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____________________
*Of the District of Massachusetts, sitting by designation.
Armand P. Veilleux,
indictment
information
and
charging
distribute, in excess of
the
payment
of
sentencing, but
the
pled
conspiracies
to
to
income taxes.
possess,
He
failed
indictment
three
seven count
guilty
This episode
that included
count
and
to
to evade
to appear
for
trying to enter
resulted in a
assaulting a
federal
use of a
and
failing to
statements,
(some $178,000)
and, for good measure, failure to have appeared for the prior
sentencing.
added,
in
indictment.
convictions
all counts
in
the
of the
its admitting
firearm; and
evidence
of the
testing of
the
We
affirm.
Failure to Appear
_________________
18
U.S.C.
3146(a)(1)
defendant knowingly to
defense
lay
circumstances
fall
into two
in
fail to appear
subsection
prevented
made it
(c),
-2-
offense
for sentencing.
"that
. . . appearing."
categories, physical
an
for
His
uncontrollable
"Circumstances"
and mental,
the latter
best
characterized as duress.
physical
prevention.
Uncontrollable
sufficient to produce an
injury or death."
291
(1st
duress
must
S. Ct. 224
(1992).
lost faith in
had
refused
to
Defendant's
v.
furnish
testimony
in
another
Obviously
this must
have meant
the
case
prosecutor
he feared
conduct in
United
______
excluded offer
favorable
that
with
reprisal.
connection with
be
States, 113
______
because
Even
what,
in his
could
not justify
Odufowora,
_________
814
practically put
opinion, would be
a failure
F.2d 73,
an improper
to appear.
74 (1st
appearance
Cir.
sentence, this
United States v.
______________
1987).
for sentencing
on
This would
a
voluntary
basis.
Test Firing
___________
The government
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,
conveyed to defendant.
discovery
had
been
16(a)(1)(D)
required disclosure
Accordingly
he sought
the
No report
He claimed
sought,
of
Fed.
even
sanction of
that, where
R.
an
Crim.
oral
P.
report.
exclusion, and
now
v.
argues
that
although
we
never
886
F.2d
483,
486
(1st
have
Cir.
1989),
We need not,
and his
failure to
suggestion
of
ask for
prejudice,
showed
suffered.
Even if
government
we find no
evidence.
United States v.
_____________
Cir.
the
a continuance
burden
that
or to
no
be thought
abuse of discretion
prejudice
was
to
the
be on
in admitting the
offer any
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
brief
are
demonstrated
devoted
represented
to
by
the
sentencing
government's extensive
analysis.
Defendant
was
and a
were
voiced.
that the
finding
that
imposed;
sophisticated
it
erred
ability
in
finding
impede
raise
to
discovery
No
three
evidence in
pay the
fine
defendant
used
of liability
for
Objections raised
to
reached.
would
the
carry
appeal
individual
means to
taxes (U.S.S.G.
sentence were
The
defendant had
that
warrant a
cumulative
At that time
had received in
U.S.S.G.
excess of
2T1.1(b)(1).
at the lobby
be
further considered.
The
fact that
neither counsel
Cir. 1992).
answered
invites
error
by
a simple
an equally
assertion
of
abrupt response:
-5-
"plain error."
Not
so fast.
This
Plain
(1st Cir.
meet it.
Affirmed.
________
v. Rosa,
____
705
-6-