Beruflich Dokumente
Kultur Dokumente
issued on February
16, 1993, is
___________
Campbell and Bownes, Senior Circuit Judges.
_____________________
____________________
CAMPBELL,
Defendant/appellant,
conviction
in
the
Senior
Circuit
Judge.
_________________________________
Michael W. Beauchamp,
United
States District
for
the
United
States Treasury
others
18
U.S.C.
the
and for
510(a)(2) and 2.
on appeal:
refusing
check
(1)
credibility
of a
in concluding
than
planning
discretion by
witness; and
clearly erred
abetting
check in violation of
to allow defendant
minimal
aiding and
(2) the
district court
under
U.S.S.G.
involved more
2F1.1(b)(2)(A).
December
4, 1991,
defendant was
indicted and
in violation of
defendant's
first
18 U.S.C.
trial
ended
510(a)(2) and 2.
in
mistrial,
the
After
case
evidence indicated
Revenue Service
that on
mailed a tax
May 4,
1990, the
refund check
in the
Instead, on
May 17,
-3-
the Francos'
refund check in
a checking
account he had
opened two
"Francisco
(sic) D.
Franco."
Underneath
days
The
Franco" and
the endorsements,
which were forged, defendant signed his own name and address.
No other deposits were
zero balance
on June
The account
reached a
was closed
on
Service began an
investigation into
possible
in the negotiation of
check.
the check,
Special
Agent
Rudolph
Rivera
contacted
he had been
Hispanic
that
of his,
Defendant
him.
As
a Hispanic
According to defendant, an
named Joseph
Massey, had
brought the
Defendant claimed
Rivera
Agent Rivera
obtained from
defendant's handwriting.
concluded
that
defendant's
the defendant
After
examining
handwriting was
-4-
Carnes
of
the
Department concerning
interview
with
Lincoln,
the Francos'
defendant in
Rhode
Island,
refund check.
which
Police
After an
defendant repeated
his
man to
whom defendant
the
search was
Joseph
unsuccessful.
Massey and
Detective
obtained Massey's
Carnes
agreement to
located
speak to
In a written statement,
1992,
Massey
admitted
that
recontacted Massey
his
prior
in
written
trial.
He admitted on
convicted once
larceny
for forging
of a motor vehicle.
1, 1991,
defendant went
Massey that
he was in
about the
check
and twice
trouble about a
house and
check.
Hispanic
for
to Massey's wife's
conversation, defendant
story
a welfare
he had been
man.
Massey
told
During
this
agreed because
he
-5-
Defendant
was
denied
permission
to
call
as
testimony primarily
he lived
at the
to impeach
101 Carpenter
Massey's testimony
Street address.
Mrs.
sister, not
although
court
Massey,
she acknowledged
would
not
allow
resided at
having
Mrs.
101 Carpenter
seen Massey
Amaral
to
Street,
there.
testify,
The
saying
seeking to
impeach Massey
on a
"very
collateral" matter.
The jury
was
sentenced
to
returned a
11
imprisonment.
months
defendant
This
appeal
followed.
II.
II.
A.
A.
discretion
when it
contends the
precluded
Street.
authority
that a
witness
as to
Mrs. Amaral
abused its
from taking
Defendant
defendant is
his or her
district court
points
to
entitled to
name and
Supreme
the
at 101
Court
cross-examine a
address.
See Smith v.
___ _____
282
Defendant concedes,
as he must,
-6-
on his address.
of his
Defendant contends,
the value
of Mrs. Amaral's
testimony to
by
persuasive.
It is well established that a party may not present
extrinsic evidence to impeach a witness by contradiction on a
collateral matter.1
____________________
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),
855, 859
169
(4th ed.
1992).
1 McCormack on Evidence
_____________________
Thus, it
witness testifies to a
is often
said that
45, at
when a
United States v. Young, 952 F.2d 1252, 1259 (10th Cir. 1991);
_____________
_____
1 McCormack on Evidence
_____________________
collateral
if "the
litigation
to establish
relevant for a
45, at 170.
matter
a
itself is
fact of
169.
not
relevant in
the
consequence, i.e.,
not
A matter is considered
Stated another
of the
1 McCormack on Evidence
_____________________
way, extrinsic
evidence to
disprove
1384,
1409
contradiction' rule .
trial
court's
exclude
(D.C.
. .
general
evidence 'if
("The
is a particular
power under
Fed.
its probative
'specific
instance of
R.
Evid. 403
value is
the
to
substantially
F.2d at 858;
(1992).
-8-
Massey's credibility by
demonstrating a contradiction on
an
was not
contends that
testimony as
merely collateral,
but was
to Massey's
relevant and
admissible
for a
purpose
other
than
impeaching
Massey's
According
to defendant, Massey's
insistence
which
had originally
been
to shift
to the
Francos'
mailed
culpability for
stealing the
check from
himself to defendant.
But
testify
while a witness's
falsely
is
generally
considered
self-interest or
to
motive to
be
non-
670,
entitled to conclude
by
the "time
this testimony.
over
and
that the
effort"
it would
entail
to
defendant's
first
-9-
trial,
Mrs.
Amaral's
testimony
was
inconclusive.
occasionally
saw Massey,
Street,
that his
but
a truck
brother
Central Falls;
siblings'
at
101 Carpenter
sister paid
whether Massey
there had
least some
Under
the circumstances,
court
abused
proposed
she
the
rent.
lived at
his
its
that
Massey spent
testified
driver, at
and
therefore,
that
She
we
already been
time
cannot say
discretion
in
testimony concerning
at both
testimony
locations.
that the
excluding
district
Mrs.
whether Massey
Amaral's
lived
at 101
district
court
Carpenter Street.
B.
B.
next
argues
minimal
Section
the
that
planning
2F1.1(b)(2)(A),
under
U.S.S.G.
which
governs
2F1.1(b)(2)(A).
offenses
involving
levels.
the offense
Application
Note
level should be
1(f) of
the
increased by
commentary to
U.S.S.G.
planning.
also exists
steps were
-10-
on
the
above-quoted passage,
enhanced
defendant's
planning
on the
investigators
corroborate
basis
error.
for
of defendant's
court's enhancement
clear
offense level
the
district
more
court
than minimal
attempts to
mislead
the
mentioned in
before
______
parties focus
"significant
affirmative
their arguments
steps"
to
on
conceal
a defendant
commits
an offense
for an
enhancement
under
2F1.1(b)(2)(A) to
order for
applied
concealment,
planned
on
apply.
Defendant
significant
there
must be
affirmative
evidence
that
the offense.
The
government, on
that
significant steps to
been
committed will
argues that in
steps
the steps
of
were
to the commission of
conceal an
warrant
to be
contends
offense after
_____
an enhancement
for more
it has
than
minimal planning.
In
planning,
arguing that
defendant
there
most
be some
relies primarily
on
pre-offense
United States v.
______________
-11-
Maciaga, 965
_______
security
guard stole
deposit safe.
told
Cir. 1992).
of cash
In
from the
investigating
authorities
that
Maciaga, a bank
_______
he
bank's night
been
having
than minimal
investigators
conceal
the
constituted
larceny.
false statements to
significant affirmative
In
reversing
steps to
the enhancement,
Seventh Circuit
applied because
a defendant
the
steps to
held
that the
guard's
Id. at 407.
___
false
story to
Circuit in
the
are
of discouraging
more than minimal
unwilling
to go
so
concealment.
It
indicates
that
is
true
the
activity is
far
as
the Seventh
2F1.1(b)(2)(A)
be
investigators
Id. at 408.
___
We
of
The court
where
defendant's
so disassociated from
that
offense
U.S.S.G.
itself
must
the earlier
cover-up
crime as
to
-12-
Crimes of
fraud
often do,
and deceit
by their
very nature
may, and
Thus
defendant here, having put his name and address on the check,
knew
that
he
would
probably
be
later
questioned
by
innocent explanation.
so that
unreasonable to view
itself,
It is not
as integral to
the offense
steps
can properly
be said
to have
That interpretation
which
affirmative steps
offense."
The
application
. . taken
notes,
to conceal
while not
the
conclusive,
than
offense
planning of
necessity to
the
concealment" where,
conceal was so
integral to the
as here,
the
entire scheme.
was far
in Maciaga.
_______
-13-
investigation" by telling a
at 408.
Rather,
defendant recruited a
See id.
_______
friend, Massey,
to
chase
Providence, searching
him
allegedly
sold
the
streets
of
Central Falls
These
on a wild
and
to whom defendant
additional
steps
make
than
those taken
Under such
court
sentence for
lack of any
the
security guard
circumstances, we cannot
clearly
more than
by
erred
in
enhancing
direct evidence
in
story had
of the
been
Concurrence
Concurrence
and
and
Dissent
Dissent
follows.
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.
-15-
Regretfully,
my brothers in
defendant.
This ruling is
based on
planning by the
itself
sentencing
planning" under
offense
circuit.
increase
U.S.S.G.
conduct is
an
Previously,
for
"more
2F1.1(b)(2)
issue of
first
when we have
than
based
minimal
upon
post-
impression in
this
minimal
itself
involved significant
United States v.
_____________
1992)
(transporting
forged
(falsifying
reimbursement
period);
planning.
many
securities
v. Rust,
____
See, e.g.,
__________
into
the
Cir.
United
57 (1st
Cir.
vouchers
submitted
for
travel
United States
_____________
v. Tardiff,
_______
969 F.2d
1283, 1288-89
(1st
Cir.
years to
1992) (falsifying
hide losses in
financial records
for several
(filing false
-1414
bank );
United States v.
_____________
required
defendant's offense,
in
forging the
In
this case,
that the
payees' names on
a stolen
more than
it in
newly-created bank
minimal planning.3
mislead investigators
The
account,
district court
long
after the
provides
for a
offense had
been
committed.
The guideline
two-level
increase
U.S.S.G.
2F1.1(b)(2).
guideline
refer
Application
to
the
Principles,
minimal planning."
explains that,
As
Commentary
for the
the
to
1B1.1,
definition
majority
of
"more than
noted, the
commentary
significant affirmative
steps
were
General
taken
also exists if
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.
-1515
offense, other
3C1.1 (Obstructing or
Justice) applies."
U.S.S.G.
conduct
preceding and
conceal the
offense, fall
and
points
than minimal
correctly
that
Attempts to
considered for
for "more
out
offense.
should not be
increase
involving the
obstructing justice,
purposes of
a sentencing
planning."4
in this
after the
case
The majority
the
defendant's
official
or
investigation
therefore, U.S.S.G.
prosecution
of
the
case
This,
and,
however,
and
not think
the plain
we should disregard
meaning of
words
dictionary
proceeding,
House
as "a
scheme
making, etc.,
Dictionary
of
the
or method
common sense,
when we
"Plan" is defined in
of
acting, doing,
developed in advance."
______________________
English Language
enter the
1480
Random
(2nd
Ed.
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.
-1616
not be
planning," unless
was fabricated
United States v.
______________
there is
as part
some evidence
of the
Maciaga, 965
_______
term "more
than
that the
pre-offense planning.
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
presentence report,
hearing
and
have
and
found
the record
no
evidence
I have examined
of the
that
sentencing
the
defendant
In fact,
friend
until after
after
the offense.5
the investigation
Under the
facts
had begun,
of this
16 months
case,
the
It is
commentary,
contrary to
and it
the
guideline and
completely distorts
word "planning."
I respectfully dissent.
accompanying
the meaning
of the
____________________
5
At
the
sentencing
hearing, the
government
characterized the defendant's friend as "a recruit after the
crime."
-1717