43 F.3d 1456 (1st Cir. 1994), 94-1193, U.S. v. Guyon

Docket Nº:94-1193
Citation:43 F.3d 1456
Party Name:UNITED STATES, Appellee, v. Richard GUYON, Defendant, Appellant.
Case Date:December 30, 1994
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 1456

43 F.3d 1456 (1st Cir. 1994)

UNITED STATES, Appellee,

v.

Richard GUYON, Defendant, Appellant.

No. 94-1193

United States Court of Appeals, First Circuit

December 30, 1994

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA1 Rule 36 regarding use of unpublished opinions)

Appeal from the United States District Court for the District of Massachusetts [Hon. Rya W. Zobel, U.S. District Judge ]

Stephen J. Weymouth for appellant.

Kevin J. Cloherty, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief for appellee.

D.Mass.

AFFIRMED.

Before BOUDIN, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

STAHL, Circuit Judge.

Defendant-appellant Richard Guyon appeals his conviction for failure to appear at trial in violation of 18 U.S.C. § 3146(a)(1). We affirm.

I.

BACKGROUND

On June 27, 1991, on the fourth day of his trial on charges of bank fraud in the United States District Court for the District of Massachusetts, Guyon failed to appear. The district court issued a bench warrant for his arrest, and Guyon was apprehended approximately two weeks later in Idaho. Guyon's trial continued without his presence, he was convicted in absentia on the bank-fraud charges, and on December 10, 1991, was sentenced to thirty-months imprisonment. His sentence included a two-level enhancement for obstruction of justice attributed primarily to a finding that Guyon had perjured himself and only incidently to Guyon's flight during trial.

After his arrest in Idaho, Guyon faced additional bank-fraud charges in the United States District Court for the Eastern District of Virginia. On November 4, 1991, he was convicted on these charges and on January 24, 1992, he was sentenced to thirty-seven months imprisonment, to run concurrently with the sentence imposed in the Massachusetts bank-fraud case. The Virginia sentence also included a two- level enhancement for obstruction of justice due to Guyon's flight during the Massachusetts bank-fraud trial.

On May 19, 1993, counsel was appointed to represent Guyon in his appeal of the Massachusetts bank-fraud conviction. 1 Two days later, on May 21, 1993, nearly two years after his flight from the Massachusetts bank-fraud trial, the grand jury returned an indictment against Guyon for failure to appear at that trial in violation of 18 U.S.C. § 3146(a)(1).

Following the indictment, Guyon filed two separate motions, each entitled "Motion to Dismiss Indictment." The first sought dismissal on the grounds of unnecessary delay pursuant to Fed. R. Crim. P. 48(b) ("Rule 48(b)") and the due process clause of the Fifth Amendment, while the second relied on the ground of vindictive and malicious prosecution. After a hearing, the district court denied both motions, reasoning that "while the pre-indictment delay was unquestionably long and the government's justification for it weak," Guyon had nevertheless suffered no prejudice because of it. The court also held that a presumption of vindictive prosecution did not exist where the additional charges brought by the government were unrelated to the substance of the underlying (bank-fraud) charge.

After a bench trial, Guyon was convicted on the failure to appear charge and was sentenced to three years probation with that sentence to commence after completion of the Virginia bank-fraud sentence...

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