February 24, 1993 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1944
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL W. BEAUCHAMP,
Defendant, Appellant.
ERRATA SHEET
The opinion of this Court issued on February 16, 1993, is
amended as follows:
On page 16, last line of footnote 4, replace "mislead" with
"misled".
February 16, 1993 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1944
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL W. BEAUCHAMP,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Breyer, Chief Judge,
Campbell and Bownes, Senior Circuit Judges.
David L. Martin, by Appointment of the Court, for appellant.
Lawrence D. Gaynor, Assistant United States Attorney, with whom
Lincoln C. Almond, United States Attorney, was on brief for the United
States.
February 16, 1993
CAMPBELL, Senior Circuit Judge.
Defendant/appellant, Michael W. Beauchamp, appeals from his
conviction in the United States District Court for the
District of Rhode Island for uttering and publishing a forged
United States Treasury check and for aiding and abetting
others in uttering and publishing the check in violation of
18 U.S.C. 510(a)(2) and 2. Defendant raises two arguments
on appeal: (1) the district court abused its discretion by
refusing to allow defendant to present testimony impeaching
the credibility of a witness; and (2) the district court
clearly erred in concluding that the offense involved more
than minimal planning under U.S.S.G. 2F1.1(b)(2)(A).
Finding no error, we affirm.
I.
On December 4, 1991, defendant was indicted and
charged with uttering and publishing a forged treasury check
and aiding and abetting others in uttering and publishing the
check in violation of 18 U.S.C. 510(a)(2) and 2. After
defendant's first trial ended in a mistrial, the case
proceeded to trial again on May 18, 1992.
The evidence indicated that on May 4, 1990, the
Internal Revenue Service mailed a tax refund check in the
amount of $2006.20 to Francisca and Domingo Franco of Central
Falls, Rhode Island. The Francos never received their check.
Instead, on May 17, 1990, defendant deposited the Francos'
-3-
refund check in a checking account he had opened two days
earlier at a Fleet Bank branch in Lincoln, Rhode Island. The
back of the refund check was endorsed "Domingo Franco" and
"Francisco (sic) D. Franco." Underneath the endorsements,
which were forged, defendant signed his own name and address.
No other deposits were made to the account, which reached a
zero balance on June 5, 1990. The account was closed on
July 16, 1990.
In May of 1991, the Providence office of the United
States Secret Service began an investigation into possible
fraud in the negotiation of the Francos' refund check. As
defendant's name and address were on the back of the check,
Special Agent Rudolph Rivera contacted him. Defendant
admitted to having signed his name on the back of the check,
but stated that he had been handed the check by a Hispanic
man as partial payment for a car. According to defendant, an
acquaintance of his, named Joseph Massey, had brought the
Hispanic man to defendant to buy the car. Defendant claimed
that the Hispanic man had identified himself as the payee on
the refund check.
Special Agent Rivera obtained from the defendant
exemplars of the defendant's handwriting. After examining
these, Rivera concluded that defendant's handwriting was
dissimilar from the forged signatures.
-4-
In late July, 1991, Fleet Bank contacted Detective
William Carnes of the Lincoln, Rhode Island, Police
Department concerning the Francos' refund check. After an
interview with defendant in which defendant repeated his
story with minor variations, defendant, Detective Carnes, and
another police officer traveled to Central Falls in search of
the Hispanic man to whom defendant had allegedly sold the
car, as well as to Union Avenue in Providence to search for
an "Italian guy" who allegedly had sold the car to defendant.
Their search was unsuccessful. Detective Carnes located
Joseph Massey and obtained Massey's agreement to speak to
Special Agent Rivera about the case. In a written statement,
Massey corroborated defendant's story about the Hispanic man.
After federal investigators recontacted Massey in
February 1992, Massey admitted that his prior written
statement was false. Massey testified for the government at
trial. He admitted on direct examination that he had been
convicted once for forging a welfare check and twice for
larceny of a motor vehicle. Massey testified that on August
1, 1991, defendant went to Massey's wife's house and told
Massey that he was in trouble about a check. During this
conversation, defendant asked Massey to tell the police the
story about the Hispanic man. Massey agreed because he
believed defendant was threatening him.
-5-
Defendant was denied permission to call as a
witness Zelmare Amaral, the landlady of 101 Carpenter Street,
Pawtucket, Rhode Island. Defendant sought to introduce Mrs.
Amaral's testimony primarily to impeach Massey's testimony
that he lived at the 101 Carpenter Street address. Mrs.
Amaral had testified at the first trial that Massey's brother
and sister, not Massey, resided at 101 Carpenter Street,
although she acknowledged having seen Massey there. The
court would not allow Mrs. Amaral to testify, saying
defendant was merely seeking to impeach Massey on a "very
collateral" matter.
The jury returned a guilty verdict and defendant
was sentenced to 11 months imprisonment. This appeal
followed.
II.
A. Impeachment on Collateral Matters
Defendant contends the district court abused its
discretion when it precluded Mrs. Amaral from taking the
stand to contradict Massey's testimony that he lived at 101
Carpenter Street. Defendant points to Supreme Court
authority that a defendant is entitled to cross-examine a
witness as to his or her name and address. See Smith v.
Illinois, 390 U.S. 129, 131 (1968); Alford v. United States,
282 U.S. 687, 693 (1931). Defendant concedes, as he must,
that the district court permitted him to cross-examine Massey
-6-
on his address. Defendant contends, however, that the value
of his right to ask Massey where he lives for the purpose of
"exposing falsehood" is vastly diminished if defendant cannot
also present extrinsic evidence demonstrating that Massey has
lied. Defendant additionally argues that, quite apart from
the value of Mrs. Amaral's testimony to impeach Massey by
contradiction, the proffered testimony was relevant to expose
Massey's motive to testify falsely. We find neither argument
persuasive.
It is well established that a party may not present
extrinsic evidence to impeach a witness by contradiction on a
collateral matter.1 E.g., United States v. Pisari, 636 F.2d
1. The government argues that Mrs. Amaral's testimony is
barred by Rule 608(b) of the Federal Rules of Evidence, which
expressly precludes the use of extrinsic evidence solely to
impeach a witness's credibility. The rule states in relevant
part: "Specific instances of the conduct of a witness, for
the purpose of attacking or supporting the witness'
credibility, other than conviction of crime as provided in
rule 609, may not be proved by extrinsic evidence." Like the
general rule barring the use of extrinsic evidence to impeach
a witness on a collateral matter through contradiction, the
purpose of Rule 608(b)'s prohibition of extrinsic evidence is
to avoid holding mini-trials on irrelevant or collateral
matters. E.g., United States v. Ciampaglia, 628 F.2d 632,
641-42 (1st Cir.), cert. denied, 449 U.S. 956 (1980); United
States v. Martz, 964 F.2d 787, 789 (8th Cir.), cert. denied,
61 U.S.L.W. 3435 (1992). In the present context, however, it
is difficult to conceptualize the actual location of Massey's
residence as being a "specific instance of conduct" within
the meaning of Rule 608(b). See United States v. Tarantino,
846 F.2d 1384, 1409 (D.C. Cir.) (Rule 608(b) addresses
conduct indicative of untruthfulness, such as fraudulent and
dishonest behavior), cert. denied, 488 U.S. 867 (1988);
United States v. Opager, 589 F.2d 799, 801 (5th Cir. 1979)
(same). Like the district court, we think guidance is to be
found in the more general rule as to collateral matters.
-7-
855, 859 (1st Cir. 1981); 1 McCormack on Evidence 45, at
169 (4th ed. 1992). Thus, it is often said that when a
witness testifies to a collateral matter, the examiner "must
take [the] answer," i.e., the examiner may not disprove it by
extrinsic evidence. E.g., United States v. Martz, 964 F.2d
787, 789 (8th Cir.), cert. denied, 61 U.S.L.W. 3435 (1992);
United States v. Young, 952 F.2d 1252, 1259 (10th Cir. 1991);
1 McCormack on Evidence 45, at 170. A matter is considered
collateral if "the matter itself is not relevant in the
litigation to establish a fact of consequence, i.e., not
relevant for a purpose other than mere contradiction of the
in-court testimony of the witness." 1 McCormack on Evidence
45, at 169. Stated another way, extrinsic evidence to
disprove a fact testified to by a witness is admissible when
it satisfies the Rule 403 balancing test and is not barred by
any other rule of evidence. See United States v. Tarantino,
846 F.2d 1384, 1409 (D.C. Cir.) ("The 'specific
contradiction' rule . . . is a particular instance of the
trial court's general power under Fed. R. Evid. 403 to
exclude evidence 'if its probative value is substantially
outweighed . . . by considerations of undue delay, [or] waste
of time.'"), cert. denied, 488 U.S. 867 (1988); Pisari, 636
F.2d at 858; 3 Weinstein's Evidence, 607[5], at 607-79, -80
(1992). To the extent Mrs. Amaral's testimony merely went to
-8-
Massey's credibility by demonstrating a contradiction on an
immaterial matter, it was clearly excludible.
Defendant contends that testimony as to Massey's
residence was not merely collateral, but was relevant and
admissible for a purpose other than impeaching Massey's
general character for truthfulness or untruthfulness through
contradiction. According to defendant, Massey's insistence
that he lived at 101 Carpenter Street in Pawtucket and not at
his wife's house on Pine Street in Central Falls, could have
been viewed as an attempt to distance himself from the forged
check, which had originally been mailed to the Francos'
residence in Central Falls. According to defendant, Massey's
alleged falsehood concerning his residence would thus expose
a motive to shift culpability for stealing the check from
himself to defendant.
But while a witness's self-interest or motive to
testify falsely is generally considered to be a non-
collateral issue, United States v. Rios Ruiz, 579 F.2d 670,
673 (1st Cir. 1978) (bias); United States v. Calle, 822 F.2d
1016, 1021 (11th Cir. 1987) (self-interest in testifying), we
think the district court was entitled to conclude that the
"marginal relevance" of Mrs. Amaral's proposed testimony was
outweighed by the "time and effort" it would entail to
present this testimony. As noted by the district judge, who
presided over defendant's first trial, Mrs. Amaral's
-9-
testimony was inconclusive. She testified that she
occasionally saw Massey, a truck driver, at 101 Carpenter
Street, but that his brother and sister paid the rent.
Moreover, as the district court noted, Pawtucket is adjacent
to Central Falls; therefore, whether Massey lived at his
siblings' house in Pawtucket or his wife's house in Central
Falls said little about Massey's personal involvement in the
crime, particularly since there had already been testimony
that Massey spent at least some time at both locations.
Under the circumstances, we cannot say that the district
court abused its discretion in excluding Mrs. Amaral's
proposed testimony concerning whether Massey lived at 101
Carpenter Street.
B. More Than Minimal Planning
Defendant next argues that the district court
clearly erred when it increased defendant's offense level by
two levels, having determined that his offense involved more
than minimal planning under U.S.S.G. 2F1.1(b)(2)(A).
Section 2F1.1(b)(2)(A), which governs offenses involving
fraud or deceit, states that if an offense involves more than
minimal planning, the offense level should be increased by
two levels. Application Note 1(f) of the commentary to
U.S.S.G. 1B1.1 defines what constitutes more than minimal
planning. It states, in part, the following:
"More than minimal planning" also exists
if significant affirmative steps were
-10-
taken to conceal the offense, other than
conduct to which 3C1.1 (Obstructing or
Impeding the Administration of Justice)
applies.
Relying on the above-quoted passage, the district court
enhanced defendant's offense level for more than minimal
planning on the basis of defendant's attempts to mislead
investigators with his false story which he got Massey to
corroborate about a Hispanic man. We review the district
court's enhancement for more than minimal planning only for
clear error. E.g., United States v. Gregorio, 956 F.2d 341,
343 (1st Cir. 1992).
On appeal, both parties focus their arguments on
whether the "significant affirmative steps" to conceal
mentioned in 1B1.1, Application Note 1(f), must take place
before a defendant commits an offense for an enhancement
under 2F1.1(b)(2)(A) to apply. Defendant argues that in
order for the more than minimal planning enhancement to be
applied based on significant affirmative steps of
concealment, there must be evidence that the steps were
planned or at least contemplated prior to the commission of
the offense. The government, on the other hand, contends
that significant steps to conceal an offense after it has
been committed will warrant an enhancement for more than
minimal planning.
In arguing that there most be some pre-offense
planning, defendant relies primarily on United States v.
-11-
Maciaga, 965 F.2d 404 (7th Cir. 1992). In Maciaga, a bank
security guard stole a bag of cash from the bank's night
deposit safe. To deflect suspicion from himself, the guard
told investigating authorities that he had been having
problems with night deposit bags becoming stuck in the chute.
The sentencing judge enhanced the guard's sentence for more
than minimal planning, finding that the false statements to
investigators constituted significant affirmative steps to
conceal the larceny. In reversing the enhancement, the
Seventh Circuit noted that "[w]hen the enhancement has been
applied because a defendant has taken significant steps to
conceal the offense, evidence of some pre-offense planning of
the concealment has been present." Id. at 407. The court
then held that the guard's false story to investigators
amounted to no more than the "'logical' step of discouraging
an investigation," and did not constitute more than minimal
planning. Id. at 408.
We are unwilling to go so far as the Seventh
Circuit in requiring direct evidence of pre-offense planning
of the concealment. It is true that U.S.S.G.
2F1.1(b)(2)(A) indicates that the offense itself must
"involve" more than minimal planning. We recognize there may
be situations where a defendant's subsequent cover-up
activity is so disassociated from the earlier crime as to
make it unreasonable to find that the crime itself "involved"
-12-
more than minimal planning. But we believe the determination
is essentially one of fact for the district court. Crimes of
fraud and deceit by their very nature may, and often do,
compel, quite predictably, later efforts at a cover-up. Thus
defendant here, having put his name and address on the check,
knew that he would probably be later questioned by
authorities, at which time he would necessarily have to offer
some innocent explanation. It is not unreasonable to view
the false story he eventually told, and the elaborate steps
he took to support it, as integral to the original offense
itself, so that the offense can properly be said to have
"involved" this later cover-up activity. That interpretation
is the one most consistent with Application Note 1(f), which
expressly includes within "[m]ore than minimal planning . . .
significant affirmative steps . . . taken to conceal the
offense." The application notes, while not conclusive,
demand considerable deference. United States v. Weston, 960
F.2d 212, 218 (1st Cir. 1992). We are less ready, therefore,
than the Maciaga court to require direct proof of "some pre-
offense planning of the concealment" where, as here, the
necessity to conceal was so integral to the entire scheme.
Maciaga, 965 F.2d at 407 (emphasis deleted).
In the instant case, moreover, defendant's cover-up
was far more elaborate and better planned than in Maciaga.
He did not merely "take the 'logical' step of discouraging an
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investigation" by telling a false story to police. See id.
at 408. Rather, defendant recruited a friend, Massey, to
corroborate his own false story by repeating the same tale to
investigators. Defendant also took investigators on a wild
goose chase throughout the streets of Central Falls and
Providence, searching for the mythical Italian man who sold
him the car and the elusive Hispanic man to whom defendant
allegedly sold the car. These additional steps make
defendant's attempted concealment much more "significant" and
"affirmative" than those taken by the security guard in
Maciaga. Under such circumstances, we cannot say that the
district court clearly erred in enhancing defendant's
sentence for more than minimal planning, regardless of the
lack of any direct evidence that the cover story had been
planned prior to the offense.2
2. This conclusion is further buttressed by the reference in
Application Note 1(f) to the obstruction of justice
enhancement, U.S.S.G. 3C1.1. Application Note 1(f)
expressly provides that significant affirmative steps to
conceal will not constitute more than minimal planning when
3C1.1 applies to the conduct. We think this reference to
3C1.1 reflects implicit recognition that significant
affirmative post-offense steps to conceal can, in certain
circumstances, constitute either more than minimal planning
under 2F1.1(b)(2)(A) or an obstruction of justice under
3C1.1. As the district court recognized, the exclusion in
Application Note 1(f) of conduct to which 3C1.1 applies is
intended to avoid the double counting that would result if
courts treated the same post-offense concealment as both more
than minimal planning and obstruction of justice. See United
States v. Werlinger, 894 F.2d 1015, 1016-17 (8th Cir. 1990)
(defendant's attempt to recruit co-workers to tell false
story to auditors of bank constituted further attempts to
conceal his embezzlement and, therefore, could not constitute
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The judgment of the district court is affirmed.
Concurrence and Dissent
follows.
an obstruction of justice under 3C1.1).
Insofar as our dissenting colleague suggests that the
cover-up here falls exclusively within the definition of
obstructing justice, we note that, according to the
government, defendant's conduct would not have been covered
by 3C1.1, since it did not significantly impede or obstruct
the official investigation or prosecution of the offense.
U.S.S.G. 3C1.1, Application Note 3(g). It was not,
therefore, "conduct to which 3C1.1 . . . applies," quite
apart from the fact that defendant was never charged
thereunder and double-counting was never a question.
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BOWNES, Senior Circuit Judge, concurring and dissenting:
I agree with the court that the district judge did
not abuse his discretion in excluding Mrs. Amaral's proffered
testimony. Regretfully, I cannot agree with my brothers in
approving a two-level increase in the offense level based on
a finding that there was more than minimal planning by the
defendant. This ruling is contrary to the guideline itself
as well as common sense and logic.
A sentencing increase for "more than minimal
planning" under U.S.S.G. 2F1.1(b)(2) based upon post-
offense conduct is an issue of first impression in this
circuit. Previously, when we have found more than minimal
planning for purposes of approving a sentencing increase, the
offense itself involved significant planning. See, e.g.,
United States v. Resurreccion, 978 F.2d 759, 763 (1st Cir.
1992) (transporting forged securities into the United
States); United States v. Rust, 976 F.2d 55, 57 (1st Cir.
1992) (falsifying many travel vouchers submitted for
reimbursement to the State of Massachusetts over a four year
period); United States v. Tardiff, 969 F.2d 1283, 1288-89
(1st Cir. 1992) (falsifying financial records for several
years to hide losses in investment pool); United States v.
Gregorio, 956 F.2d 341, 343-44 (1st Cir. 1992) (filing false
residential mortgage loan documents with a federally insured
-14-
14
bank ); United States v. Fox, 889 F.2d 357, 361 (1st Cir.
1989) (obtaining two fraudulent bank loans). In this case,
neither the district court nor the majority found that the
defendant's offense, forging the payees' names on a stolen
check and then writing his own name and address on the check
in order to deposit it in a newly-created bank account,
required more than minimal planning.3 The district court
enhanced the defendant's offense level based on his attempts
to mislead investigators long after the offense had been
committed.
The guideline provides for a two-level increase
"[i]f the offense involved (A) more than minimal planning[.]"
U.S.S.G. 2F1.1(b)(2). The application notes following the
guideline refer to the Commentary to 1B1.1, General
Application Principles, for the definition of "more than
minimal planning." As the majority noted, the commentary
explains that, "'More than minimal planning' also exists if
significant affirmative steps were taken to conceal the
3. The presentence report prepared by the Rhode Island
probation department recommended the two-level increase for
"more than minimal planning" pursuant to U.S.S.G.
2F1.1(b)(2) based on conduct of the offense: opening a bank
account to deposit the stolen check, depositing the check,
withdrawing all of the funds, and never using the account
again. Defense counsel objected, and the district court
agreed that the conduct relied upon in the presentence report
did not constitute "more than minimal planning." The court
went on to find, however, that the defendant's false story
after the offense involved "more than minimal planning" and
imposed the two-level increase based on that finding.
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15
offense, other than conduct to which 3C1.1 (Obstructing or
Impeding the Administration of Justice) applies." U.S.S.G.
1B1.1, Application Note 1(f). Reading the definition into
the guideline, it seems clear to me that the focus remains on
conduct preceding and involving the offense. Attempts to
conceal the offense, which are planned and occur after the
offense, fall within the definition of obstructing justice,
and should not be considered for purposes of a sentencing
increase for "more than minimal planning."4 The majority
points out correctly that in this case the defendant's
concocted story did not significantly impede or obstruct the
official investigation or prosecution of the case and,
therefore, U.S.S.G. 3C1.1 would not apply. This, however,
does not justify imposing a two-level increase by distorting
the meaning of the "more than minimal planning" guideline.
I do not think we should disregard common sense,
logic, and the plain meaning of words when we enter the
labyrinth of the sentencing guidelines. "Plan" is defined in
the dictionary as "a scheme or method of acting, doing,
proceeding, making, etc., developed in advance." Random
House Dictionary of the English Language 1480 (2nd Ed.
Unabridged 1987) (emphasis added). I agree with the Seventh
4. The presentence report did not recommend an increase
based on obstructing justice, U.S.S.G. 3C1.1. At the
sentencing hearing, the government admitted that the
defendant's story had not misled the investigation.
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16
Circuit that a story concocted after the offense, false as it
may be, should not be included within the term "more than
minimal planning," unless there is some evidence that the
story was fabricated as part of the pre-offense planning.
United States v. Maciaga, 965 F.2d 404, 407-08 (7th Cir.
1992).
In this case, the defendant told a false story, and
recruited a friend to help mislead the investigation more
than a year after he committed the offense. I have examined
the presentence report, and the record of the sentencing
hearing and have found no evidence that the defendant
concocted the story before the offense, but waited until the
investigation began to put his plan into action, as the court
seems to assume. In fact, the defendant did not contact his
friend until after the investigation had begun, 16 months
after the offense.5 Under the facts of this case, the
application of the "more than minimal planning" guideline was
error. It is contrary to the guideline and accompanying
commentary, and it completely distorts the meaning of the
word "planning."
I respectfully dissent.
5 At the sentencing hearing, the government
characterized the defendant's friend as "a recruit after the
crime."
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17