June 21, 1994     UNITED STATES COURT OF APPEALS
                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                     

No. 94-1097

                        UNITED STATES,

                          Appellee,

                              v.

                     CHRISTIAN GOODCHILD,

                    Defendant, Appellant.

                                     

                         ERRATA SHEET

   The opinion of this court issued on June 8, 1994, is amended

as follows:

   Page 8, line 13:  Add close quote after "device."

   Page 25, last line of the second quote:  Change "e" to "be."

                UNITED STATES COURT OF APPEALS

                    FOR THE FIRST CIRCUIT

                                         

No. 94-1097

                        UNITED STATES,

                          Appellee,

                              v.

                     CHRISTIAN GOODCHILD,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF NEW HAMPSHIRE

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

                                         

                            Before

                     Selya, Circuit Judge,
                                         

                Bownes, Senior Circuit Judge,
                                            

                  and Boudin, Circuit Judge.
                                           

                                         

Vincent J. D'Elia for appellant.
                 

Jean B. Weld, Assistant United States  Attorney, with whom Paul M.
                                                                  

Gagnon, United States Attorney, was on brief for appellees.
  

                                         

                         June 8, 1994
                                         

          BOWNES, Senior Circuit Judge.  Defendant-appellant,
          BOWNES, Senior Circuit Judge.
                                      

Christian Goodchild, was  indicted on one count of  using two

unauthorized access devices, i.e., two Discover credit  cards
                                 

issued  on two  separate  accounts, and  obtaining goods  and

services within a one-year  period with a value in  excess of

$1,000, with intent to  defraud, in violation of 18  U.S.C.  

1029(a)(2).1

          After  a  jury trial,  defendant was  found guilty.

She was  sentenced to  eleven months incarceration,  a three-

year  term   of  supervised  release,  and   ordered  to  pay

restitution of $10,090.52  to Discover Credit  Card Services,

Inc.  This appeal followed.

          We  consider the  following issues:2   (1)  whether

the government proved each  and every element of 18  U.S.C.  

1029(a)(2)  beyond  a  reasonable  doubt;   (2)  whether  the

district  court  erred  in  admitting  certain evidence;  (3)

                    

1.  18 U.S.C.   1029(a)(2) provides:
          (a) Whoever 
          . . .
          (2) knowingly and with intent  to defraud
          traffics   in   or  uses   one   or  more
          unauthorized  access  devices during  any
          one-year  period,  and  by  such  conduct
          obtains  anything  of  value  aggregating
          $1,000 or more during that period;
          shall, if the offense  affects interstate
          or  foreign  commerce,  be   punished  as
          provided  in  subsection   (c)  of   this
          section.
          . . .

2.  Appellant has  eight numbered  issues in her  brief.   We
have consolidated them to five for purposes of our review.

                             -2-
                              2

whether  defendant's  conviction  was  due  in  part  to  the

ineffective   assistance   of   counsel;   (4)   whether  the

prosecutor's conduct  warrants a reversal;  and, (5)  whether

there was error in applying the sentencing guidelines.

                 SUFFICIENCY OF THE EVIDENCE
                                            

          Our standard of review is firmly established:

          We assess the sufficiency of the evidence
          as  a  whole,  including  all  reasonable
          inferences, in the  light most  favorable
          to the verdict, with  a view to whether a
          rational trier  of fact could  have found
          the defendant guilty beyond  a reasonable
          doubt.      We  do   not   weigh  witness
          credibility, but  resolve all credibility
          issues  in  favor of  the  verdict.   The
          evidence may  be entirely circumstantial,
          and  need  not  exclude every  reasonable
          hypothesis  of  innocence,  that is,  the
          factfinder  may  decide among  reasonable
          interpretations of the evidence.

United States v. Batista-Polanco,  927 F.2d 14, 17  (1st Cir.
                                

1991)  (citations  omitted).    See  also  United  States  v.
                                                         

Sepulveda, 15 F.3d 1161, 1173  (1st Cir. 1993); United States
                                                             

v.  Argencourt, 996  F.2d 1300, 1303  (1st Cir.  1993), cert.
                                                             

denied,       U.S.      , 114 S. Ct. 731 (1994).
      

          There are four essential  elements of the crime for

which defendant  was convicted:   (1)  that the two  Discover

credit   cards  specified  in  the  indictment  were  "access

devices"  within the meaning of 18 U.S.C.   1029(e); (2) that

defendant used the credit  cards without authorization during

any   one-year  period   and  obtained   anything  of   value

aggregating $1,000 or  more during the time  period; (3) that

                             -3-
                              3

defendant  acted  knowingly, willfully,  and  with  intent to

defraud; and (4) that defendant's actions affected interstate

commerce.   See United States  v. Ryan, 894  F.2d 355, 356-57
                                      

(10th Cir. 1990).

          We  now  turn to  the  trial  record.   Defendant's

father, Anthony Goodchild, died  in an automobile accident on

September 15, 1988.   In  January of 1988,  Anthony Goodchild

had  applied  for and  received  two  Discover credit  cards,

limited  solely  to his  use.   His  application gave  as his

address  P.O.  Box 398,  Bristol,  New Hampshire.    The 1988

credit cards  expired  in January  1990.   Discover  was  not

notified of Goodchild's death  so it sent him two  new cards,

numbers 2620 and 2471, on  January 8, 1990, to the  same post

office  box  address.    The  re-issue  cards  had  the  same

restriction  as the original ones    the sole  use of Anthony

Goodchild.

          About   two  months   after  her   father's  death,

defendant rented  the same  post office  box  her father  had

rented - box 398.   Defendant notified the  postmistress that

her  mother, Anne, and her  father could receive  mail at the

post  office box.   Defendant's  mother and  father had  been

divorced sometime prior to her father's death.

          At  the time  the  two re-issue  credit cards  were

mailed to post  office box  398, defendant was  the only  one

using  the  box.   On  January  16,  1990,  defendant  called

                             -4-
                              4

Discover, identified herself  and asked  that she  be sent  a

card on  her father's credit account.  No mention was made of

her  father's death.  Discover informed her that it could not

do this unless she forwarded a power of attorney  authorizing

her  use of the credit card accounts.  Defendant proceeded to

make purchases with the cards limited to her father's use.

          Defendant  used card  number 2471  twenty-two times

between January 16 and February 23, 1990, to obtain things or

services  of  value aggregating  $4,847.11.    She used  card

number  2620   thirty-five  times  between   January  15  and

April 10,  1990,  to  obtain  things  or  services  of  value

aggregating $7,137.43.   Defendant  made two minimum  monthly

payments  on card number 2620,  $91.00 on March  3, 1990, and

$104.00 on March 19, 1990.   These were the only payments she

made on either of the cards.

          On  February 5,  1990, Discover  security personnel

started an  investigation  of the  use  of card  number  2471

because of  transactions exceeding  the charge limit.   After

receiving  no answer at the  phone number it  had for Anthony

Goodchild, Discover deactivated  the card.  On February  6 an

attempted use  of the  card at  Nutri-System in  Laconia, New

Hampshire, was blocked.

          The  card account was  then assigned  to Discover's

collections  department.    It  attempted  to  locate Anthony

Goodchild.  The  phone listed on his credit card application,

                             -5-
                              5

603-744-6591,  was  called on  April  23, 1990,  and  a woman

informed the caller that Anthony Goodchild no longer lived at

that  address.  It learned from Anthony's former boss that he

had died "three  to four years  ago."  Discover, on  July 19,

1990,  again called the number it had called previously.  The

caller was told by the same woman  who had answered the phone

on April  23, that she had  had the phone number  for a year,

that she did not know Anthony Goodchild, and that a Goodchild

lived in Alexandria, New Hampshire.

          Discover found a telephone number for defendant  in

Alexandria,  New  Hampshire, 603-744-0157.    The number  was

called on July 19, 1990, and a message left  on the answering

machine asking that  the call  be returned.   A woman  called

back.  After identifying  herself as Christian Goodchild, she

said a number  of things.   She told the Discover  agent that

Anthony  Goodchild  had died  in  an  automobile accident  on

September 15, 1988, in Reading, Pennsylvania.   She said that

there  was a "long story behind the account sales" in January

and February, 1990.  She went on to say that her parents were

divorced four months before her father's death and that after

he died "girlfriends  started popping up" and  her mother was

heartbroken.  She  told Discover that  the attorney had  paid

off "all credit accounts" through the estate, that the estate

was  closed, and because she had  fired the attorney handling

the  estate  for  incompetence,  there  was  no  attorney  to

                             -6-
                              6

contact.  Defendant also volunteered that her father's latest

girlfriend, who was living with him at the time of his death,

was  "Arline," last  name  and present  whereabouts  unknown.

After this phone call, the credit card accounts were referred

to the  fraud unit  of Discover,  and eventually  were turned

over to United States Postal Inspectors.

          There was independent evidence linking defendant to

the credit  card transactions.  An  insurance adjuster, Terry

Seger,  went  to  defendant's  home  on  June  14,  1991,  to

investigate  her  burglary  claim  of  a loss  in  excess  of

$70,000.   Seger told defendant that  he needed corroborating

information  of the  value of  the items  stolen.   Defendant

submitted specific Discover card records of purchases on both

cards totalling approximately $3,362.12.   The records showed

that these purchases were made in 1990.  Defendant told Seger

that she had  lived in her father's house since a month after

her father's death  in 1988.   She also  told Seger that  she

owned the Discover credit cards jointly with her father.

          Evidence  was introduced showing that defendant was

a  regular customer  of Nutri-System  Weight Loss  Centers in

Concord, New  Hampshire, in 1990.   Purchases were  made from

Nutri-System on card number 2620 on February 12, February 26,

and March  3, 1990, and  one purchase on card  number 2471 on

February 1, 1990.

                             -7-
                              7

          Based  on our  review  of the  record, focussed  as

prescribed in  the light  most favorable to  the verdict,  we

find that  the prosecution  proved all  four elements  of the

crime charged beyond  a reasonable  doubt.  There  can be  no

doubt that  the Discover  credit cards were  "access devices"

within  the meaning  of  the statute  and  defendant did  not

challenge  the judge's charge to  this effect.3   Nor can any

serious  challenge be made to the evidence showing use of the

credit  cards by defendant.  And it is clear that defendant's

use of the  credit cards affected  interstate commerce.   The

one  issue that  requires further  discussion is  whether the

government has proven intent to defraud.

Intent to Defraud
                 

          Under 18  U.S.C.    1029(a)(3) the  government must

prove that a defendant "knowingly and with intent  to defraud

traffics in or  uses one or more unauthorized access devices"

. . .  ."   Section  1029(e)(3) defines  "unauthorized access

device as follows:

                    

3.  18  U.S.C.      1029(e)(1)  defines  "access  device"  as
follows:

             the  term  "access  device" means  any
          card,  plate,  code,  account number,  or
          other means of account access that can be
          used,  alone  or   in  conjunction   with
          another access device,  to obtain  money,
          goods,  services, or  any other  thing of
          value, or that can  be used to initiate a
          transfer of funds (other than  a transfer
          originated solely by paper instrument);

                             -8-
                              8

             the term  "unauthorized access device"
          means  any access  device  that is  lost,
          stolen,  expired,  revoked, canceled,  or
                          
          obtained with intent to defraud;  

(Emphasis added.)

          The district court charged the jury as follows:

             The third element that  the Government
          must prove  beyond a reasonable  doubt is
          that  the  defendant acted  knowingly and
          with intent to defraud.

             The  Government  must  prove beyond  a
          reasonable doubt:

             (1) that  Christian Goodchild obtained
          the   Discover   cards  with   intent  to
          defraud,  or that  the credit  cards were
          lost,   stolen,   expired,   revoked   or
          canceled; and

             (2)    that  she  knowingly  and  with
          intent to defraud used the credit cards.
                                

(Emphasis added.)

          The  court  also gave,  at  defendant's  request, a

"good faith" instruction:

             Since  an  essential  element  of  the
          crime  charged is intent to defraud, good
          faith  on the  part of  a defendant  is a
          complete  defense to  a charge  of credit
          card  fraud.   If the  defendant actually
          believed  in  good  faith  that  she  was
          acting properly, even if she was mistaken
          in that  belief, and even  if others were
          injured by her conduct, there would be no
          crime.   An  honest mistake  in  judgment
          does not rise  to the  level of  criminal
          conduct.   A  defendant does  not  act in
          good  faith if, even  though she honestly
          holds a certain  opinion or belief,  that
          defendant also acted  with the purpose of
          deceiving others.

                             -9-
                              9

             While  the  term  good  faith  has  no
          precise definition, it means  among other
          things a belief or opinion honestly held,
          an absence of malice  or ill will, and an
          intention   to    avoid   taking   unfair
          advantage of another.

             The  burden is  on  the Government  to
          prove  fraudulent  intent and  consequent
          lack  of good  faith beyond  a reasonable
          doubt.     The  defendant  is   under  no
          obligation to prove good faith.

It  is clear  that  the jury  was  properly and  evenhandedly

instructed on intent to defraud.

          Fraud is usually proven by circumstantial evidence.

Direct proof  of a  knowing intent to  defraud is rare.   See
                                                             

United States  v. Nivica,  887 F.2d  1110, 1113-15 (1st  Cir.
                        

1989),  cert. denied, 494  U.S. 1005 (1990).   As we  said in
                    

Nivica:  "There  is no  pat formula for  such proof;  factual
      

circumstances may signal fraudulent intent in ways as diverse

as the manifestations of fraud itself."  Id. at 1113.
                                            

          We now  examine the evidence.   Defendant points to

the following  evidence and  the reasonable inferences  to be

drawn therefrom  as establishing  that she  had no  intent to

defraud  Discover.   She  took out  the  post office  box two

months  after her father's death  in September 1988, in order

to  help the estate receive  mail, for her  personal use, and

the use of  her mother.  Defendant  points out that in  using

the credit cards  she signed her surname as  she did on other

credit  cards held by her.  She  also asserts that she always

disclosed her proper name, address, phone number and driver's

                             -10-
                              10

license number.  She  emphasizes that she never  denied using

the credit cards, and that she did make payments on the cards

from  her own checking account.   She states  that she always

paid bills late.   We have  been unable to find  any evidence

about defendant paying bills late, but will assume that there

is evidence to  that effect  or that it  could be  reasonably

inferred  from other  evidence.    Defendant emphasizes  that

during  the  time of  the credit  card  charges she  had been

appointed personal representative of her father's estate with

the consent of her  mother and two brothers and  that all the

expenditures  were made  with  the approval  of the  attorney

representing the estate.  Defendant  also points out that she

was financially able to pay the credit card bills.

          We  start  our  examination  of   the  government's

evidence on  intent to defraud  with the telephone  call from

defendant  to  Discover on  January  16, 1990,  in  which she

requested, without mentioning her father's death, that she be

sent a card on her father's credit accounts and was told that

in  order  to do  so Discover  required  a power  of attorney

authorizing  her  to  use   the  accounts.    Defendant  then

proceeded to use both  cards, which were limited to  her late

father's use, for credit purchases totalling $11,984.54.  The

only payments made  on the accounts were  two minimum monthly

payments of $91.00 and $104.00 on card number 2620.  Although

she was administrator  of her father's estate during the time

                             -11-
                              11

she was  using the  cards, defendant never  notified Discover

until  mid-July of 1990 that  her father had  been dead since

September  15,  1988.     When  the  insurance  adjuster  was

investigating defendant's  claim of  a burglary of  her home,

she specified  Discover credit  card purchases of  items that

she claimed had been stolen.  She told the insurance adjuster

that she held the  cards jointly with  her father.  This  was

false and defendant knew it was false.  There can be no doubt

that defendant had the  wherewithal to pay Discover what  was

owed.    By  the  spring  of  1990,  defendant  had  received

distributions  from  her  father's  estate  of  approximately

$22,855.    By the  time  of  her indictment,  defendant  had

received $181,607 in estate distributions.4

          We conclude that there  was sufficient evidence for

a jury to find  beyond a reasonable doubt that  defendant had

obtained  the  credit cards  after  they had  expired  on her

father's  death,  that  she  used them  for  her  own benefit

knowingly and with intent  to defraud, and obtained something

of  value  aggregating more  than  $1,000  during a  one-year

period.  Or to put it another way,  the government proved all

the elements of the crime charged beyond a reasonable doubt.

                  THE ADMISSION OF EVIDENCE
                                           

                    

4.  We can  only wonder why defendant  needed court appointed
counsel.

                             -12-
                              12

          Defendant   hotly  contested,  on  the  grounds  of

hearsay, the  admission  of "collection  memos"  of  Discover

which contained  the histories  of the  two accounts  used by

her.  The memos incorporated the substance of telephone calls

purportedly  made by  defendant to  Discover.   The basis  of

defendant's hearsay  objection to the memos  was that neither

the person(s) who  prepared the memo(s) nor the person(s) who

had  the  telephone  conversation(s)  or  the  person(s)  who

maintained the  records testified.   The memos  were admitted

under the business record exception to the hearsay rule, Fed.

R.  Evid. 803(6).  The telephone statements allegedly made by

defendant  on  July  19,  1990,  were  also  admitted  as  an

admission  under  Fed.  R.   Evid.  801(d)(2).    A  detailed

exposition of the presentation of this evidence is necessary.

          Glen  Hall,  manager  of fraud  investigations  for

Discover, testified as follows.  The fraud investigation unit

often  initiated investigations  based on  referrals received

from the  collections department.   Each referral  contains a

record of what  the collections  department has  done on  the

account  up to the  date of the  referral to  the fraud unit.

This information  includes any  contacts with  and statements

made  by  the  cardholder.    A  referral  also  contains any

documentation  on  hand,  including  sales  drafts, with  the

customer's signature on them.

                             -13-
                              13

          The main activity by the  collections department on

a delinquent  account consists  of telephone calls  to locate

the  cardholder.   It is  standard procedure  for collections

personnel to log  everything done.   This is called  "memoing

the  account."   All phone  calls have  to be "memoed."   The

collections department  uses its own shorthand  system in the

memo record.  Hall  testified that he was familiar  with most

of  the shorthand system used.  All  of the account memos are

put  into a computer.   Each account memo  can be printed out

when  needed.   Exhibits  12a, 12b,  12c,  13a, and  13b were

computer  printouts  of  "collection  memos"   pertaining  to

defendant's accounts.  Hall  explained how the printouts were

read  and the meaning of the shorthand terms and symbols used

in  them.   Hall testified  that the  printout exhibits  were

brought with  him in response  to a  subpoena for  Discover's

collections file.   He also testified that these records were

kept  in  the  ordinary  course  of  business and  stored  on

Discover's computer.

          Defendant's hearsay attack focuses on the admission

of  exhibits 12b and  13b.  These  computerized memos include

references  to  telephone  contacts   with  a  woman  at  the

telephone number listed  on Anthony  Goodchild's credit  card

application.  This woman referred the collections caller to a

person by  the name of  Goodchild living  in Alexandria,  New

Hampshire.   As a  result,  collections obtained  defendant's

                             -14-
                              14

phone number and  left a  message on  her answering  service.

Defendant objected to the introduction of this evidence.  The

district court  properly admitted the statement  of the woman

that  a person  by  the  name  of  Goodchild  was  living  in

Alexandria, not for the  truth of the statement made,  but to

explain what Discover did in response to it.

             It  is not  the case  that all  out of
          court  statements   are  inadmissible  as
          hearsay.   The Federal  Rules of Evidence
          make  it quite clear that such statements
          are inadmissible only  if offered for the
          truth  of the  matter therein.   Fed.  R.
          Evid. 801(c).  We agree with the district
          court's    decision     permitting    the
          introduction  of  the  documents, on  the
          ground that they  were admitted, not  for
          proving the truth  of their contents, but
          to   prove  what  steps   were  taken  to
          investigate the circumstances surrounding
          the assault.

Morgan v. Massachusetts General  Hospital, 901 F.2d 186, 190-
                                         

91 (1st Cir. 1990).   This ruling applies with  full vigor to

the telephone statements made by the unidentified woman.

          Defendant concentrates most  of her objection  fire

on telephone  statements allegedly  made by  her on  July 19,

1990,  in response  to  Discover's request  on her  answering

service  that she  call.   The  statements  were:   that  she

identified  herself  as  Christian  Goodchild;  that  Anthony

Goodchild had died in an automobile accident on September 15,

1988; that her parents were divorced four months prior to her

father's  death;  that  after her  father  died  "girlfriends

started popping up" and her  mother was heartbroken; that the

                             -15-
                              15

attorney paid  off all "credit accounts"  through the estate;

that  she had fired the attorney for incompetence in handling

the estate and  the estate was closed; that her  father had a

girlfriend living with  him at the  time of his death  by the

name of "Arline," last name and present whereabouts unknown.

          The core issue is whether the computer printouts of

the   collection  memos   containing  records   of  telephone

statements  made  to  Discover's  collection  personnel  were

properly admitted under the  business record exception to the

hearsay rule.  Fed. 

                             -16-
                              16

R. Evid. 803(6) provides:

             (6)    Records of  regularly conducted
          activity.  A memorandum,  report, record,
          activity.
          or  data  compilation,  in any  form,  of
          acts,  events,  conditions, opinions,  or
          diagnoses, made at  or near the  time by,
          or  from  information  transmitted by,  a
          person with  knowledge,  if kept  in  the
          course of a regularly  conducted business
          activity,  and  if  it  was  the  regular
          practice  of  that  business activity  to
          make the memorandum,  report, record,  or
          data  compilation, all  as  shown by  the
          testimony  of  the  custodian   or  other
          qualified witness, unless  the source  of
          information    or     the    method    or
          circumstances  of   preparation  indicate
          lack  of  trustworthiness.     The   term
          "business"  as  used  in  this  paragraph
          includes      business,      institution,
          association, profession, occupation,  and
          calling  of every  kind,  whether or  not
          conducted for profit.

          We find that the telephone statement memos meet the

strictures  of the rule.   They were reports  or records made

either  during  the  telephone  conversations  or immediately

following them.   They were made and kept in  the course of a

regularly  conducted  business  activity,   i.e.,  telephonic
                                                

investigations of  delinquent credit  card accounts.   And it

was the regular practice of Discover to make a record of such

telephone calls.

          Although Hall  did not make the  records himself or

participate in the telephone conversations, we think he was a

witness qualified to explain  the memos.  He was  the manager

of the  fraud  unit  of  Discover  and  understood  both  the

procedure followed by collections in investigating delinquent

                             -17-
                              17

accounts  and  the  records  required  to  be  kept  of  such

investigations.   There  was no  evidence indicating  lack of

trustworthiness  of  the source  of  the  information or  the

circumstances of preparation.

          In rendering our ruling we are, of course, aware

          that   the   usual  array   of  threshold
          questions pertaining to the admissibility
          of business records come within the ambit
          of   the  district   court's  discretion.
          These usual questions include, of course,
          questions   as   to   whether  a   proper
          foundation was laid or whether sufficient
          indicia of trustworthiness were shown.

United States v. McGill, 953 F.2d 10, 13 (1st Cir. 1992).
                       

          We are not  persuaded by defendant's argument  that

the  memos  were  not  business  records,  but  prepared  for

litigation.     Records  prepared  by   a  debt   collections

department  are primarily  made to  enable the  department to

track down debtors and  collect money owed.  This  is not the

kind  of record condemned in Palmer v. Hoffman, 318 U.S. 109,
                                              

113-14 (1943) which was a statement made by the engineer of a

train  involved  in an  accident.   The  record here  was not

prepared with  an  eye  to  litigation; its  purpose  was  to

facilitate the collection  of debts owed Discover.  The Tenth

Circuit, in an analogous case, held:

          The government established at  trial that
          the notes were  contemporaneous with  the
          [telephone]  conversation,  were part  of
          the   regular   course   of    the   loan
          counselors'   business,   and   otherwise
          qualified as a business record under Rule
          803(6).    Therefore, the  district court

                             -18-
                              18

          did  not abuse  its discretion  in ruling
          that the notes qualify as an exception to
          the hearsay rule.

United  States v.  Kingston,  971 F.2d  481,  486 (10th  Cir.
                           

1992).

          We find  the telephone statements of defendant made

on July  19 to Discover  were admissible  under the  business

record rule.  

          The  district  court  also  admitted  as admissions

under  Fed.  R. Evid.  801(d)(2)(A)5  the  July 19  telephone

statements made by defendant to Discover.  We  recognize,  of

course,  that normally statements by  one not a  party to the

business  are not  admissible  for the  truth  of the  matter

stated unless some exception  other than the business records

exception is involved; the  business records exception merely

avoids having to call the person in the business who  had the

telephone conversation  but  does not  justify admitting  the

statements  of the outsider for  their truth.   In this case,

the predicate  for making the statements relevant is that the

jury could reasonably find  that the statements were  made by

the defendant.   The evidence  was that she  returned a  call

                    

5.  Fed. R. Evid. 801 (d)(2)(A) states:
          (d) Statements which are  not hearsay.  A
          (d) Statements which are  not hearsay.
          statement is not hearsay if 

             (2) Admission by party-opponent.   The
             (2) Admission by party-opponent.
          statement  is offered against a party and
          is  (A)  the  party's  own  statement  in
          either an individual or  a representative
          capacity . . . .

                             -19-
                              19

made to her  number and  identified herself.   She then  made

statements about Anthony Goodchild and his wife that only one

privy  to the family history would know.  The statements were

admissions because  they could be used  to identify defendant

and were properly admitted as such.  Moreover, the judge gave

a cautionary  instruction after  the phone-call  evidence was

admitted:

             Members of the jury, during the course
          of  this  witness's  testimony  you  have
          heard  certain testimony  about notations
          or memos made in  the business records of
          Discover    concerning    certain   phone
          conversations.  Before you  can attribute
          any  of  those  recorded  remarks  to the
          defendant, Ms. Goodchild,  in this  case,
          you  must be  satisfied from  all  of the
          evidence  before  you that  the defendant
          was  in fact  the person  who was  on the
          other  end  of  the  telephone  line  and
          making those remarks.

             If  you  are  not satisfied  from  the
          evidence   that   the   caller  was   the
          defendant,  then  you must  not attribute
          any of those remarks to her.

This  cautionary  instruction  was  clear and  correct.    It

advised  the  jury how  the  phone  call evidence  should  be

approached.

              INEFFECTIVE ASSISTANCE OF COUNSEL
                                               

          Defendant  mounts a  lengthy and  detailed argument

that trial  counsel's poor performance resulted,  at least in

part, in defendant's  conviction.  We  follow our usual  rule

and refuse  to address the ineffective  assistance of counsel

issue  in the first  instance.  In  United States  v. Mala, 7
                                                          

                             -20-
                              20

F.3d 1058 (1st Cir.  1993) we explained in detail  the reason

for the rule:

             We   have   held  with   a  regularity
          bordering  on  the monotonous  that fact-
          specific claims of ineffective assistance
          cannot make their  debut on direct review
          of  criminal  convictions,  but,  rather,
          must  originally  be  presented  to,  and
          acted  upon by,  the trial  court.   See,
                                                  
          e.g.,  United States v.  McGill, 952 F.2d
                                         
          16, 19 (1st Cir.  1992); United States v.
                                                
          Natanel,  938  F.2d  302, 309  (1st  Cir.
                 
          1991), cert. denied,      U.S.      , 112
                             
          S.Ct. 986, 117 L.Ed.2d 148 (1992); United
                                                   
          States  v. Hunnewell,  891 F.2d  955, 956
                              
          (1st Cir. 1989); United States  v. Costa,
                                                  
          890  F.2d  480, 482-83  (1st  Cir. 1989);
          United States v.  Hoyos-Medina, 878  F.2d
                                        
          21,  22 (1st Cir. 1989); United States v.
                                                
          Carter,  815  F.2d  827,  829  (1st  Cir.
                
          1987);  United  States  v. Kobrosky,  711
                                             
          F.2d 449, 457 (1st  Cir. 1983).  The rule
          has a prudential aspect.  Since claims of
          ineffective  assistance involve  a binary
          analysis the defendant  must show, first,
          that     counsel's     performance    was
          constitutionally  deficient and,  second,
          that the deficient performance prejudiced
          the    defense,    see   Strickland    v.
                                             
          Washington, 466 U.S.  668, 687, 104 S.Ct.
                    
          2052,  2064,  80 L.Ed.2d  674 (1984) such
          claims  typically require  the resolution
          of    factual    issues    that    cannot
          efficaciously be addressed  in the  first
          instance by an  appellate tribunal.   See
                                                   
          Costa, 890 F.2d at 483; Hoyos-Medina, 878
                                              
          F.2d  at  22.   In  addition,  the  trial
          judge,  by reason of his familiarity with
          the case, is usually in the best position
          to assess both  the quality of  the legal
          representation afforded  to the defendant
          in the district court  and the impact  of
          any  shortfall  in  that  representation.
          Under ideal circumstances,  the court  of
          appeals should  have the benefit  of this
          evaluation;   elsewise,  the   court,  in
          effect, may be playing blindman's buff.

                             -21-
                              21

Id.  at 1063 (footnote omitted).   See also  United States v.
                                                          

Daniels, 3 F.3d 25 (1st Cir. 1993).
       

                    PROSECUTORIAL CONDUCT
                                         

          Defendant  charges  that  the "prosecutor's  unduly

prejudicial  and overreaching actions  constitute plain error

and warrant a  reversal of  the action."   We  have read  the

record carefully and  have found no actions by the prosecutor

that  even suggest conduct  requiring reversal.   It  is true

that the  prosecutor pushed  hard during  the  trial for  the

admission of evidence  and to sustain  his objections and  he

was somewhat  highhanded at times.   But this is part  of the

adversarial system.   There was no conduct  by the prosecutor

that  was  unethical, unfair,  or  which  infringed upon  the

constitutional rights of defendant.

          We  are,  however,  bothered  by   a  statement  in

defendant's  brief that is without support in the record.  On

page  32   of  defendant's  brief  there   is  the  following

statement:

            In  addition,  during the  prosecutor's
          closing  his  repeated  use of  the  term
          "uncontradicted testimony" drew attention
          to the  fact that Ms.  Goodchild did  not
          testify.  Such references are grounds for
          reversal.

We  agree that  such a  reference might  well be  grounds for

reversal  and a new trial.  But the prosecutor's argument did

not  contain  a  single   use  of  the  term  "uncontradicted

testimony,"  let  alone  repeated  use  of  it.    We  expect

                             -22-
                              22

appellate  counsel to  read  the trial  record and  represent

accurately  in  the  brief  and  at  oral  argument  what  is

contained  therein.  Counsel should be aware that we read the

record, as well as the briefs, carefully.

                        THE SENTENCING
                                      

          We are  somewhat hampered  in our  consideration of

this issue because  neither party ordered a transcript of the

sentencing hearing in this  case.  We proceed on the basis of

the presentence  report and  the judgment which  includes the

court's  statement of  reasons for  the sentence.   Defendant

received the following sentence:  she was committed to prison

for eleven months; she received  a supervised release term of

three  years; and  she  was  ordered  to pay  restitution  to

Discover in the amount of $10,090.52.

          Her sentence  was arrived at as  follows.  Pursuant

to    2F1.1 of the Guidelines the base offense level (B.O.L.)

for a  violation of 18 U.S.C.   1029(a)(2) is six.  The court

found  that the  amount  of Discover's  loss was  $10,090.52.

This  increased  the B.O.L.  by  three levels.    Because the

offense  involved more  than  minimal  planning, the  offense

level  was enhanced two more levels.  No other adjustments to

the  B.O.L.  were made.    The  defendant's criminal  history

category  was  I.   The imprisonment  range  for a  B.O.L. of

eleven  and  a criminal  history category  of  I is  eight to

fourteen months.

                             -23-
                              23

          Defendant's main challenge to the  sentence was the

court's determination  that  the victim's  loss  amounted  to

$10,090.52.  She argues that the loss was $9,160.27.  If this

were  the   loss,  under   the  applicable  section   of  the

Guidelines,  the imprisonment  range would  be six  to twelve

months.

          The presentence report shows  the amount of loss as

$9,160.27.    The  district  court  rejected  this.   In  its

statement of reasons it said:

             The government  objected to paragraphs
          10 and 11 of  the addendum on the grounds
          that   in   calculating   the   loss   to
          Discovery, [sic] late and finance charges
          should be  included.  If such charges are
          included, the loss  figure is  $10,090.52
          rather  than  $9,160.27 as  determined in
          the report.  The latter figure results in
          an  increase  of  two  rather  than three
          levels  to the  base offense level.   The
          court  concluded  that  during the  trial
          Glen Hall, a representative of Discovery,
          [sic]   testified   that   the  loss   to
          Discovery [sic] was  $10,090.52 and  that
          figure  was  not  challenged  during  the
          course  of the  trial.    Therefore,  the
          court established the  lost [sic]  figure
          as $10,090.52  which  will result  in  an
          increase  in three  levels  to  the  base
          offense level  rather than two  levels as
          indicated in paragraph 21 of  the report.
          Paragraph  21 is  amended  to  reflect  a
          three level increase.

          Our  standard  of review  follows  two intersecting

standards.   Valuation of  loss is  reviewed under  the clear

error  standard.  United States v. Brandon, 17 F.3d 409, 456-
                                          

57 (1st  Cir. 1994).   But  when "an  appeal raises  a purely

                             -24-
                              24

legal  question  involving the  proper interpretation  of the

sentencing guidelines, appellate review is plenary."   United
                                                             

States v. DeLuca, 17 F.3d 6, 7 (1st Cir. 1994).  
                

          The   issue   of  "loss"   valuation   requires  an

interpretation of Commentary  7 to   2F1.1  of the Guidelines

which states in pertinent part:

             7.  Valuation of  loss is discussed in
          the   Commentary   to   2B1.1   (Larceny,
          Embezzlement, and Other Forms  of Theft).
          As in  theft cases, loss is  the value of
          the   money,    property,   or   services
          unlawfully  taken;  it   does  not,   for
                                                   
          example,  include   interest  the  victim
                                                   
          could have  earned on such funds  had the
                                                   
          offense not occurred.  
                              

(Emphasis  ours.)  The question  is whether, in  light of the

interest preclusion statement in the commentary, the district

court erred in including finance charges and late fees in its

valuation of  the loss.6  There can  be little doubt that the

courts must  follow the Guidelines commentaries.   Stinson v.
                                                          

United States,      U.S.     , 113 S.Ct. 1913, 1919 (1993).
             

                    

6.  Although the  court did  not state explicitly  that these
charges  were included such can be  inferred from its comment
in its statement  of reasons that the government  objected to
the   presentence  report's  recommendation  of  a  two-level
increase because such recommendation failed to include  "late
and finance" charges.  See also Government's Brief at page 41
                               
in which it is stated:

             The court accepted as  accurate Hall's
          figures,  which   included  only  finance
          charges and late fees  as of the dates of
          the termination of the accounts  in 1990,
          . . . .

                             -25-
                              25

          We  are  not the  first court  to grapple  with the

scope   and  application  of   the  "interest"  statement  in

Commentary 7.   In United  States v. Henderson,  No. 92-2707,
                                              

1994 U.S. App.  LEXIS 7166 at  *33 (5th Cir. April  13, 1994)

(footnote omitted) the court held:

          The current commentary to  the Sentencing
          Guidelines  provides  that the  amount of
          loss  "does  not,  for  example,  include
          interest the victim  could have earned on
          the funds had the offense  not occurred."
          U.S.S.G.     2F1.1, comment.  (n.7).   We
          find  that  this  commentary  sweeps  too
          broadly  and,  if  applied  in  this case
          would be inconsistent with the purpose of
            2F1.1.   Stinson v. United  States, 123
                                              
          L.  Ed. 2d  598,  113 S.  Ct. 1913,  1919
          (1993).   Interest should be included if,
          as  here,  the  victim had  a  reasonable
          expectation  of  receiving interest  from
          the  transaction.    See,   e.g.,  United
                                                   
          States v.  Lowder, 5 F.3d  467, 471 (10th
                           
          Cir. 1993) (holding that  interest should
          be included in  the amount of  loss where
          the defendant promised victims a specific
          interest  rate   on  their  investments);
          United  States  v. Jones,  933  F.2d 353,
                                  
          354-55 (6th Cir.  1991) (interest  should
          be included where the defendant defrauded
          credit   card   companies  which   had  a
          reasonable  expectation   of  a  specific
          return on the  credit extended).  In  the
          words of the district judge, "interest is
          a loss,  a  loss of  earnings on  money--
          representing a loss of earnings  on money
          that was--that rightfully belonged to the
          bank   and   therefore  should   be  also
          included."   11  R.  42-43.   We find  no
          error in the district court's decision to
          include interest in the amount of loss in
          this case.

In United States v. Lowder,  5 F.3d 467 (10th Cir.  1993) the
                          

court reasoned:

                             -26-
                              26

          We interpret the guideline as disallowing
          "opportunity cost" interest, or the time-
          value  of  money  stolen   from  victims.
          Here,  however,  Defendant defrauded  his
          victims  by  promising them  a guaranteed
          interest rate  of 12%.  He  induced their
          investment by essentially contracting for
          a specific rate of  return.  He also sent
          out   account   summaries,  showing   the
          interest  accrued  on  their  investment.
          This is analogous to  a promise to pay on
          a bank loan or promissory note, in  which
          case  interest may  be  included  in  the
          loss.

Id. at 471.
   

          In a  case like this one,  involving the fraudulent

use of unauthorized credit cards, the Sixth Circuit, in a per
                                                             

curiam opinion held:
      

          We  do not  think  it was  error for  the
          district  court  to include  the interest
          charges in  the calculation of  the loss.
          When  Ms. Jones  made her  purchases with
          the  fraudulently obtained  credit cards,
          the issuer advanced money to the retailer
          on her behalf.   When Ms. Jones failed to
          pay, the issuer lost the use of the money
          that  ought  to  have come  back  to  it.
          Money has a time value, as all  borrowers
          and lenders  know, and the time  value of
          the money withheld by Ms. Jones was fixed
          by the credit card agreements under which
          the interest was calculated.

United States v. Jones, 933 F.2d 353, 354 (6th Cir. 1991).
                      

          This is a close issue  and we must acknowledge that

there  is to some degree  a conflict between  the cited cases

and the language of the Commentary.  The conflict is due to a

clash between  the ambiguous language used  in the Commentary

and  the complexity of what  constitutes "interest" and  when

                             -27-
                              27

it  is an integral part of  the value of the "money, property

or  services unlawfully taken."   Commentary 7.   Our holding

will not  solve the  problem; such  resolution lies  with the

Sentencing Commission.

          We hold that in a case involving the fraudulent use

of unauthorized  credit cards, finance charges  and late fees

do  not  come within  the  meaning of  the  Commentary phrase

"interest  the victim could have earned on such funds had the

offense not  occurred".   This phrase,  we  think, refers  to

opportunity cost interest.  In a credit card case there is an

agreement  between  the company  and  the  cardholder to  the

effect  that when payments are made  late, or not at all, the

cardholder is subject to late fees and finance charges.  This

is part  of the price of using credit cards.  The credit card

company has a right to expect that such fees and charges will

be paid.   This is not "interest  that the victim  could have

earned on  such funds had the offense not occurred."  It is a

contractual obligation  on  which  the  credit  card  company

relies each time it extends credit to a cardholder.  In fact,

but for the cardholder's promise to pay late fees and finance

charges, the credit card company  would not extend its credit

in the first instance.  Such charges, therefore, are properly

included in the loss valuation.

          The judgment  of the district court  is affirmed in
                                                             

all respects.
             

                             -28-
                              28
