U.S.A. v. Duclos, 99-1758

Decision Date08 March 2000
Docket NumberNo. 99-1758,99-1758
Citation214 F.3d 27
CourtU.S. Court of Appeals — First Circuit

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE. Hon. Joseph A. DiClerico, Jr., U.S. District Judge. [Copyrighted Material Omitted] 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.

Before Stahl, Circuit Judge, Bownes, Senior Circuit Judge, and Lynch, Circuit Judge.

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 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 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."

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

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 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 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 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...

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