
USCA1 Opinion

	




                            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.                                         -2-                    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                                         -3-          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.                                         -4-                    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                                         -5-          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.                                         -6-                    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-                                         -7-          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.                                         -8-          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                                         -9-          "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                                         -10-          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                          _________                                         -11-          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                                         -12-          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                                         -13-          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.                                         -14-          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                                         -15-          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.                                ___                                         -16-                    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                                         -17-          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                                         -18-          . . .  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                                         -19-          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                                         -20-          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.                                         -21-          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                                         -22-                      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                                         -23-          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 . . . .                                         -24-          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.                                         -25-
