
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-
