Duclos v. United States

United States Court of Appeals
For the First Circuit
No. 99-1758
UNITED STATES OF AMERICA,
Appellee,
v.
LOUIS DUCLOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Stahl, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lynch, Circuit Judge.
Jean B. Weld, Assistant United States Attorney, with whom
Paul M. Gagnon, United States Attorney, was on brief, for
appellant.
Joseph S. Berman, with whom Berman and Dowell was on brief,
for appellee.
May 31, 2000
BOWNES, Senior Circuit Judge. This is an appeal from
a conviction and sentence imposed by the United States District
Court for the District of New Hampshire. Defendant-Appellant
Louis Duclos offers two grounds for reversal of his conviction
and one claimed error in sentencing. We reject Duclos's claimed
trial errors as having no basis in law or fact and find that the
district court did not abuse its discretion in imposing
sentence. Accordingly, we affirm.
I. Facts
This case involves a relationship gone horribly awry.
While many of the predicate facts are in dispute, this much is
clear: Duclos was involved with a woman named Angela Gillis,
and after that relationship ended, he invested a great deal of
time and energy in searching for her. It is this search that
brought about the events leading to his prosecution.
The specific nature and chronology of the relationship
between Duclos and Gillis is complicated. The full record
(including a host of pro se filings) details the many
vacillations between Duclos and Gillis. The crux of the matter,
however, is that when Gillis left Duclos, she resumed a previous
relationship with Ronald Bossey. Duclos, for his part, simply
would not let go. Over an extended period of time he engaged in
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a pattern of behavior that both the government and Gillis
credibly characterize as stalking.
As part of Duclos's multi-faceted plan to locate Gillis
and rescue her from the clutches of Bossey, as he saw it, Duclos
monitored the post office box that Bossey shared with Gillis.
On September 15, 1997, Duclos filed a change-of-address card in
the United States Post Office in Laconia, New Hampshire, where
Bossey's box was located. The card requested that the United
States Postal Service forward all mail addressed to the post
office box of Ronald Bossey to a new address: Duclos's home
address. Duclos signed the form "Ronald Bossey." Because the
card requested that the change be permanent, Bossey's post
office box was closed, and the lock was changed.
Ten days after diverting Bossey's mail, Duclos
apparently attempted to cancel the forwarding order. Because he
had denoted the earlier change as permanent, he was
unsuccessful.
In late September or early October of 1997, Ronald
Bossey attempted to retrieve mail from his rented box, only to
find that the lock had been changed. Bossey inquired about this
and learned that there had been a permanent change-of-address
request. When the postal clerk compared the signature on the
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change-of-address card with the one on Bossey's driver's
license, it was apparent that the card had been forged.
Soon thereafter, United States Postal Inspector Peter
Keefe obtained the original change-of-address card and
interviewed Bossey, who led him to Duclos. When Keefe spoke to
Duclos, Duclos told Keefe "that he was not going to lie," and
admitted filing the card.
Duclos explained his actions, both to Keefe and later
at trial, by arguing that he had done what he did out of a
desire to protect Gillis. Duclos claimed that he understood
Bossey to be a violent person, who had been dishonorably
discharged from the military and who kept a firearm in his
apartment. Duclos also believed that Bossey had taken money
from Gillis, including a death benefit check due her because of
the death of her husband. Duclos also claimed that he feared
that Gillis, who was pregnant, was using drugs with Bossey.
Apparently, Duclos monitored the post office box for
a number of weeks and then eventually submitted the false
address card. The government presented testimony at trial in
which "[Duclos] said he figured they may have made plans the
prior month to go somewhere and that he would be able to trace
them via the telephone bill of the calls they made."
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A federal grand jury indicted Duclos 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). At trial, Duclos invoked a defense of necessity,
claiming that his actions were taken out of fear for Gillis'
safety and a desire to protect her. The jury rejected these
defenses, convicting him on both counts.
The United States Probation Department recommended a
base offense level of 4, pursuant to U.S.S.G. §§ 2F1.1 and
2H3.3(b). The Department also recommended an increase of two
levels for taking undelivered United States mail, pursuant to
U.S.S.G. § 2B1.1(b)(3)(A), an increase of two levels for more
than minimal planning under U.S.S.G. § 2B1.1(b)(4)(A), and an
increase of two levels for obstruction of justice under U.S.S.G.
§ 3C1.1. Duclos made timely objections to the latter two
enhancements. The trial judge found that Duclos had engaged in
more than minimal planning and accordingly added two levels; the
court declined to increase the sentence for obstruction of
justice. With Duclos's criminal history category of IV, and a
total offense level of 8, the court sentenced him to 14 months,
which was within the guideline range of 10-16 months.
II. Sentencing Appeal
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In his brief on appeal, Duclos devotes the majority of
his argument to his sentencing appeal. Accordingly, we consider
it first. Duclos claims that the district court should not have
imposed the two-level enhancement for more than minimal
planning.
In reviewing a decision to enhance a sentence from the
base offense level, we employ a bifurcated standard of review.
See United States v. Thompson, 32 F.3d 1, 4 (1st Cir. 1994). We
review the legal determination of the guideline's meaning and
scope de novo, see id.; United States v. Brewster, 1 F.3d 51, 54
(1st Cir. 1993), but allow due deference to the district court's
factfinding, reviewing it only for clear error, see Brewster, 1
F.3d at 54; Thompson, 32 F.3d at 4; United States v. Nunez, 146
F.3d 36, 40 (1st Cir. 1998).
The relevant enhancement states: "If the offense
involved more than minimal planning, increase by 2 levels."
U.S.S.G. § 2B1.1(b)(4)(A). Section 2F1.1 of the guidelines,
which applies to violations of 18 U.S.C. § 1001, allows for use
of this enhancement. 1 The Commission provides a gloss on the
1 Duclos offers an argument for the first time on appeal
that the district court should only have considered the
enhancement as it related to the false statement charge.
Setting aside serious questions of waiver, we reject his
contention by pointing to the fact that the two offenses were
properly grouped together under U.S.S.G. § 3D1.2(b), and that
the enhancement may be considered with respect to all relevant
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bare language of the enhancement in Application Note 1(f) to
Section 1B1.1, which states:
"More than minimal planning" means more
planning than is typical for commission of
the offense in a simple form. "More than
minimal planning" also exists if significant
affirmative steps were taken to conceal the
offense . . . . "More than minimal
planning" is deemed present in any case
involving repeated acts over a period of
time, unless it is clear that each instance
was purely opportune. Consequently, this
adjustment will apply especially frequently
in property crimes.
The most recent statement in this circuit on "more than
minimal planning" comes from our decision in United States v.
Phath, 144 F.3d 146 (1st Cir. 1998). In that case, we found
clear error in the district court's imposition of the "more than
minimal planning" enhancement, marking the first time that we
had overturned such an enhancement. See id. at 151. The crime
at issue in Phath was an unsophisticated bank fraud scheme. In
Phath, a stranger approached the defendant in a casino and
offered him money to deposit checks in his bank account and
withdraw cash a short time later when the checks had cleared.
See id. at 147-48. The stranger also asked Phath to find
friends who would do the same. See id. at 148. This was the
conduct. See United States v. Ivery, 999 F.2d 1043, 1046 & n.2
(6th Cir. 1993).
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extent of his crime. The district court in that case applied
the more than minimal planning enhancement, stating: "[T]his is
not an offense in its simplest terms. It has several layers of
intricacy which are designed to conceal the offense itself."
Id. at 150.
We reversed, stating that: "Phath's crime was simple
and short-lived." Id. We rejected the argument proffered by
the government that any crime that is not "purely opportune"
involves more than minimal planning. See id. Instead, we found
dispositive two facts. First, Phath's acts were in no way
"repeated acts over a period of time." Id. Second, Phath took
no "significant affirmative steps to conceal the offense." Id.We suggested that, had the defendant's actions been repeated
acts, we would have then continued the inquiry to determine
whether each repeated action was "purely opportune." See id.With these principles in mind, we consider the instant
case, mindful of the mandate that "[t]he district court's
judgment that an offense involves more than minimal planning is
a factual finding that we overturn only if it is clearly
erroneous." Id. at 149. In this case, the difference between
the defendant's view of the enhancement and the view adopted by
the district court is essentially one of perspective. Duclos
wishes us to view his conduct close-up — that is, he urges us to
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ask whether he engaged in more than minimal planning for the act
of filing the false change-of-address card. The district court,
on the other hand, took a more holistic view, and one we think
more in line with the Guidelines' definition of conduct relevant
to planning the crime. The district court considered the
conduct in light of the entire scheme admittedly engaged in by
Duclos in order to commit the offense.
The district court stated:
The defendant first had to determine
where Mr. Bossie [sic] lived, and that
certainly required time and effort. He then
had to determine that his mail was not being
delivered to his residence. He then had to
determine where the post office was and the
box where Mr. Bossie's mail was being
delivered. He then had to fill out PS Form
3546, which is the forward change notice
form, and file that with the postal
authorities.
The mail was then forwarded. He used,
got whatever information he wanted to from
the mail and then to avoid detection
destroyed mail. He then had to forward a
cancellation notice in order to once again
attempt to avoid detection.
So taking the totality of these
circumstances, it is the opinion of the
Court that having considered the Fath [sic]
case and its ruling[,] that these offenses,
taken together, involved more than minimal
planning.
As the district court suggested, there are crucial differences
from Phath that make Duclos's case distinct. First, Duclos's
case involves an extended course of conduct, or a scheme that
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continued over a significant period of time.2 Second, Duclos
took affirmative steps to cover up his crime. This is a clear
ground for applying the enhancement, see Application Note 1(f)
to § 1B1.1, and the district court's fact-finding on this point
is unassailable. Accordingly, we are unable to say that the
district court's findings of fact and concomitant imposition of
the enhancement were clearly erroneous.
III. Sufficiency of the Evidence
Duclos claims that, in light of his necessity or
justification defense, the jury's verdict was against the weight
of the evidence. He claims that his defense raised a reasonable
doubt that his conduct was willful and knowing. The high
standard for such a challenge is well-known. Duclos must show
that no rational jury could have found him guilty beyond a
reasonable doubt. See United States v. Scharon, 187 F.3d 17, 21
(1st Cir. 1999). We review the sufficiency of the evidence as
a whole, taking the evidence in the light most favorable to the
verdict and taking into account all reasonable inferences, and
resolving all credibility issues in favor of the verdict. See
2 We do not mean to suggest that Duclos's stalking
activities that were not in preparation for the criminal act
render him eligible for a "more than minimal planning"
enhancement. Rather, we focus solely on those of Duclos's
actions that were relevant to obtaining the information
necessary to commit the offense.
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id. The scope of review is over the totality of the evidence,
both direct and circumstantial. See United States v. Woodward,
149 F.3d 46, 56 (1st Cir. 1998), cert. denied 119 S. Ct. 1026(1999).
To prove a false statement in violation of 18 U.S.C.
§ 1001, the government must show that the defendant: (1)
knowingly and willfully, (2) made a statement, (3) in relation
to a matter within the jurisdiction of a department or agency of
the United States, (4) with knowledge of its falsity. See
United States v. Wiener, 96 F.3d 35, 37 (2d Cir. 1996), aff'd
sub nom. Brogan v. United States, 522 U.S. 398 (1998). To prove
obstruction of correspondence in violation of 18 U.S.C. § 1702,
the government must prove that the defendant (1) knowingly took
mail from a post office or authorized depository for mail, (2)
before it was delivered, (3) with the specific intent to
obstruct correspondence or pry into the business or secrets of
another. See United States v. Gaber, 745 F.2d 952, 955 (5th
Cir. 1984).
As a preliminary matter, it is beyond cavil that
Duclos, absent his affirmative defense, admitted the elements of
both crimes. Duclos attempts to dispute his intent, saying that
he committed the act in question so quickly and without thinking
that he did not have time to form the requisite intent. This
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argument, however, confuses intent with premeditation. Duclos
admitted at trial that he knew the nature of his act, and that
he knew what its likely effect would be. This amounts to
intent.
Duclos's more complicated argument on sufficiency of
the evidence involves the question of his affirmative defense.
Duclos notes correctly that his behavior might be excused by the
defense of necessity. This defense, like other justification
defenses, allows a defendant to evade responsibility for
otherwise criminal actions notwithstanding proof of the elements
of the offense. See United States v. Smith, 160 F.3d 117, 123
(2d Cir. 1998). The essence of the defense is that otherwise
criminal conduct may be excused when the defendant commits the
acts in order to avoid a greater evil. In one formulation of
this defense (on which Duclos himself relies in his brief on
appeal), the defense requires that the defendant had no legal
alternative to violating the law; the harm he sought to prevent
was imminent, and a direct, causal relationship is reasonably
anticipated to exist between defendant's actions and the
avoidance of harm.3
3 As the Tenth Circuit has noted, there are differing
formulations of the defense. See United States v. Unser, 165
F.3d 755, 764 (10th Cir.), cert. denied, 120 S. Ct. 40 (1999).
Notably, the Model Penal Code's version of the defense ("Choice
of Evils," in the parlance of the Code) appears to set a higher
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Duclos's sufficiency of the evidence argument is that
his properly alleged affirmative defense was not rebutted by the
government, which, he argues, bore the burden of proving the
non-existence of the defense by a reasonable doubt. Throughout
this opinion, we assume arguendo that Duclos is correct in
assigning the burden of proof at all times to the government.
Duclos's argument, however, is without foundation in the facts
of this case. First, his defense was predicated on his own
testimony that he believed his conduct necessary to avoid harm
to Gillis. The government, however, savaged Duclos's
credibility at trial such that a rational juror might have
rejected his defense based on lack of credibility alone.
Second, Duclos's own testimony undercut his defense. While he
argued that he felt his conduct necessary to avert harm to
Gillis, he also testified repeatedly that he acted on the spur
of the moment, without knowing what he was thinking. The jury
could have concluded from this that he acted upon impulse, and
without the sort of deliberation they might think should
accompany his affirmative defense. Third, the jury heard a vast
bar for defendants. See Model Penal Code § 3.02; see also
Smith, 160 F.3d at 123 & n.3 (noting distinctions between
formulations of the defense). We do not intend our recitation
of this particular formulation to suggest that we adopt it as
the law of the First Circuit. We have accepted the formulation
offered by Duclos only arguendo.
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quantity of evidence about Duclos's stalking of Gillis that
might well have led it to believe that Duclos committed his
crime because he was obsessed with Gillis, not out of a
reasonable belief in her imminent harm. Fourth, the government
provided sufficient evidence on cross-examination for the jury
to find beyond a reasonable doubt that the imminence prong of
the defense was not present.
Accordingly, Duclos's claim of insufficiency of the
evidence must fail.
IV. Jury Instructions
Duclos presents a properly preserved claim of error in
the court's jury instructions. Such a claim is subject to de
novo review. See United States v. Woodward, 149 F.3d 46, 68
(1st Cir. 1998), cert. denied, 119 S. Ct. 1026 (1999). An error
in jury instructions will mandate reversal only when the error
is prejudicial based on a review of the entire record. See
Davet v. Maccarone, 973 F.2d 22, 26 (1st Cir. 1992).
Duclos argues that although the court properly
instructed the jury on the affirmative defenses, the court's
comments immediately after the instruction amounted to an
instruction that shifted the burden of proof on the affirmative
defense to the defendant. The court stated:
A general fear, or an apprehension of danger
that is vague or imprecise or that is not a
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fear of immediate harm or death, is not
sufficient to support the necessity to act
in defense of a third person.
The court then stated:
On this issue [the affirmative defense],
just as on the others, the burden is on the
government to prove the defendant's guilt
beyond a reasonable doubt. To find Louis
Duclos guilty, therefore, in addition to
finding beyond a reasonable doubt each of
the elements of the two offenses charged,
you must conclude beyond a reasonable doubt
that when he committed the acts charged in
the indictment, one, no such harm existed or
it was not immediate; or two, he did not
have a well-grounded belief that the harm
existed; or three, there were reasonable
alternatives to prevent such harm.
(emphasis added).
The only instructions that came between the objected-to
instruction and the above-quoted burden of proof instruction was
a proper continuation of the affirmative defense instruction.
Accordingly, the above instruction corrected immediately any
misimpression the jury might have had with respect to the burden
of proof. We are therefore unable to say that any error in the
instruction, if there was indeed any error at all, was
prejudicial.
Affirmed.
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