we require appellant to show the existence of

actual consequences of sufficient substance to establish an ongoing

case or controversy.

Duclos contends that the revocation of his supervised

release and his subsequent imprisonment resulted in specific

injuries that constitute actual collateral consequences. First, he

argues that the harm to his reputation caused by the revocation

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constitutes a cognizable collateral consequence. We disagree.

Spencer rejected an identical argument:

The dissent asserts that "a finding that an
individual has committed a serious felony"
renders the "interest in vindicating . . .
reputation . . . constitutionally sufficient"
to avoid mootness. We have obviously not
regarded it as sufficient in the past -- even
when the finding was not that of a parole
board, but the much more solemn condemnation
of a full-dress criminal conviction. For that
would have rendered entirely unnecessary the
inquiry into concrete collateral consequences
of conviction in many of our cases and
unnecessary as well (at least as to felony
convictions) Sibron's presumption of
collateral consequences. Of course there is
no reason in principle for limiting the
dissent's novel theory to felonies: If
constitutionally adequate damage to reputation
is produced by a parole board's finding of one
more felony by a current inmate who has spent
six of the last seven years in custody on
three separate felony convictions, surely it
is also produced by the criminal misdemeanor
conviction of a model citizen. Perhaps for
obvious reasons, the damage to reputation upon
which the dissent would rest its judgment has
not been asserted before us by petitioner
himself.

523 U.S. at 16 n.8 (citations omitted). Following Spencer, we

conclude that any harm to Duclos' reputation does not constitute a

sufficient consequence collateral to his supervised release

revocation and imprisonment.

Second, Duclos argues that the revocation may or will

lead to the enhancement of any future sentences he may suffer under

the United States Sentencing Guidelines. This argument fails. To

be sure, under the Guidelines, Duclos could receive an enhancement

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to his sentence if he were to be convicted of another federal

crime. See, e.g., U.S.S.G. § 4A1.1(e) (adding points if defendant

committed the instant offense less than two years after release

from sentence of imprisonment exceeding sixty days); Meyers, 200

F.3d at 720 (after analyzing § 4A1.1, concluding, "[i]n short, the

revocation of Meyers' supervised release status and resulting

sentence lengthened the amount of time in which he is subject to a

potential additional penalty imposed by the guidelines"). Spencer,

however, rejected as too speculative the argument that the

possibility that an order of revocation could be used to increase

a sentence in a future proceeding was a collateral consequence

because "it was contingent upon respondents' violating the law,

being caught and convicted." 523 U.S. at 986-87. While Spencer

was decided in the context of revocation of parole, we believe its

logic applies with equal force here. See U.S.S.G. § 4A1.2(k)

(failing to distinguish between revocation of parole and revocation

of supervised release in calculation of criminal history points);

Meyers, 200 F.3d at 720-22.

Third, Duclos asserts that the revocation and

incarceration rendered him "incapable of complying with an Offer

and Compromise Agreement made with the Internal Revenue Service

pertaining to income taxes." This inability, he alleges, caused

the IRS to find him in default of his agreement to timely pay taxes

that were assessed between 1996 and 2001. He contends that a

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vacation of the guilty finding as to violation number two could be

a "key factor" in convincing the IRS to reinstate his agreement and

relinquish his debt. We do not believe this scenario, even if

accurate, would cause the revocation to have continuing collateral

consequences. The continued effect of the revocation upon the tax

issues is too remote and speculative. Cf. Clark, 193 F.3d at 847-

48 (rejecting appellant's claim that financial and physical harm

caused by extension of sentence constituted collateral consequences

because the "injuries" are "independent"). Spencer rejected a

somewhat stronger argument of this sort. There, the petitioner

argued that the revocation was a collateral consequence because, so

long as the revocation stood, he was effectively foreclosed from

pursuing a damages action under 42 U.S.C. § 1983. 523 U.S. at 17.

The Court rejected the argument, inter alia, because it was based

on the faulty notion that such a damages action "must always and

everywhere be available." Spencer, 523 U.S. at 17. Here, it is

likewise incorrect to believe that Duclos has suffered a cognizable

injury by his not being provided with a further opportunity to

challenge the judgment of revocation so as -- if successful -- to

seek relief from the IRS in a wholly different matter, as to which

the revocation is, at best, tangential.

Lastly, Duclos argues that the diminishment in his future

credibility as a witness constitutes a collateral consequence of

the revocation. In particular, Duclos alleges that he has been

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summoned by the State of New Hampshire to testify on behalf of the

state in connection with a criminal case against an individual8.

He further alleges that he will be filing a civil suit against this

individual in an attempt to recover $25,000 that the latter has

allegedly stolen. Duclos contends that the revocation will be used

as a means to "savage his credibility" in both proceedings and,

thus, constitutes a collateral consequence. We do not find this

argument persuasive. In Spencer, the Court rejected a similar

argument:

Moreover, as to the possibility that
petitioner (or a witness appearing on his
behalf) would be impeached with the parole
revocation, it is far from certain that a
prosecutor or examining counsel would decide
to use the parole revocation (a "discretionary
decision" similar to those of the sentencing
judge and employer discussed in Lane, supra,
455 U.S. 624 at 632-633); and, if so, whether
the presiding judge would admit it,
particularly in light of the far more reliable
evidence of two past criminal convictions that
would achieve the same purpose of impeachment,
see State v. Comstock, 647 S.W.2d 163, 165
(Mo. App. 1983).

532 U.S. at 16. Duclos' underlying criminal conviction, which has

not been challenged here, was, inter alia, for filing a false

statement with the United States Postal Service. It, therefore,

directly impugns his credibility as opposed to whatever effect

would be caused by a factfinder's further knowledge that his

8
While Duclos names the individual in his pleadings, we see no
reason to do so here.

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supervised release term has been revoked. See Fed. R. Evid.

609(a)(2) (for purpose of attacking credibility of a witness

"evidence that any witness has been convicted of a crime shall be

admitted if it involved dishonesty or false statement, regardless

of the punishment"). Thus, even assuming that Duclos becomes a

witness, it is questionable whether examining counsel would bother

to use the revocation to impeach him rather than or in addition to

his underlying conviction. Any harm to his credibility from the

revocation is too merely cumulative and speculative to amount to a

separate collateral consequence.

We hold that Duclos' lead appeal does not satisfy the

case-or-controversy requirement and is therefore moot. As both of

Duclos' appeals are moot, they are DISMISSED.

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