          United States Court of Appeals
                     For the First Circuit


No. 99-1758

                   UNITED STATES OF AMERICA,

                           Appellee,

                              v.

                         LOUIS DUCLOS,

                     Defendant, Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF NEW HAMPSHIRE

     [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]



                            Before

                     Stahl, Circuit Judge,

                 Bownes, Senior Circuit Judge,

                   and Lynch, Circuit Judge.


     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.
May 31, 2000
            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




                                       -3-
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




                                       -4-
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."




                                           -5-
            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


                                      -6-
            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


    1  Duclos offers an argument for the first time on appeal
that the district court should only have considered the
enhancement as it related to the false statement charge.
Setting aside serious questions of waiver, we reject his
contention by pointing to the fact that the two offenses were
properly grouped together under U.S.S.G. § 3D1.2(b), and that
the enhancement may be considered with respect to all relevant

                                   -7-
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



conduct. See United States v. Ivery, 999 F.2d 1043, 1046 & n.2
(6th Cir. 1993).

                               -8-
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


                                      -9-
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
          certainly required time and effort. He then
          had to determine that his mail was not being
          delivered to his residence. He then had to
          determine where the post office was and the
          box where Mr. Bossie's mail was being
          delivered. He then had to fill out PS Form
          3546, which is the forward change notice
          form, and file that with the postal
          authorities.
                 The mail was then forwarded. He used,
          got whatever information he wanted to from
          the mail and then to avoid detection
          destroyed mail.    He then had to forward a
          cancellation notice in order to once again
          attempt to avoid detection.
                 So taking the totality of these
          circumstances, it is the opinion of the
          Court that having considered the Fath [sic]
          case and its ruling[,] that these offenses,
          taken together, involved more than minimal
          planning.
As the district court suggested, there are crucial differences

from Phath that make Duclos's case distinct.            First, Duclos's

case involves an extended course of conduct, or a scheme that



                                 -10-
continued over a significant period of time.2                Second, Duclos

took affirmative steps to cover up his crime.            This is a clear

ground for applying the enhancement, see Application Note 1(f)

to § 1B1.1, and the district court's fact-finding on this point

is unassailable.     Accordingly, we are unable to say that the

district court's findings of fact and concomitant imposition of

the enhancement were clearly erroneous.

         III. Sufficiency of the Evidence

         Duclos     claims   that,   in   light   of   his    necessity    or

justification defense, the jury's verdict was against the weight

of the evidence.    He claims that his defense raised a reasonable

doubt that his conduct was willful and knowing.                   The high

standard for such a challenge is well-known.            Duclos must show

that no rational jury could have found him guilty beyond a

reasonable doubt.    See United States v. Scharon, 187 F.3d 17, 21

(1st Cir. 1999).    We review the sufficiency of the evidence as

a whole, taking the evidence in the light most favorable to the

verdict and taking into account all reasonable inferences, and

resolving all credibility issues in favor of the verdict.                 See



    2  We do not mean to suggest that Duclos's stalking
activities that were not in preparation for the criminal act
render him eligible for a "more than minimal planning"
enhancement.   Rather, we focus solely on those of Duclos's
actions that were relevant to obtaining the information
necessary to commit the offense.

                                 -11-
id.   The scope of review is over the totality of the evidence,

both direct and circumstantial.            See United States v. Woodward,

149 F.3d 46, 56 (1st Cir. 1998), cert. denied 119 S. Ct. 1026

(1999).

             To prove a false statement in violation of 18 U.S.C.

§   1001,    the    government   must      show    that      the   defendant:    (1)

knowingly and willfully, (2) made a statement, (3) in relation

to a matter within the jurisdiction of a department or agency of

the United States, (4) with knowledge of its falsity.                            See

United States v. Wiener, 96 F.3d 35, 37 (2d Cir. 1996), aff'd

sub nom. Brogan v. United States, 522 U.S. 398 (1998).                    To prove

obstruction of correspondence in violation of 18 U.S.C. § 1702,

the government must prove that the defendant (1) knowingly took

mail from a post office or authorized depository for mail, (2)

before      it   was   delivered,    (3)    with    the      specific   intent    to

obstruct correspondence or pry into the business or secrets of

another.         See United States v. Gaber, 745 F.2d 952, 955 (5th

Cir. 1984).

             As    a   preliminary   matter,       it   is    beyond    cavil   that

Duclos, absent his affirmative defense, admitted the elements of

both crimes.       Duclos attempts to dispute his intent, saying that

he committed the act in question so quickly and without thinking

that he did not have time to form the requisite intent.                         This


                                      -12-
argument, however, confuses intent with premeditation.           Duclos

admitted at trial that he knew the nature of his act, and that

he knew what its likely effect would be.              This amounts to

intent.

            Duclos's more complicated argument on sufficiency of

the evidence involves the question of his affirmative defense.

Duclos notes correctly that his behavior might be excused by the

defense of necessity.       This defense, like other justification

defenses,    allows    a   defendant   to   evade   responsibility    for

otherwise criminal actions notwithstanding proof of the elements

of the offense.       See United States v. Smith, 160 F.3d 117, 123

(2d Cir. 1998).       The essence of the defense is that otherwise

criminal conduct may be excused when the defendant commits the

acts in order to avoid a greater evil.          In one formulation of

this defense (on which Duclos himself relies in his brief on

appeal), the defense requires that the defendant had no legal

alternative to violating the law; the harm he sought to prevent

was imminent, and a direct, causal relationship is reasonably

anticipated    to   exist    between   defendant's    actions   and   the

avoidance of harm.3


    3  As the Tenth Circuit has noted, there are differing
formulations of the defense. See United States v. Unser, 165
F.3d 755, 764 (10th Cir.), cert. denied, 120 S. Ct. 40 (1999).
Notably, the Model Penal Code's version of the defense ("Choice
of Evils," in the parlance of the Code) appears to set a higher

                                  -13-
           Duclos's sufficiency of the evidence argument is that

his properly alleged affirmative defense was not rebutted by the

government, which, he argues, bore the burden of proving the

non-existence of the defense by a reasonable doubt.                   Throughout

this opinion, we assume arguendo that Duclos is correct in

assigning the burden of proof at all times to the government.

Duclos's argument, however, is without foundation in the facts

of this case.       First, his defense was predicated on his own

testimony that he believed his conduct necessary to avoid harm

to   Gillis.        The    government,        however,      savaged    Duclos's

credibility at trial such that a rational juror might have

rejected    his    defense     based    on    lack   of   credibility     alone.

Second, Duclos's own testimony undercut his defense.                   While he

argued that he felt his conduct necessary to avert harm to

Gillis, he also testified repeatedly that he acted on the spur

of the moment, without knowing what he was thinking.                   The jury

could have concluded from this that he acted upon impulse, and

without    the    sort    of   deliberation      they     might   think   should

accompany his affirmative defense.             Third, the jury heard a vast



bar for defendants.    See Model Penal Code § 3.02; see also
Smith, 160 F.3d at 123 & n.3 (noting distinctions between
formulations of the defense). We do not intend our recitation
of this particular formulation to suggest that we adopt it as
the law of the First Circuit. We have accepted the formulation
offered by Duclos only arguendo.

                                       -14-
quantity of evidence about Duclos's stalking of Gillis that

might well have led it to believe that Duclos committed his

crime   because   he    was     obsessed     with   Gillis,    not    out    of    a

reasonable belief in her imminent harm.               Fourth, the government

provided sufficient evidence on cross-examination for the jury

to find beyond a reasonable doubt that the imminence prong of

the defense was not present.

           Accordingly, Duclos's claim of insufficiency of the

evidence must fail.

           IV. Jury Instructions

           Duclos presents a properly preserved claim of error in

the court's jury instructions.              Such a claim is subject to de

novo review.      See United States v. Woodward, 149 F.3d 46, 68

(1st Cir. 1998), cert. denied, 119 S. Ct. 1026 (1999).                 An error

in jury instructions will mandate reversal only when the error

is prejudicial based on a review of the entire record.                           See

Davet v. Maccarone, 973 F.2d 22, 26 (1st Cir. 1992).

           Duclos      argues    that      although    the    court    properly

instructed the jury on the affirmative defenses, the court's

comments   immediately        after   the    instruction      amounted      to    an

instruction that shifted the burden of proof on the affirmative

defense to the defendant.          The court stated:

           A general fear, or an apprehension of danger
           that is vague or imprecise or that is not a

                                      -15-
             fear of immediate harm or death, is not
             sufficient to support the necessity to act
             in defense of a third person.

The court then stated:

             On this issue [the affirmative defense],
             just as on the others, the burden is on the
             government to prove the defendant's guilt
             beyond a reasonable doubt.    To find Louis
             Duclos guilty, therefore, in addition to
             finding beyond a reasonable doubt each of
             the elements of the two offenses charged,
             you must conclude beyond a reasonable doubt
             that when he committed the acts charged in
             the indictment, one, no such harm existed or
             it was not immediate; or two, he did not
             have a well-grounded belief that the harm
             existed; or three, there were reasonable
             alternatives   to    prevent   such    harm.
             (emphasis added).

The   only    instructions    that     came   between   the    objected-to

instruction and the above-quoted burden of proof instruction was

a proper continuation of the affirmative defense instruction.

Accordingly, the above instruction corrected immediately any

misimpression the jury might have had with respect to the burden

of proof.     We are therefore unable to say that any error in the

instruction,     if   there   was    indeed   any   error     at   all,   was

prejudicial.

             Affirmed.




                                     -16-
