
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2068                                    UNITED STATES,                                      Appellee,                                          v.                                    EDWARD ISAACS,                                Defendant, Appellant.                                      __________        No. 92-2129                                    UNITED STATES,                                      Appellant,                                          v.                                    EDWARD ISAACS,                                 Defendant, Appellee.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                            Oakes,* Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Miriam  Conrad, Assistant  Federal  Defender,  with  whom Owen  S.            ______________                                            ________        Walker, Chief Federal Defender, was on brief for Edward Isaacs.        ______            Fred  M. Wyshak,  Jr.,  Assistant  U.S. Attorney,  and  Carole  S.            _____________________                                   __________        Schwartz,  Special  Assistant   U.S.  Attorney,  with  whom   A.  John        ________                                                      ________        Pappalardo, United States Attorney, was on brief for the United States        __________        of America.                                 ____________________                                   January 25, 1994                                 ____________________        _____________________        *Of the Second Circuit, sitting by designation.                       OAKES, Senior Circuit  Judge.  This  case consists                              _____________________             of  cross  appeals  from a  judgment  of  the  United States             District Court  for the  District of  Massachusetts, Rya  W.             Zobel, Judge.   The Government appeals both the  decision of                    _____             the  court  to  entertain  a  collateral  challenge  to  the             constitutionality  of a prior  conviction at  sentencing and             the  decision of  the court  that the  prior conviction  was             constitutionally  invalid.   The  defendant, Edward  Isaacs,             appeals his conviction  on the basis that the district court             improperly allowed  into evidence an indictment  against his             father and cousins and  improperly allowed him to be  cross-             examined concerning his knowledge of  his relatives' alleged             loansharking  enterprise.  For the reasons below, we reverse             the  district court's  decision  that it  had  the power  to             review the constitutionality of Isaacs' prior conviction and             affirm  its decision  to admit  the  indictment against  his             father into evidence and to allow him to be questioned about             the activities of his relatives.                                      BACKGROUND                                      __________                       Isaacs  was convicted of  one count  of conspiracy             and  one  count of  using extortionate  means to  attempt to             collect a loan, in  violation of 18  U.S.C.    2 and  894(a)             (1988).   According  to  the  Government,  racketeering  and             loansharking was something of a family business.  Isaacs got             involved  in the "business"  after his father,  Leonard, was                                          2             indicted, placed  under house arrest,  and developed  health             problems.  Isaacs' conviction is  based on his dealings with             one  of his  father's alleged  loansharking  victims, Robert             Ayala.  Ayala  had borrowed $2,500 from  Leonard in November             of 1990 and had been making weekly interest payments of $100             (for an interest  rate of 208% per year).   Isaacs contacted             Ayala  in  July  of  1991, after  Ayala  had  stopped making             payments, to  pressure Ayala  to pay  off  the entire  loan.             Ayala eventually sought help from the authorities and agreed             to help record conversations with Isaacs.                         Isaacs was tried before a jury and convicted.  The             Government's   evidence  included   several  recordings   of             conversations that  supported the allegations  of extortion.             In addition, there was proof that Isaacs broke  into Ayala's             home  and threatened  Ayala with  a pistol  in front  of his             three small  children.   At sentencing,  the district  court             increased  Isaacs'  offense  level under  the  United States             Sentencing  Guidelines   (the  "Sentencing   Guidelines"  or             "Guidelines" or  "U.S.S.G") by  two points  for perjury  and             intimidation of a  witness and then refused  Isaacs' request             for a  downward departure based  on his history of  abuse at             the hands of his father.   However, the court allowed Isaacs                                          3             to challenge  a 1980  burglary conviction1  that would  have             resulted  in  his  being classified  as  a  career offender,             instead of  receiving a  Criminal History  Category of  III.             Isaacs  argued that he had not received effective assistance             of counsel in his earlier  case because his attorney did not             object to having the case transferred from juvenile to adult             court at a certification hearing.  The  district court found             that  Isaacs  had  demonstrated by  a  preponderance  of the             evidence  that his prior conviction was unconstitutional and             refused  to consider either the conviction or the underlying             conduct as  a basis  for changing  Isaacs' Criminal  History             Category.   As  a  result,  Isaacs faced  97  to 121  months             imprisonment rather than 210 to 262 months and was sentenced             to 108 months.                                      DISCUSSION                                      __________                       This case raises three issues.  First, we consider             whether U.S.S.G.  4A1.2 gives  a sentencing court discretion             to  allow  a  defendant   to  challenge  the  constitutional             validity of a prior conviction that is being used to enhance             his or her  Criminal History Category.   Second, we  address             the  question whether Isaacs  had a constitutional  right to                                              ____________________             1Isaacs  was arrested  in August  of 1980  and  charged with             several  burglaries  that  occurred  during  June and  July.             Isaacs was 17 at the time and was not living at home.                                          4             challenge his prior  conviction at sentencing.   Finally, we             evaluate  Isaacs'   contention  that   the  district   court             committed  reversible  error  in admitting  evidence  of his             relatives' alleged criminal behavior.             I.        The Government's Appeal                       _______________________                       A.   Section 4A1.2 of the Sentencing Guidelines                            __________________________________________                       The  Government   contends  that   the  Sentencing             Guidelines  do not  provide a  sentencing  court independent             authority   to  permit   a  collateral   challenge  to   the             constitutionality  of a  prior  conviction  where the  prior             conviction is being  used to compute a  defendant's Criminal             History Category.   We agree.   The dispute over  this issue             concerns Comment  6 to   4A1.2, and,  in particular, a  1990             amendment to the Guidelines that altered Comment 6 and added             a background note to the comment section.                         Prior to the  1990 amendment, Comment 6  to  4A1.2             of the Guidelines stated:                       Invalid    Convictions.        Sentences                       ______________________                       resulting  from  convictions  that  have                       been  reversed  or  vacated  because  of                       errors   of    law,   or    because   of                       subsequently-discovered         evidence                       exonerating the defendant, are not to be                       counted.   Any other  sentence resulting                       in a valid  conviction is to be  counted                       in   the    criminal   history    score.                       Convictions which the defendant shows to                       ________________________________________                       have been  constitutionally invalid  may                       ________________________________________                                          5                       not be  counted in the  criminal history                       ________________________________________                       score.  Also, if to count an uncounseled                       _____                       misdemeanor conviction  would result  in                       the   imposition   of  a   sentence   of                       imprisonment  under  circumstances  that                       would   violate   the    United   States                       Constitution, then such conviction shall                       not be counted  in the criminal  history                       score.  Nonetheless, any conviction that                       is not  counted in the  criminal history                       score  may  be  considered  pursuant  to                        4A1.3 if it  provides reliable evidence                       of past criminal activity.               U.S.S.G.   4A1.2,  comment  (n.6)  (Nov.  1,  1989)  (second             emphasis  added).  The courts which interpreted this Comment             uniformly found that the  Guidelines authorized or  required             the  constitutional   review   of   prior   convictions   at             sentencing.  See, e.g., United States v. Mims, 928 F.2d 310,                          ___  ____  _____________________             312  (9th Cir.  1991); United  States v.  Edwards, 911  F.2d                                    __________________________             1031, 1035 (5th Cir. 1990); United States v. Jones, 907 F.2d                                         ______________________             456, 460-69  (4th Cir.  1990), cert.  denied, 498 U.S.  1029                                            _____  ______             (1991).                         However,  the  Sentencing Commission  amended  the             comment  section for  4A1.2  in 1990, thereby  reopening the             question whether the Guidelines provide district courts with             independent  authority to  review  the constitutionality  of             prior convictions.   Cf. Stinson v. United  States, ___ U.S.                                  ___ _________________________             ___,  113 S.  Ct. 1913  (1993)  (Interpretive commentary  in             Guidelines is binding authority for federal courts even when             contrary to  prior judicial  interpretation of  Guidelines).             Comment 6 to  4A1.2 as thus amended provides:                                          6                       Reversed,   Vacated,    or   Invalidated                       ________________________________________                       Convictions.   Sentences resulting  from                       ___________                       convictions that  have been  reversed or                       vacated  because of  errors  of law,  or                       because    of    subsequently-discovered                       evidence exonerating the  defendant, are                       not  to  be  counted.   Also,  sentences                       resulting   from   convictions   that  a                       defendant shows to  have been previously                                                     __________                       ruled constitutionally  invalid are  not                       _____                       to   be  counted.     Nonetheless,   the                       criminal    conduct    underlying    any                       conviction  that is  not counted  in the                       criminal history score may be considered                       pursuant to  4A1.3 (Adequacy of Criminal                       History Category).             U.S.S.G.   4A1.2,  comment  (n.6)  (Nov.  1,  1991)  (second             emphasis added).   In short, Comment 6 no  longer deals with             collateral  challenges  at  all,  but  simply  instructs the             sentencing court  to disregard  convictions  that have  been             "previously  ruled   unconstitutional."     Nevertheless,  a             background note  added to  the comment section  at the  same             time states in pertinent part:                       The   Commission   leaves    for   court                       determination  the  issue of  whether  a                       defendant  may  collaterally  attack  at                       sentencing a prior conviction.                       The courts that have  assessed the revised comment             section  to  4A1.2 have  accordingly divided on  whether the             Guidelines  continue  to  authorize  the  review   of  prior             convictions.   Compare United States  v. Byrd, 995  F.2d 536                            _______ ______________________             (4th Cir. 1993) (Wilkins, J.) (Guidelines add no independent             power for  collateral review;  Constitution mandates  review             only  in certain  limited circumstances),  United States  v.                                                        _________________                                          7             Roman, 989 F.2d  1117, 1120 (11th Cir. 1993)  (en banc) (per             _____             curiam)  (Guidelines add no independent power for collateral             review;  Constitution  mandates  review  only if  conviction             "presumptively  void") and United States v. Hewitt, 942 F.2d                                    ___ _______________________             1270,  1276  (8th   Cir.  1991)  (amendment  to   Comment  6             demonstrates Commission's intent  to disallow challenges  to             prior convictions;  no  discussion of  the added  background             note)  with United States  v. McGlocklin, No.  91-6121, 1993                    ____ ____________________________             U.S. App. LEXIS 23841, at *16 n.7  (6th Cir. Sept. 17, 1993)             (Comment  6 is  consistent with  the  inherent authority  of             district  courts to  allow  attacks  on prior  convictions),             United States  v. Canales,  960  F.2d 1311,  1315 (5th  Cir.             _________________________             1992) (background note demonstrates that Commission intended             to  allow sentencing  court some  discretion  in whether  to             allow  challenges to prior convictions) and United States v.                                                     ___ ________________             Jakobetz, 955 F.2d  786, 805 (2d Cir.)  ("[w]hile defendants             ________             may always present  the sentencing court with  evidence that             another  court has ruled their prior convictions invalid and             hence unsuitable for  consideration as part of  the criminal             history  score  at   sentencing,  the  court  also   retains             discretion to  determine whether  a defendant  may mount  an             initial challenge  to the validity  of such  convictions."),             cert. denied, ___ U.S. ___,  113 S. Ct. 104 (1992); and  cf.             _____ ______                                        ___  ___             United States  v. Vea-Gonzales,  986 F.2d  321, 325-29  (9th             ______________________________             Cir.  1993) (Guidelines  ambiguous  on  right of  sentencing                                          8             court to allow  collateral attacks on prior  convictions but             Constitution  makes right  of attack mandatory)  amended and                                                              ___________             superseded 999 F.2d 1326 (9th Cir. 1993).             __________                       The First  Circuit has not addressed  this precise             question, although this  court has decided that  a defendant             may attack the constitutional validity of a state conviction             when facing the  enhancement provisions of the  Armed Career             Criminal Act ("ACCA").  United  States v. Paleo, 967 F.2d 7,                                     _______________________             11-12  (1st Cir.  1992).    In response  to  a petition  for             rehearing  in Paleo,  however, this  court  stated that  the                           _____             language of Comment  6 to  4A1.2 was  "critically different"             from the language of the ACCA.  United  States v. Paleo, No.                                             _______________________             90-1774, 1992  WL 545126,  at *2 (1st  Cir. Sept.  18, 1992)             (memorandum and  order  denying  petitions  for  rehearing).             Nonetheless,  the Paleo panel  did not directly  address the                               _____             question whether a sentencing court has discretion under the             Guidelines  to  allow   a  collateral  attack  on   a  prior             conviction.                         The Government asks this court to accept the Roman                                                                    _____             and  Hewitt courts' interpretation  of  4A1.2 and  find that                  ______             the revised  Comment 6,  the commentary  applicable to  this             case, is  intended to  preclude collateral  review of  prior                                          9             convictions.   We  find this  view  persuasive.2   The  1990             amendment to Comment  6 removed the language  that served to             authorize first  time collateral review of prior convictions             and  replaced it  with language  permitting  review only  of             convictions  "previously ruled  invalid."   As the  Eleventh             Circuit recognized in  Roman, "[n]o language  now in Note  6                                    _____             authorizes collateral review."  Roman, 989 F.2d 1117, 1119.                                             _____                       The  problem  is,  of  course,  more  difficult by             virtue of  the appended  background note  which leaves  "for             court determination  the issue  of whether  a defendant  may             collaterally attack at  sentencing a prior conviction."   We             believe that this note does not provide an independent basis             for  the  review  of prior  convictions,  given  the revised             language of Comment 6 itself.  Instead, the  background note             may be  best understood  as a signal,  somewhat faint  to be             sure,  that the Sentencing  Commission had not  attempted to             resolve whether the Constitution requires a sentencing court             to review the  constitutionality of a prior  conviction that             is being used to enhance a  sentence -- an issue we  address             below.  As the Roman court stated, "[t]he Background Comment                            _____                                              ____________________             2The  Commission's  explanation  for  the  amendment  states             unhelpfully that the  amendment "clarifies the circumstances             under which prior  sentences are excluded from  the criminal             history score."   U.S.S.G. App.  C, Amendment  353, at  171.             The focus  of the  amendment explanation appears  to be  the             addition  of  uncounseled misdemeanor  convictions  to those             convictions  that are used to determine the criminal history             score.  Id.                     ___                                          10             does not change [Comment 6's] meaning, but recognizes that -             - apart from  the sentencing guidelines --  the Constitution             bars  federal courts from using certain kinds of convictions             at sentencing."  Id.3                              __                       B.   Constitutional Considerations                            _____________________________                       Although the district court based its  decision to             review the constitutionality of Isaacs' prior conviction  on             the  mistaken belief that  the Guidelines authorized  such a             review,  we must still  address Isaacs' contention  that the             Constitution guarantees the right to challenge  collaterally             prior convictions at  sentencing.  In opposition  to Isaacs'             position, the Government advocates the position taken by the             Eleventh Circuit in Roman -- that the Constitution  does not                                 _____             require sentencing  courts to  permit defendants  to make  a                                              ____________________             3A  recent  amendment  to  the  comment  section  of   4A1.2             suggests that the  Commission did not intend  the Guidelines             to provide an  independent basis for  a sentencing court  to             review  the constitutionality  of  prior convictions.    See                                                                      ___             U.S.S.G.    4A1.2,  comment  (n.6)  (Nov.  1,  1993).    The             amendment directly confronts the  "inter-circuit conflict in             interpreting the commentary by stating more clearly that the             Commission does not intend to enlarge a defendant's right to             attack  collaterally  a  prior  conviction  at  the  current             sentencing proceeding beyond any right otherwise  recognized             in   law."    Proposed   Amendment  20  to   the  Sentencing             Guidelines,  Policy  Statements,   and  Official  Commentary             (April  30, 1993).  Despite this  clear statement of intent,             we  note that  the amendment  did not  go into  effect until             November 1, 1993.  Thus, we do  not rely on the amendment to             hold   that  the  Guidelines   do  not  provide  independent             authority for collateral review of prior convictions.                                          11             collateral  challenge  to  prior convictions  at  sentencing             unless the  alleged constitutional error  is so grave  as to             make  the   prior  conviction  "presumptively  void."    The             Government further  contends that  Isaacs' challenge  to his             prior  conviction does  not  meet  the "presumptively  void"             criteria.4                        We begin by  observing that the Supreme  Court has             so far  declined to  consider whether  due process  requires             "state courts to permit challenges to  guilty pleas used for             enhancement purposes."  Parke v.  Raley, 113 S. Ct. 517, 523                                     _______________             (1992) (due process clause permits state to impose burden of             production on recidivist  defendant who challenges  validity             of prior  conviction under Boykin  v. Alabama, 395  U.S. 238                                        __________________             (1969)).    Nonetheless,  both  Isaacs  and  the  Government             contend  that guidance  on this  issue  can be  found in  an             analysis of two Supreme Court cases handed down prior to the             implementation of  the Sentencing Guidelines:  United States                                                            _____________                                              ____________________             4The government also argues that the interests of comity and             judicial economy suggest  that prior convictions should  not             be reviewed at  sentencing.  These arguments do  not hold as             much  water  as they  might  since they  have  been rejected             already  by  this  court  in  Paleo.   As  the  Paleo  court                                           _____             _____             recognized,  "`comity' considerations  are  absent (or  less             weighty) . .  . when a  federal court refuses  to rely on  a             state conviction as a basis for imposing a  federal sentence             for a federal  crime."  Paleo,  967 F.2d at 12.   Similarly,                                     _____             judicial  economy is  not a  reason  to preclude  collateral             review because this concern can be dealt with by placing the             burden of proof on the defendant.  Id. at 12-13.                                                 ___                                          12             v. Tucker,  404 U.S. 443  (1972), and Burgett v.  Texas, 389             _________                             _________________             U.S. 109 (1967).                         Tucker involved  a collateral  challenge under  28                       ______             U.S.C.   2255  to a sentence  based in part on  two previous             convictions later shown  to have been obtained  in violation             of Gideon v.  Wainwright, 372 U.S. 335 (1963).   It had been                _____________________             "conclusively  determined"  in   a  collateral  state  court             proceeding that the prior convictions were "constitutionally             invalid."   Tucker, 404  U.S. at 444-45.   The  Tucker Court                         ______                              ______             held that the case should  be remanded to the district court             for  reconsideration  of  the   sentence  imposed  upon  the             defendant because the sentence was "founded at least in part             upon misinformation of  constitutional magnitude."   Id.  at                                                                  ___             447.  As the Tucker Court explained, "the real question here                          ______             is not  whether the results  of the . .  . proceedings might             have been different if the  respondent had had counsel,  but             whether the sentence . . .  might have been different if the             sentencing  judge  had known  that  . .  .  the respondent's             previous convictions had  been unconstitutionally obtained."             Id. at 448.               ___                       The Tucker  Court's  holding does  not  provide  a                           ______             basis for finding that a  defendant has a right to challenge             prior convictions at sentencing for the first time.   Tucker                                                                   ______             addresses  the situation  where prior  convictions  that are             used to enhance a sentence  have been found previously to be                                          13             unconstitutional -- not the situation addressed here,  where             the   prior  conviction   has  not  previously   been  found             unconstitutional.  Tucker thus does not aid us.                                ______                       Burgett, which also  addressed a Gideon violation,                       _______                          ______             is more  relevant.    In  the Burgett  case,  the  defendant                                           _______             challenged  a  sentence   enhancement  based   on  a   prior             conviction that on its face appeared to be unconstitutional,             though there had been no  prior determination that it was in             fact unconstitutional.   The certified copy of  the judgment             offered by the  Government at trial to prove  the conviction             in  question  stated  that the  defendant  had  been without             counsel.  The  Burgett Court held that it  would be improper                            _______             to  presume from  a  silent record  that  the defendant  had             waived  his  right  to  counsel  and  that,  therefore,  the             judgment of conviction raised "a presumption that petitioner             was denied his right to counsel."  Burgett, 389 U.S. at 114.                                                _______             In language  that foreshadows  the decision  in Tucker,  the                                                             ______             Burgett Court went on to  say that "[t]o permit a conviction             _______             obtained in  violation of  Gideon v. Wainwright  to be  used                                        ____________________             against   a  person  either  to  support  guilt  or  enhance             punishment  for  another offense  .  .  .  is to  erode  the             principle of that case."  Id. at 115.                                       ___                       We  agree   with  the  Eleventh   Circuit's  Roman                                                                    _____             decision that the appropriate rule to be teased from Burgett                                                                  _______             is   that  the  Constitution   requires  a  review   of  the                                          14             constitutionality  of prior  convictions at  sentencing only             where  the prior conviction  is "presumptively void."5   989             F.2d at 1120.  The Roman court, however, was not required to                                _____             and did not reach the  question of what kinds of convictions             are  "presumptively  void."    We  examine  that  additional             question  to  determine  whether  the   district  court  was             required to review Isaacs' ineffective assistance of counsel             claim.                       The Government suggests  that "presumptively void"             convictions may include  a claim of lack of  counsel but not                                              ____________________             5In  a thoughtful concurring  opinion in Roman,  Chief Judge                                                      _____             Tjoflat  disagreed with  the "presumptively  void" test  and             suggested instead that the sentencing court must entertain a             constitutional  challenge to a prior conviction only if "(1)             the  offender  denies  the conduct,  and  (2)  the objection             undermines the presumption associated with the  conviction."             989 F.2d at 1129.                       We do not  adopt the two-part test  recommended by             Chief Judge  Tjoflat primarily  because we  do not  think it             appropriate  to require a  defendant to deny  the underlying             conduct of a prior conviction  in order to challenge the use             of the  conviction under   4A1.2.   When  confronted with  a             similar argument, concerning  a defendant unconstitutionally             convicted  but allegedly guilty of the underlying conduct of             the conviction, the Tucker Court replied that "[i]t would be                                 ______             . .  .  callous  to  assume,  now  that  the  constitutional             invalidity  of  the  respondent's  previous  convictions  is             clear,  that  the  trial  judge  will  upon  reconsideration             `undoubtedly'  impose the same sentence he imposed in 1953."             Tucker, 404  U.S. at  449 n.8.   Citing Burgett,  the Tucker             ______                                  _______       ______             Court  also  expressed  a   concern  that  the  use  of   an             unconstitutional  conviction  to  enhance a  sentence  would             erode the violated constitutional principle.  Id. at 449.                                                            ___                       Moreover,   the   Sentencing   Guidelines  already             provide  a sentencing court  with the authority  to impose a             sentence that reflects prior criminal conduct not taken into             account  by valid prior  convictions.  See  U.S.S.G.  4A1.3,                                                    ___             p.s. (Adequacy of Criminal History Category).                                          15             ineffective assistance  of counsel, citing  United States v.                                                         ________________             Custis,  988 F.2d  1355   (4th Cir. 1993).   In  Custis, the             ______                                           ______             Fourth Circuit found that the Gideon violations at issue  in                                           ______             Burgett  and  Tucker  were  "different  in  kind"  from  the             _______       ______             ineffective assistance  of counsel claims, noting  that lack             of counsel claims "will ordinarily lend themselves to facial             review  from  the  state  court  documents  offered  by  the             government to establish the conviction."  Id. at 1360-61.                                                       ___                       Although  we agree with the outcome the Government             recommends, we think it necessary to clarify the appropriate             test  to determine  whether a  conviction is  "presumptively             void."                         As  an  initial  matter,  a  prior  conviction  is             "presumptively  void" if a  constitutional violation  can be             found  on the face of  the prior conviction, without further             factual  investigation.     Contrary  to   the  Government's             position, the Burgett Court did not rest its decision on the                           _______             difference between  lack of  counsel claims  and ineffective             assistance of counsel claims -- a distinction that generally             has not  been meaningful since  Powell v. Alabama,  287 U.S.                                             _________________             45, 57 (1932).  See McMann v. Richardson, 397 U.S. 759,  771                             ___ ____________________             n.14 (1970).  Instead, we note that the Burgett decision was                                                     _______             based on a judgment facially showing lack of any counsel and             that most claims  of inadequacy of  counsel are unlikely  to             meet its "presumptively void" test.  Indeed, even as to lack                                          16             of counsel, the Supreme Court  in Parke noted that "[a]t the                                               _____             time the prior  conviction at issue in  Burgett was entered,                                                     _______             state criminal defendants'  federal constitutional right  to             counsel  had  not  yet  been   recognized,  and  so  it  was             reasonable to  presume that the  defendant had not  waived a             right he did not possess."  Parke, 113 S. Ct. at 524.                                         _____                       Under limited circumstances, however, a conviction             may  be  "presumptively  void"  even  if  a   constitutional             violation  cannot  be  found  on  the   face  of  the  prior             conviction.   The  Supreme Court  has  recognized that  some             constitutional violations are so serious as to undermine the             reliability  of  an  entire criminal  proceeding.    Rose v.                                                                  _______             Clark,  478 U.S. 570,  577-578 (1986) ("Without  these basic             _____             protections, a  criminal  trial cannot  reliably  serve  its             function   as  a  vehicle  for  determination  of  guilt  or             innocence, and  no criminal  punishment may  be regarded  as             fundamentally fair.").  Such violations, termed  "structural             errors,"  are  not  subject to  "harmless  error"  analysis.             Sullivan v. Louisiana,  No. 92-5129, 61 U.S.L.W.  4518, 4519             _____________________             (June  1,  1993) (erroneous  jury instruction  on reasonable             doubt);  see also  Arizona v. Fulminante,  111 S.  Ct. 1246,                      ________  _____________________             1265  (1991) (opinion  of Rehnquist,  C.J.,  for the  Court)             (listing  as examples  of  errors that  are  not subject  to             harmless error analysis:  total deprivation of the  right to             counsel  at  trial;  judicial bias;  unlawful  exclusion  of                                          17             members  of  the   defendant's  race  from  a   grand  jury;             deprivation  of the  right to self-representation  at trial;             and deprivation of  the right to a public trial).   Where an             offender  challenges the validity  of a prior  conviction on             "structural"  grounds, therefore,  a  district court  should             entertain the challenge  whether or not the error appears on             the face of the prior conviction.6                        We  conclude that  the  district court  should not             have  entertained Isaacs' challenge to the prior conviction.             First, Isaacs' challenge required the district court in this             case to  go beyond the  evidence of conviction  presented by             the Government and conduct a factual investigation.  Second,             Isaacs  did not challenge his prior conviction on structural             grounds.   It  is  of course  well settled  that ineffective             assistance of counsel claims are subject to "harmless error"             review.   Strickland  v. Washington,  466  U.S. 668  (1984).                       _________________________             Absent facial invalidity  or an allegation of  a "structural             error,"  Isaacs'  prior  conviction  is  not  "presumptively                                              ____________________             6We note  that  this approach  is consistent  with the  test             recently  formulated by  the Fourth Circuit.   In  Byrd, the                                                                ____             Fourth Circuit  held that  "district courts  are obliged  to             hear   constitutional   challenges    to   predicate   state             convictions  in  federal  sentencing  proceedings only  when             prejudice  can be  presumed from the  alleged constitutional             violation, regardless of  the facts of the  particular case;             and  when  the right  asserted  is so  fundamental  that its             violation  would undercut  confidence in  the  guilt of  the             defendant."  Byrd, 995 F.2d at 540.                           ____                                          18             void."     Hence,  the   district  court  should   not  have             entertained Isaacs' challenge.7             II.       Isaacs' Appeal                       ______________                       Isaacs  appeals the  district court's  decision to             admit into evidence  at trial an indictment  brought against             his father and  cousins regarding his father's  loansharking             operation.  In addition, Isaacs challenges  the Government's             examination  of  witnesses  that  brought  out  evidence  of             Isaacs' family's criminal activity.                       These  arguments are  unpersuasive.   Although the             admitted evidence had the potential of prejudicing Isaacs on             the basis of the bad acts of others,  the evidence was quite             relevant.  See Fed. R. Evid. 403 (relevant evidence excluded                        ___             only if  probative  value is  "substantially outweighed"  by             danger of unfair  prejudice).  As the Government argues, the             indictment  provides a  context to  the  statements made  by             Isaacs to  Ayala, a motive for Isaacs' actions, and evidence                                              ____________________             7We  need   not  respond  to  the   government's  additional             contention that the district court erred in determining that             Isaacs'  right  to  effective  assistance   of  counsel  was             violated at his  1980 certification hearing because  we find             that    the   court   should    not   have   addressed   the             constitutionality  of the prior  conviction.  Nor,  in these             circumstances,  need we  anticipate  the applicability  of a             variation  of the  "procedural default"  test for  obtaining             collateral review of a prior conviction.  See,  e.g., United                                                       ___   ____  ______             States  v. Frady, 456  U.S. 152, 166  (1982) (affirming "the             ________________             well-settled principle  that to  obtain collateral relief  a             prisoner must clear a significantly higher hurdle than would             exist on direct appeal").                                          19             of  the  requisite  intent.   Moreover,  the  district judge             provided  several  warnings   to  the  jury  to   limit  the             potentially improper effect  of the evidence.   For example,             the  trial  judge  charged  the jury  that  "[t]here  is  no             evidence  that anybody before  you in that  [Leonard Isaacs'             case] has been  convicted.  It serves as  background to this             case to  say that  Mr. Leonard Isaacs  was accused  of these             events, together with some other people."                         Likewise,   the   cross-examination    of   Isaacs             regarding  his knowledge  of his  family's  alleged criminal             activities  did  not  improperly   prejudice  him.    Isaacs             testified that his  contact with Ayala was  not extortionate             and  that he did not conspire with his father to collect the             debt.   The  questions asked  by  the Government  concerning             Isaacs'  knowledge  of  his  family's  alleged  loansharking             activity  directly   confronted  this  testimony   and  were             therefore proper.                       Finally, given the  substantial evidence of  guilt             provided  by the  tape recordings  of conversations  between             Isaacs and Ayala and the  evidence provided by Ayala's nine-             year-old  daughter, who testified  that Isaacs used  his own             gun in rebuttal to Isaacs' testimony that he was examining a             gun owned by Ayala, any error in this regard was harmless.                                      CONCLUSION                                      __________                                          20                       Accordingly, the judgment of the district court is             reversed  in part  and  affirmed  in part.    We remand  for             resentencing consistent with this opinion.                                          21                       TORRUELLA, Circuit Judge (Dissenting in part).   I                                  _____________             agree  with the majority's lucid treatment of the collateral             attack issue,  and believe that it is  an important addition             to our jurisprudence.   Unfortunately, I cannot  endorse the             entire  opinion.      The   majority   summarily   dismisses             appellant's   arguments   concerning  the   alleged   404(b)             evidence.   On  close  examination,  however,  the  82  page             indictment of appellant's father and other relatives,  which             did  not  mention appellant,  was  unfairly prejudicial  and             should have  been excluded  under Federal  Rule of  Evidence             403.  Appellant deserves a new trial on the merits.                       I  begin with  a preliminary  matter.   While  the             majority  does not  cite  Rule 404(b),  it  uses the  Rule's             language when it states that the "bad acts" could be used to             show "motive" and "intent."  Furthermore, the parties argued             extensively under the Rule.  While I assume, thus, that Rule             404(b) is a part of the opinion, it should not be.                       Rule  404(b) excludes  the  use  of other  crimes,             wrongs or acts in order  to show a defendant's character and             action in conformity with it.  Such evidence must be crimes,             wrongs or acts  committed by the defendant or  by the person                                       ________________             who is sought to  be impeached.  United States v. David, 940                                              _____________    _____             F.2d 722,  736 (1st Cir.  1991) ("Objections  based on  Rule             404(b) may be raised only by the person whose 'other crimes,             wrongs,  or acts'  are attempted  to  be revealed");  United                                                                   ______                                         -19-                                          19             States  v. Gonz lez-S nchez,  825 F.2d  572,  583 (1st  Cir.             ______     ________________             1987)  ("Rule  404(b)  does not  exclude  evidence  of prior             crimes  of persons  other  than  the  defendant").   In  the             present  case  the  allegedly   404(b)  evidence  refers  to             evidence  introduced  of  other crimes,  wrongs  or  acts by             persons other than appellant.  It is thus inadmissible under                     __________             that rule.                        The     inapplicability     of     Rule     404(b)             notwithstanding, the  prejudicial impact  of the  indictment             substantially outweighed  any probative value.  It tarnished             appellant  merely  because  of  his  relationship  with  its             targets, and because  of its sheer  weight.  The  indictment             required over eighty  pages and forty-nine counts  to detail             the scope  of  the father's  racketeering  operation,  which             involved eleven  victims, hundreds of  thousands of dollars,             extortionate collection schemes,  and illegal debts.   To be             sure, it was  a formidable document describing  a formidable             criminal scheme.  However, it did not implicate appellant in             that  scheme in  any way.   The  danger that the  jury would             associate appellant with the scheme was too great to justify             admission of the indictment.  United States v. St. Michael's                                           _____________    _____________             Credit Union, 880 F.2d 579, 601-02 (1st Cir. 1989) (evidence             ____________             concerning  prior  bad  acts  of  father  was  impermissibly             prejudicial when defendant  was not implicated in them).  In                                         -20-                                          20             short, I believe  that the majority has discounted  the real             danger of guilt by association in this case.                       The  majority  contends  that  the indictment  was             relevant to show context, motive  and intent.  While I grant             that information  concerning Mr.  Isaacs disability  bore at             least some  relevance to  show motive,  I cannot fathom  any             need  to introduce the  indictment itself to  bring out this             point.   The use of the indictment was unfairly inflammatory             when  compared  with whatever  minimal  probative impact  it             might hold.  It was an abuse of discretion for the  district             court to admit the evidence.                                         -21-                                          21
