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

                             -13-

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

                             -14-

          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.

                             -15-

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.

                             -15-
                              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.  

                             -16-
                              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."

                             -17-
                              17
