
USCA1 Opinion

	




          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.                                          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.                                         II.                 A.  Impeachment on Collateral Matters                 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                 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                                          Concurrence     and     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-            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
