               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
