United States v. Gilbert Eloy Atencio

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 Barbie, Atencio’s tax consultant, to testify about Ateneio’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,…