U.S. v. Atencio, 78-1530

• Decision Date: 22 November 1978
• Docket Number: No. 78-1530,78-1530
• Citation: 586 F.2d 744
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gilbert Eloy ATENCIO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 744

586 F.2d 744

UNITED STATES of America, Plaintiff-Appellee, v. Gilbert Eloy ATENCIO, Defendant-Appellant.

No. 78-1530.

United States Court of Appeals, Ninth Circuit.

Nov. 22, 1978.

George G. Walker, San Francisco, Cal., for defendant-appellant.

Robert L. Dondero, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before BROWNING and HUG, Circuit Judges, and HOFFMAN, ^* District Judge.

PER CURIAM:

Gilbert Atencio was indicted on two counts of selling cocaine and one count of possessing cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 844. When Atencio failed to appear for trial, he was also indicted for willfully failing to appear for trial in violation of 18 U.S.C. § 3150. He was convicted on all four counts. Atencio appeals only his conviction under 18 U.S.C. § 3150.

Atencio contends the trial court erred in refusing to allow one James Barbic, Atencio's tax consultant, to testify about Atencio's state of mind while a fugitive. The testimony is asserted to be admissible under the "present state of mind" exception to the hearsay rule, Fed.R.Evid. 803(3). Atencio also contends the court erred in failing to instruct the jury on compulsion and duress as a legal excuse for his failure to appear for trial.

In addition to disputing the above contentions, the government argues that this court should apply the concurrent sentence doctrine and decline to grant relief on this appeal. Since we find that the court did not err as to the issues raised by appellant, we need not reach the question of whether the concurrent sentence doctrine is applicable to this case.

On October 3, 1972 Atencio was indicted on the narcotics charges noted above. The charges arose from an undercover investigation by an agent of the Drug Enforcement Administration during the months of August and September of 1972. Since appellant does not appeal his conviction on these counts, it is unnecessary to discuss the facts relating to these offenses. Defense counsel stipulated that the defendant was aware of the February 12, 1973 trial date set for these offenses.

Atencio testified in essence that he had not appeared for trial and had fled to Mexico because he was in fear of his own life and his family's welfare, due to his knowledge that a person named Charles Garcia had put out a contract on his life. Atencio testified he received $45,000 in trust from Garcia while Garcia was in prison, which Atencio invested in real property in Fairfax, California. Soon after Atencio's arrest Garcia purportedly began asking for the return of the money. Atencio was unable to comply with Garcia's demands because the Internal Revenue Service had seized all of Atencio's assets subsequent to his arrest on the narcotics charges. According to Atencio's testimony, his friends advised him that Garcia thought Atencio had taken the money, and one Jan DeBruyn told him Garcia had put a contract out on his life. On February 8, 1973 someone allegedly broke into Atencio's house and stole his briefcase containing personal property and his wallet. The next day Atencio met with his attorney, discussed the trial set for February 12, and made an appointment to meet again the next day. After the meeting with his attorney Atencio drove to his property located in Greenbrae, California, where he observed two men sitting in a parked car. A short time later, as Atencio was leaving the premises, someone took a shot at him, according to his testimony. At this point he panicked and fled, eventually arriving in Mexico. While in Mexico he learned Garcia was still angry with him. About 18 months after entering Mexico, Atencio was arrested on a marijuana charge and incarcerated for 28 months. Upon being acquitted by the Mexican Supreme Court, Atencio was released on August 24, 1977. He then voluntarily returned to the United States and surrendered to the authorities.

On cross examination Atencio admitted that he had never contacted his wife, his attorney or the police, about the burglary, the shooting, or his decision to flee to Mexico.

DeBruyn, who admitted dealing in narcotics, testified he had told Atencio that Garcia had put a contract on his life. The defense also called Barbic, the tax consultant, who testified that Atencio was involved in many legitimate business activities. Barbic visited Atencio in Mexico in 1973 and 1974. Barbic testified that he had discussed with Atencio his reason for hiding in Mexico, however the court sustained an objection to any testimony concerning the content of these conversations.

Evidence introduced by the prosecution showed that a partially burned wallet containing the personal identification of Gilbert Atencio was found near the site of a February 7 plane crash. A police officer guarding the scene of the crash on February 10 was tipped off as to the existence of the wallet by an unidentified female. It was not explained how this wallet found its way to the crash site. Atencio testified that a wallet was stolen from him the day After the crash.

I

The crucial issue on appeal is whether Atencio properly made out a defense of duress to excuse his failure to appear for trial. If appellant was not entitled to an instruction submitting the issue of duress to the jury, then any error concerning the...