United States v. Andujar

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 92-2376

UNITED STATES,

Appellee,

v.

JOSE SALVADOR ANDUJAR,

Defendant - Appellant.

No. 92-2377

UNITED STATES,

Appellee,

v.

AMADOR IRIZARRY-SANABRIA,

Defendant - Appellant.

No. 92-2378

UNITED STATES,

Appellee,

v.

PEDRO INFANTE,

Defendant - Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jos Antonio Fust , U.S. District Judge]

Before

Torruella, Chief Judge,

Campbell, Senior Circuit Judge,

and Boyle,* Senior District Judge.

Ram n Garc a, by Appointment of the Court, for appellant

Jos Salvador And jar.
Gabriel Hern ndez-Rivera, by Appointment of the Court, on

brief for appellant Amador Irizarry-Sanabria.
Thomas R. Lincoln, by Appointment of the Court, with whom

Law Offices of Thomas R. Lincoln was on brief for appellant Pedro

Infante.
Jos A. Quiles-Espinosa, Senior Litigation Counsel, with

whom Guillermo Gil, United States Attorney, was on brief for

appellee.

March 6, 1995

* Of the District of Rhode Island, sitting by designation.

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TORRUELLA, Chief Judge. On July 17, 1992, defendants
TORRUELLA, Chief Judge.

Amador Irizarry-Sanabria, Jos Salvador And jar, and Pedro

Infante-Ruiz were convicted by a jury in federal district court

for conspiracy to import approximately 3000 pounds of marijuana

and for the possession of a firearm in relation to the commission

of said narcotics offense, in violation of 21 U.S.C. 952(a)

and 963, and 18 U.S.C. 924(c)(1), respectively. All defendants

now appeal. Jos Salvador And jar alleges that the evidence was

insufficient to support the jury's verdict. Amador Irizarry-

Sanabria (1) challenges the sufficiency of the evidence; (2)

alleges that the district court erroneously instructed the jury

regarding the meaning of reasonable doubt; and (3) maintains that

the district court abused its discretion in precluding the

defense from presenting certain impeachment testimony. Pedro

Infante-Ruiz alleges (1) that the district court misapplied the

United States Sentencing Guidelines (the "Guidelines") in

determining his sentence; and (2) that the jury instructions

impermissibly reduced the government's burden of proof at trial.

For the following reasons, we vacate the conspiracy and

924(c)(1) convictions of Jos Salvador And jar. All other

convictions are affirmed.

I. BACKGROUND
I. BACKGROUND

We recite the facts in the light most favorable to the

government. United States v. Echeverri, 982 F.2d 675, 676 (1st

Cir. 1993). The charges contained in the indictment arose from

an unsuccessful operation to import narcotics into Puerto Rico

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from Colombia. The pertinent facts occurred between September 24

and September 30, 1991, beginning with the co-conspirators'

efforts to recruit William Linder ("Linder") to assist them in a

scheme to import marijuana. These facts came to light because

Linder, unbeknownst to the co-conspirators, was a confidential

informant working for the government.

Linder had resided in the town of Lajas, Puerto Rico,

Papayo Ward, for nearly thirty years. Linder's occupation at the

relevant time was selling oysters from a kiosk adjacent to

Salvi's Tire Center (the "Tire Center"). The Tire Center, as

well as the adjacent kiosk, was owned by Appellant Jos Salvador

And jar ("And jar"), whom Linder had known for approximately

twenty-eight years. Linder had become acquainted with Appellant

Pedro Infante-Ruiz ("Infante") because Infante was a frequent

customer at his oyster stand. Linder knew Appellant Amador

Irizarry-Sanabria ("Irizarry") because he owned a fish market in

the nearby town of La Parguera.

On September 24, 1991, while Linder was at the Tire

Center, he noticed Infante drive up. After Infante and And jar

had a brief conversation, which Linder could not hear, And jar

told Linder that Infante wanted to see him inside the Tire

Center. Infante and Linder met alone in And jar's office, at

which time Infante asked Linder if Linder would use his boat to

retrieve a load of drugs from an ocean rendezvous. Linder

accepted the proposition, and they agreed to meet later the same

day at the Tire Center.

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Linder then left the Tire Center and informed Puerto

Rico Police Agent Am lcar Vargas ("Agent Vargas") of Infante's

illegal offer. Afterwards, he returned to the Tire Center to

wait for Infante, who eventually arrived with Irizarry. Infante

then drove them to a house located in the direction of Barrio

Joyuda (the "Barrio Joyuda House"), where Federico Francisco de

la Paz (a.k.a. "Freddie") was waiting. Also present were two

Colombian nationals, Alberto Enrique Pineda-Wissman ("Pineda")

and an unidentified individual. And jar was not present at this

meeting.

Pineda proceeded to sketch out the plans for the off-

shore drug pick-up. The plan called for Linder to take his boat

to a location near Mona Island, where he would retrieve the drugs

from a speed boat called "La Colombiana." Pineda provided Linder

with a crude map of Mona Island, the coordinates for the intended

rendezvous point, and a list of the radio frequencies on which

the co-conspirators planned to communicate.

Because Linder was unsatisfied with the map of Mona

Island, Infante instructed Irizarry to get him a nautical chart.

Irizarry and Linder then proceeded to Lucas Marine Shop in Cabo

Rojo, where they purchased a nautical ruler, and La Pescader a

Rosa, where they found an appropriate chart. Irizarry paid for

both items.

On their way back to the Barrio Joyuda House, Irizarry

informed Linder that he was to pick up a 3,000 pound load of

marijuana and offered him $100,000 for his efforts. At the

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Barrio Joyuda House, Linder was given $800 to purchase supplies

for the trip. Linder then left the house and bought the

necessary supplies. Before he returned home, he briefed Agent

Vargas on the day's events.

The following day, September 25, 1991, Linder went to

the Tire Center, where And jar instructed him to return the

following day to meet Infante. The next day, as instructed,

Linder returned to the Tire Center. Infante was late for the

scheduled meeting, so And jar, at Linder's request, called

Infante's cellular phone to determine his whereabouts. After the

call, And jar assured Linder that Infante would arrive soon.

Shortly thereafter, accompanied by Irizarry, Infante drove

through the Tire Center's back entrance. Infante ordered Linder

to get in the vehicle quickly so that he would not be seen.

Before proceeding to the Barrio Joyuda House, Infante instructed

And jar to move Linder's car from the front to the back of the

Tire Center.

When Linder, Infante, and Irizarry arrived at the

Barrio Joyuda House, the same group present at the September 24

meeting was already assembled. They discussed revisions in the

plans, and Linder told the group that he would require a gun if

he was to make the journey alone. After a brief consultation

with Infante and Freddie, Irizarry left the house and returned

shortly with a .357 Ruger revolver, which he gave to Linder.

After the meeting dissolved, Linder met with the local police,

who copied the weapon's serial number.

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Before his departure on the evening of September 26,

Linder met with Lt. Gonz lez, a local police officer, and Drug

Enforcement Administration agent Jos Morales ("Agent Morales").

Linder informed them of the specifics of his trip, and the three

agreed to meet the following day at a spot near Mona Island.

Linder surrendered the revolver to the officers at this time.

Linder arrived at Mona Island on the morning of

September 27. He was met later that day by Lt. Gonz lez, Agent

Morales, and several other law enforcement personnel. Linder

left that night for the rendezvous, which was scheduled to take

place the following afternoon.

Although Linder arrived at the rendezvous point at the

appointed hour, the Colombian boat was nowhere to be seen. The

boat never appeared, and attempts to communicate with it by radio

were unavailing. It was close to midnight when Linder finally

decided to head back to Mona Island. The seas were rough, and he

was having engine and radio problems. Eventually, his engine

quit altogether. Linder's boat remained adrift until a large tug

boat stopped to help and called the Coast Guard for assistance.

The Coast Guard arrived and brought Linder on board. Although

they tried to tow his boat back to Mona Island, it sank along the

way.

When Linder eventually arrived back at La Parguera, he

recounted the events to Irizarry, who explained that the

Colombian boat had suffered engine problems and had been unable

to make the trip. During the following days, Linder and the co-

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conspirators met at the Tire Center, where they assured him that

they would get him another boat. Infante cautioned Linder not to

tell anyone about the failed mission and specifically told him

not to communicate over the telephone. Instead, Infante

instructed Linder, "Anytime you want to say something to me, tell

[And jar]. [And jar] will call me and I get with you [sic]."

Several days later, while Linder was at the oyster

kiosk, And jar told him, "My friend came to pick up the gun. He

was looking for the gun. I told him he better go to Mona Island

and look in the mouth of a shark, and he might find it."

Subsequently, the appellants were indicted and

convicted in federal court on charges of conspiracy to import

marijuana and possession of a firearm in relation to the

commission of the offense.

II. SUFFICIENCY OF THE EVIDENCE
II. SUFFICIENCY OF THE EVIDENCE

Both And jar and Irizarry allege that the proof at

trial was insufficient to support their convictions.

A. Standard of Review
A. Standard of Review

The standard of review governing a challenge to the

sufficiency of the evidence is well established. An appellate

court must determine whether a rational jury could find guilt

beyond a reasonable doubt. Echeverri, 982 F.2d at 677; United

States v. Garc a, 983 F.2d 1160, 1163-64 (1st Cir. 1993). In

making this determination, the reviewing court must examine the

evidence, together with all inferences that may be reasonably

drawn from it, in the light most favorable to the prosecution.

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Echeverri, 982 F.2d at 677. Furthermore, the reviewing court

does not evaluate witness credibility, but resolves all

credibility issues in favor of the verdict. Garc a, 983 F.2d at

1164 (quoting United States v. Batista-Polanco, 927 F.2d 14, 17

(1st Cir. 1991)). "The evidence may by entirely circumstantial,

and need not exclude every reasonable hypothesis of innocence;

that is, the factfinder may decide among reasonable

interpretations of the evidence." Batista-Polanco, 927 F.2d at

17. Nevertheless, "[i]f the 'evidence viewed in the light most

favorable to the prosecution gives equal or nearly equal

circumstantial support to a theory of guilt and a theory of

innocence of the crime charged,' this court must reverse the

conviction. This is so because . . . where an equal or nearly

equal theory of guilt and a theory of innocence is supported by

the evidence viewed in the light most favorable to the verdict,

'a reasonable jury must necessarily entertain a reasonable

doubt.'" United States v. S nchez, 961 F.2d 1169, 1173 (5th

Cir.) (citations omitted), cert. denied, 113 S. Ct. 330 (1992).

With the scope of our review thus defined, we move to the

appellants' claims.

B. Conspiracy
B. Conspiracy

To establish a conspiracy conviction, the prosecution

must prove, inter alia, that the defendant entered an agreement

to commit the substantive offense, and that the defendant was a

voluntary participant in the conspiracy. Echeverri, 982 F.2d at

679. The government must prove that the defendant possessed both

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"intent to agree and intent to commit the substantive offense."

Garc a, 983 F.2d at 1165 (citation omitted). However, "[d]ue to

the clandestine nature of criminal conspiracies, the law

recognizes that the illegal agreement may be either 'express or

tacit' and that a '"common purpose and plan may be inferred from

a development and collocation of circumstance."'" United States

v. S nchez, 917 F.2d 607, 610 (1st Cir. 1990)(citations omitted),

cert. denied, 111 S. Ct. 1625 (1991). "Mere presence at the

scene and close association with those involved are insufficient

factors alone; nevertheless, they are relevant factors for the

jury." S nchez, 961 F.2d at 1174 (5th Cir.) (citation omitted)

(emphasis in original).

Irizarry maintains that the evidence against him is

insufficient because it consisted only of Linder's uncorroborated

testimony. While it is true that much of the government's

evidence consisted of the largely uncorroborated testimony of the

confidential informant, Linder, Irizarry's argument fails

nevertheless. As we noted above, an appellate court reviewing

the sufficiency of the evidence must resolve all credibility

determinations in favor of the verdict. This rule of appellate

review applies equally when the evidence centers on the

uncorroborated testimony of a confidential informant, so long as

the testimony is not "'incredible or insubstantial on its face.'"

United States v. G mez-Pab n, 911 F.2d 847, 853 (1st Cir. 1990)

(holding that evidence was not rendered insufficient merely

because it consisted largely of the uncorroborated testimony of a

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paid informer) (quoting United States v. Aponte-Su rez, 905 F.2d

483, 489 (1st Cir. 1990)).

Given that we resolve any credibility issues in favor

of the verdict, we find that Irizarry's sufficiency-of-the-

evidence challenge fails because the record contains ample

support for his conspiracy conviction. A reasonable jury could

infer from Linder's testimony that Irizarry was deeply involved

in the entire operation. According to Linder, Irizarry was

present at the Barrio Joyuda House when the Colombians discussed

the radio frequencies, code names, and coordinates that would be

used for the drug run. Moreover, Irizarry procured the firearm

for Linder and offered Linder $100,000 for his services in

retrieving the marijuana from the off-shore rendezvous with the

Colombians. A jury hearing this evidence could reasonably

conclude that Irizarry was a voluntary participant in an unlawful

scheme to import marijuana. We therefore conclude that the

evidence was sufficient to convict Irizarry of conspiracy to

import narcotics.

And jar also maintains that his conspiracy conviction

is unsupported by the record. Specifically, he claims that the

evidence at trial showed no more than "mere presence" at the Tire

Center. Recently, we noted that "the culpability of a

defendant's presence hinges upon whether the circumstances fairly

imply participatory involvement. In other words, a defendant's

'mere presence' argument will fail in situations where the 'mere'

is lacking." Echeverri, 982 F.2d at 678. Upon a thorough

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scrutiny of the record, we find that the evidence is insufficient

to establish anything more than And jar's mere presence

throughout the conspiracy. That is, the evidence is insufficient

as a matter of law to have permitted a jury to conclude beyond a

reasonable doubt that And jar was a voluntary participant in the

importation conspiracy.

The evidence relating to And jar's alleged

participation in the conspiracy can be fairly summarized as

follows: According to Linder, And jar arranged the original

meeting between Linder and Infante, during which Infante asked

Linder to participate in the marijuana importation scheme.

Though And jar was not present, he allowed Infante to talk

privately with Linder in his office at the Tire Center. No

evidence was presented as to whether And jar knew the subject

matter of this conversation. And jar also orchestrated the

September 26 meeting between Linder and Infante, and when Infante

was late for this meeting, And jar called Infante's cellular

phone and informed him that Linder was waiting at the Tire

Center. When Infante arrived, he ordered And jar to move

Linder's car to the back of the Tire Center. Following Linder's

ill-fated voyage to Mona Island, the co-conspirators used

And jar's Tire Center several times to meet and discuss their

plans. Linder testified that during one of these meetings

And jar had remarked, "My friend came to pick up the gun . . .

and I told him that he better go to Mona Island and look in the

mouth of a shark, [and] he might find it." After Linder's boat

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had sank, Infante ordered Linder to refrain from using the phone

to contact him. Instead, he told Linder, "Any time you want to

say something to me, tell [And jar]. [And jar] will call me and

I get [sic] with you."

The prosecution was required to prove beyond a

reasonable doubt that And jar was a voluntary and knowing

participant in the conspiracy. More specifically, the government

had to establish (1) that And jar intended to agree to the

importation scheme and (2) that he intended to import marijuana

into the United States. From the evidence presented, a jury

could permissibly infer that, at least after the fact, And jar

was aware of many of the details of the bungled attempt to import

marijuana. The evidence is insufficient, however, to permit the

jury to have found that And jar had the requisite specific intent

to import marijuana. Although And jar arranged several meetings

between Linder and Infante, And jar was not present at any of the

co-conspirators' critical planning meetings at the Barrio Joyuda

House. In fact, the prosecution did not introduce any evidence

suggesting that And jar was aware that the meetings concerned a

pending drug deal. We realize, of course, that after-the-fact

knowledge of an illegal conspiracy and presence at the operative

locations are relevant factors for the jury to consider.

Nevertheless, these factors alone are insufficient to establish a

conspiracy conviction.

We do not look at the record through rose colored

lenses; rather, we canvass the record dispassionately, and base

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our decision on proven facts, leaving aside undue speculation.

While And jar's actions are consistent with those of a low level

participant or "middle-man" in the importation scheme, they do

not demonstrate his participation with the certainty necessary

for a criminal conviction. And jar's actions, when seen in light

of the events following Linder's voyage, offer equal support to

both And jar's mere presence theory and the prosecution's theory

that And jar was knowingly acting as a facilitator and go-between

in the conspiracy, which of course constitutes participatory

involvement. In this circumstance, we must find that the

evidence was insufficient to sustain the conviction. When a jury

is confronted, as here, with equally persuasive theories of guilt

and innocence it cannot rationally find guilt beyond a reasonable

doubt. We therefore vacate And jar's conviction for conspiracy

to import marijuana.

C. The Firearm Conviction
C. The Firearm Conviction

And jar also alleges that the evidence against him is

insufficient to support his conviction for possession of a

firearm in relation to the commission of a narcotics offense, in

violation of 18 U.S.C. 924(c)(1).1 We agree. Section

924(c)(1) provides sentencing enhancements if a defendant "during

and in relation to any crime of violence or drug trafficking

crime[,] . . . uses or carries a firearm." 18 U.S.C.

924(c)(1). "By its terms, the statute requires the prosecution

1 For reasons unknown, the government failed to address this
issue in its brief on appeal.

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to make two showings. First, the prosecution must demonstrate

that the defendant 'use[d] or carrie[d] a firearm.' Second, it

must prove that the use or carrying was 'during and in relation

to' a 'crime of violence or drug trafficking crime.'" Smith v.

United States, 113 S. Ct. 2050, 124 L.Ed.2d 138, 147 (1993).

Both elements are absent here. First, there is no

evidence that And jar used or carried the gun the conspirators

gave to Linder. Second, there was insufficient evidence to

convict And jar of a crime of violence or drug trafficking crime.

Consequently, liability under 924(c)(1) is inapplicable.

Accordingly, we vacate his conviction for the 924(c)(1)

firearms count as well.

II. JURY INSTRUCTIONS
II. JURY INSTRUCTIONS

Both Irizarry and Infante challenge the jury

instructions given by the district court. However, because

neither appellant raised an objection to the jury charge at

trial, we review the instructions only for plain error, that is,

"'errors so shocking that they seriously affect the fundamental

fairness and basic integrity' of the trial." United States v.

Mej a-Lozano, 829 F.2d 268, 272 (1st Cir. 1987) (citation

omitted); see also Fed. R. Crim. P. 30 and 52(b). We gauge each

challenged instruction in the context of the charge as a whole,

not in isolation. United States v. Boylan, 898 F.2d 230, 244

(1st Cir. 1990).

A. Definition of Reasonable Doubt
A. Definition of Reasonable Doubt

Irizarry contends that the court's instructions

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regarding the definition of reasonable doubt constituted plain

error. The court instructed the jury that:

a reasonable doubt is a doubt based upon
reason and common sense. Proof beyond a
reasonable doubt must, therefore, be
proof of such a convincing character that
a reasonable person would not hesitate to
act upon it.
. . .
So if you, the jurors, after a careful
and impartial consideration of all the
evidence in the case have a reasonable
doubt, it means, then, that you would
hesitate to act and find the defendants
guilt [sic] of the charge, and if that
happens, therefore, you must acquit.

We have repeatedly warned against attempting to define

reasonable doubt, noting that "[m]ost efforts at clarification

result in further obfuscation of the concept." United States v.

Campbell, 874 F.2d 838, 843 (1st Cir. 1989) (citations omitted).

Further, "[m]any definitions reduce the burden of proof on the

government by expanding the degree of doubt permissible, and

consequently such definitions result in increased appellate

litigation." Id. (citations omitted). Nevertheless, a district

court does not necessarily commit reversible error by attempting

to define the concept of reasonable doubt for the jury. See

United States v. Rodr guez-Cardona, 924 F.2d 1148, 1160 (1st

Cir.), cert. denied, 112 S. Ct. 54 (1991). "[O]ur experience has

been that even imperfect formulations usually meet constitutional

requirements when viewed in the context of the entire charge."

Watkins v. Ponte, 987 F.2d 27, 32 (1st Cir. 1993) (citation

omitted). Therefore, appellate courts must tolerate a reasonable

range of expression. Id.

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When evaluating a district court's definition of

reasonable doubt, an appellate court's ultimate concern is

whether the instruction has a tendency to reduce the government's

burden of proof at trial. See United States v. Nolasco, 926 F.2d

869, 871 (9th Cir.) ("The challenge confronting a court that

would define reasonable doubt is to avoid language that may

'mislead the jury into finding no reasonable doubt when in fact

there was some.'"), cert. denied, 112 S. Ct. 111 (1991) (quoting

Holland v. United States, 348 U.S. 121, 140 (1954)). "A criminal

defendant is entitled to an instruction that '"adequately

apprise[s] the jury of the reasonable doubt standard."'"

Campbell, 874 F.2d at 842 (citation omitted). The United States

Supreme Court has suggested that an acceptable definition would

define reasonable doubt as "the kind of doubt that would make a

person hesitate to act." Holland, 348 U.S. at 140. Deviations

from the "hesitate to act" language have often constituted

reversible error, especially where the language likens reasonable

doubt to doubt which would cause one to act, rather than hesitate

to act. See, e.g., United States v. Noone, 913 F.2d 20, 29 n.14

(1st Cir. 1990), cert. denied, 500 U.S. 906 (1991); United States

v. Col n-Pag n, 1 F.3d 80, 81 (1st Cir. 1993) (Where the court

defined "guilt beyond a reasonable doubt" as "proof of such a

convincing character that a person . . . would be willing to rely

and act upon it," it committed plain error because the

instruction may have given the jury the incorrect impression that

it could convict the defendant "upon the basis of evidence no

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stronger than might reasonably support a decision to go

shopping.").

In Noone, 913 F.2d at 29 n.14, we approved an

instruction nearly identical to the one under consideration here,

and noted that the contested language was essentially the

converse of the accepted "hesitate to act" formulation. The

instruction here says that "a reasonable doubt is a doubt based

upon reason and common sense. Proof beyond a reasonable doubt

must, therefore, be proof of such a convincing character that a

reasonable person would not hesitate to act upon it." The

Supreme Court has suggested that a reasonable doubt is one which

would cause a reasonable person to hesitate to act. As we noted

in Noone, the language here is essentially the converse of the

Supreme Court's formulation -- that is, if a reasonable doubt

makes a reasonable person hesitate to act, proof beyond a

reasonable doubt is proof upon which a reasonable person would

not hesitate to act. While we are concerned with all district

court efforts to define reasonable doubt, especially those that

deviate from the Supreme Court's "hesitate to act" language, we

nevertheless do not find that the present formulation

impermissibly shifted the government's burden of proof. This

conclusion is buttressed by the fact that the jury instructions

also included the permissible "hesitate to act" language. The

court instructed: "So if you, the jurors, after a careful and

impartial consideration of all the evidence in the case have a

reasonable doubt, it means, then, that you would hesitate to act

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. . . and if that happens, therefore, you must acquit." This

instruction tracked the Supreme Court's formulation, and,

consequently, it decreased the likelihood that the instructions,

as a whole, mislead the jury. We think these instructions, as a

whole, adequately apprised the jury of the gravity of the proof-

beyond-a-reasonable-doubt standard, and, therefore, we cannot say

that the instruction was plainly erroneous.

B. Reference to "Guilt or Innocence"
B. Reference to "Guilt or Innocence"

Infante argues that the district court's reference to

the defendants' "guilt or innocence" in the jury instructions

constituted plain error.

The jury instructions at issue read as follows:

I caution you[,] members of the jury[,]
that you are here to determine the guilt
or innocence of the accused from the
evidence in the case. You know that
these defendants are not on trial for any
other act or any other conduct that is
not alleged in this Indictment.

Neither are you called upon to return a
verdict as to the guilt or innocence of
any other person or persons not on trial
here. So you are not being asked to
decide the case of Felipe Francisco or
the case of Mr. Pineda-Wissman.

Infante claims that the references to the "guilt or innocence" of

the defendants diminished the presumption of innocence and

impermissibly reduced the government's burden of proof at trial.

He contends that the language may have confused the jury as to

the proper standard of proof, noting that a defendant is never

required to prove his innocence. He points out that jurors are

called upon only to decide whether the prosecution has proven the

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defendant guilty beyond a reasonable doubt, not whether the

defendant is innocent.

We have previously warned district courts against using

a "guilt or innocence" comparison. United States v. Mendoza-

Acevedo, 950 F.2d 1, 4 (1st Cir. 1991). Faced with nearly

identical jury instructions, we noted that "[w]hen a court

repeatedly tells jurors that the question is one of guilt or

innocence, it risks undercutting the government's burden by

suggesting that they should find the defendant guilty if they

think he is not innocent--regardless of how convincing the

government's proof has been." Id. We repeat here that, due to

the risks of misleading the jury, district courts should refrain

wherever possible from using a "guilt or innocence" comparison in

their jury instructions.

Despite this admonishment, however, we need not reverse

the defendants' convictions. As in Mendoza-Acevedo, our review

of the entire charge convinces us "that any confusion engendered

by the inappropriate references to 'guilt or innocence' was

offset by the court's careful and clear discussion of the

presumption of innocence and the government's burden of proof."

Id. (citations omitted). The court informed the jury that "[t]he

law presumes a defendant to be innocent of a crime. Thus, a

defendant, although accused, begins the trial with a clean

slate." It further charged the jury that "the presumption of

innocence alone is sufficient to acquit the defendant, unless the

jurors are satisfied beyond a reasonable doubt of the defendant's

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guilt after a careful and impartial consideration of all the

evidence in the case." In closing, the court instructed the

jurors that "[if they], after a careful and impartial

consideration of all the evidence in the case[,] have a

reasonable doubt, it means . . . [they] must acquit." These

instructions were adequate to ensure that the jury was informed

of the government's burden of proof at trial and of the

presumption of innocence cloaking criminal defendants. We,

therefore, can find no plain error in the district court's jury

instructions.

III. INFANTE'S SENTENCING GUIDELINES CHALLENGE
III. INFANTE'S SENTENCING GUIDELINES CHALLENGE

Infante claims that the district court misapplied the

United States Sentencing Guidelines in determining his sentence.

Specifically, he contends that the district court erred when it

found that he was a "leader or organizer" and consequently added

four points to his base offense level, pursuant to U.S.S.G.

3B1.1(a).2

Factbound matters related to sentencing, such as the

district court's determination of a defendant's "role in the

offense," need only be supported by a preponderance of the

2 U.S.S.G. 3B1.1 states:

Based on the defendant's role in the
offense, increase the offense level as
follows:

(a) If the defendant was an organizer
or leader of a criminal activity that
involved five or more participants or was
otherwise extensive, increase by 4
levels.

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evidence and will be set aside on appeal only for clear error.

United States v. Corcimiglia, 967 F.2d 724, 726 (1st Cir. 1992).

The Guidelines suggest that the sentencing court should

consider the following factors when determining whether the

defendant was a leader or organizer:

[T]he exercise of decision making
authority, the nature of participation in
the commission of the offense, the
recruitment of accomplices, the claimed
right to a larger share of the fruits of
the crime, the degree of participation in
planning or organizing the offense, the
nature and scope of the illegal activity,
and the degree of control and authority
exercised over others.

U.S.S.G. 3B1.1, comment. (n.4).

Infante contends that he could not have been the leader

or organizer because the entire deal was clearly run by Francisco

de la Paz. This contention, however, overlooks the fact that

"[t]here can, of course, be more than one person who qualifies as

a leader or organizer of a criminal association or conspiracy."

U.S.S.G. 3B1.1, comment. (n.3). Our review of the record

convinces us that although Francisco de la Paz may have been

running the show, the district court did not commit clear error

in determining that Infante had a leadership role in the

operation. After the sentencing hearing, the district court

stated:

I am now more convinced than ever,
after having heard the testimony of Mr.
Pedro Infante, that Mr. Pineda served as
the intermediary. He was the person who
had the contacts. The drug deal was
being arranged, mainly, mainly on behalf
of Francisco de la Paz, also known as

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Freddy.

His personal contact, or principal man,
was Mr. Infante-Ruiz, and in that sense
he was the leader, a leader and
organizer.
. . .
[T]his defendant [Infante] assumed a
leader/organizer role in the commission
of the instant offense as he negotiated
the importation scheme with the Colombian
drug source through an intermediary who
is also a codefendant, was aware at all
times as to the logistical elements of
the intended importation scheme,
recruited at least one of the
codefendants to take charge of the
supportive services to include securing
the boat, captain, and individuals to
assist in the importation, storage, and
subsequent distribution of the marijuana
load, and, finally, provided payments to
the confidential informant to assure
readiness of the vessel to be used in the
rendezvous with the mother ship.

We find that the district court's factual conclusions are

supported by the record and fully justify its determination that

Infante was a leader or organizer in the conspiracy. We

therefore affirm Infante's sentence.

IV. THE EVIDENTIARY RULING
IV. THE EVIDENTIARY RULING

Irizarry contends that the district court abused its

discretion when it excluded the testimony of defense witness

Humberto Hern ndez-L pez ("Hern ndez"). In order to impeach

Linder's credibility, the defense intended to have Hern ndez

testify regarding an incident in which Linder had allegedly

broken a promise he had made to Hern ndez. The incident involved

Linder's alleged failure to pay for some fishing nets that he had

apparently purchased from Hern ndez on credit. Although the jury

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had already learned of the incident through the defense's cross-

examination of Linder, the defense desired to have Hern ndez

testify as to his version of the event.

It is well settled that a party may not present

extrinsic evidence of specific instances of conduct to impeach a

witness on a collateral matter. United States v. Tejada, 886

F.2d 483, 487 (1st Cir. 1989); Fed. R. Evid. 608(b).3 "A matter

is considered collateral if 'the matter itself is not relevant in

the litigation to establish a fact of consequence . . . .'"

United States v. Beauchamp, 986 F.2d 1, 4 (1st Cir. 1993)

(quoting 1 McCormack on Evidence 45, at 169 (4th ed. 1992)).

Here, the incident relating to the fishing nets was

only relevant to impeach the credibility of Linder. It was

irrelevant to the substance of the case -- the conspiracy and

firearms charges -- and was, therefore, a collateral matter.

Consequently, the district court did not abuse its discretion

3 Rule 608 provides in part:

(a) Opinion and reputation evidence of

character. The credibility of a witness

may be attacked or supported by evidence
in the form of opinion or reputation, but
subject to these limitations: (1) the
evidence may refer only to character for
truthfulness or untruthfulness . . . .
(b) Specific instances of conduct.--

Specific instances of the conduct of a
witness, for the purpose of attacking or
supporting the witness' credibility . . .
may not be proved by extrinsic evidence.
They may, however, in the discretion of
the court, if probative of truthfulness
or untruthfulness, be inquired into on
cross-examination of the witness . . . .

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when it excluded the testimony of Hern ndez and limited

discussion of the fishing net incident to the defense's cross-

examination of Linder.4

V. CONCLUSION
V. CONCLUSION

For the foregoing reasons, And jar's convictions are

vacated. All other convictions are affirmed.

4 Irizarry also contends, in the alternative, that Hern ndez
should have been allowed to offer opinion and reputation
testimony regarding Linder's character for truth and veracity.
The district court excluded this testimony after it concluded
that Hern ndez was "not really acquainted with Linder" and thus
lacked sufficient knowledge to proffer an opinion of Linder's
character. This conclusion contains adequate support in the
record and does not constitute an abuse of discretion.

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