U.S. v. Beauchamp

• Decision Date: 08 January 1993
• Docket Number: No. 92-1944,92-1944
• Citation: 986 F.2d 1
• Parties: , 38 Fed. R. Evid. Serv. 119 UNITED STATES of America, Appellee, v. Michael W. BEAUCHAMP, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

986 F.2d 1

61 USLW 2578, 38 Fed. R. Evid. Serv. 119

UNITED STATES of America, Appellee, v. Michael W. BEAUCHAMP, Defendant, Appellant.

No. 92-1944.

United States Court of Appeals First Circuit.

Heard Jan. 8, 1993.

Decided Feb. 16, 1993.

David L. Martin, Providence, RI, by Appointment of the Court, for appellant.

Lawrence D. Gaynor, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, RI, was on brief for the U.S.

Before BREYER, Chief Judge, CAMPBELL and BOWNES, Senior Circuit Judges.

LEVIN H. 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' 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.

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.

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, 88 S.Ct. 748, 749, 19 L.Ed.2d 956 (1968); Alford v. United States, 282 U.S. 687, 693, 51 S.Ct. 218, 220, 75 L.Ed. 624 (1931). Defendant concedes, as he must, that the district court permitted him to cross-examine Massey 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 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, --- U.S. ----, 113 S.Ct. 823, 121 L.Ed.2d 694 (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, 109 S.Ct. 174, 102 L.Ed.2d 143 (1988); Pisari, 636 F.2d at 858; 3 Weinstein's Evidence, 607, at 607-79, -80 (1992). To the extent Mrs. Amaral's testimony merely went to 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 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...