April 7, 1993  

                United States Court of Appeals
                    For the First Circuit
                                         

No. 91-1860

                        UNITED STATES,
                          Appellee,

                              v.

             JOSE DE JESUS-RIOS, a/k/a PAPO RIOS,
                    Defendant, Appellant.
                                         

No. 91-1933

                        UNITED STATES,
                          Appellee,

                              v.

                          EVA RIOS,
                     Defendant, Appellant.
                                         

        APPEALS FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF PUERTO RICO

         [Hon. Carmen C. Cerezo, U.S. District Judge]
                                                    
                                         
                            Before

                     Stahl, Circuit Judge,
                                         
          Aldrich and Coffin, Senior Circuit Judges.
                                                   
                                         

Gabriel  Hernandez Rivera  for appellant  Jose De  Jesus-Rios  and
                         
Juan  Acevedo-Cruz with whom Wilma E. Reveron-Collazo was on brief for
                                                 
appellant Eva Rios.
Jose  A. Quiles  Espinosa, Senior  Litigation Counsel,  with  whom
                         
Daniel F. Lopez  Romo, United  State Attorney, and  Antonio R.  Bazan,
                                                                 
Assistant United States Attorney, were on brief for appellee.
                                         

                        April 7, 1993
                                         

          STAHL,  Circuit  Judge.   Appellants Jose  de Jesus
                                

Rios ("Jose  Rios")  and his  cousin,  Eva Maria  Rios  ("Eva

Rios"), were convicted  of aiding and abetting  each other in

the importation  of approximately  196  kilograms of  cocaine

into the customs territory of  the United States in violation

of 18  U.S.C.   2  and 21 U.S.C.    952(a).   Appellants also

were  convicted  of aiding  and  abetting each  other  in the

possession with intent to  distribute cocaine in violation of

18 U.S.C.    2 and  21 U.S.C.    841(a)(1).  On  appeal, both

maintain that the evidence  was insufficient to support their

respective  convictions.    Eva  Rios also  argues  that  the

district court  erred in denying  her motion to  suppress the

pretrial identifications of her  by two government witnesses.

After  careful consideration  of  the record,  we affirm  the

conviction of Jose Rios and vacate that of Eva Rios.

                              I.
                                

                      Factual Background
                                        

           The  two  principal  government witnesses,  George

Rivera  Antron  ("Rivera")  and  Juan  Enrique  Mejias  Valle

("Mejias"),  brothers-in-law who  had known  each other  more

than thirty years, worked together  aboard a vessel named the

"Santa  Martina."   The  Santa  Martina, which  was  owned by

Rivera, transported  general  cargo between  the  islands  of

Puerto  Rico and St. Thomas.   Rivera made  his livelihood as

                             -2-
                              2

the  captain of the Santa Martina, and Mejias was employed as

his assistant. 

          On February  7, 1991, at  approximately 5:30  p.m.,

while Mejias  was working  on  the Santa  Martina, which  was

docked  at a  port in  St. Thomas,  two women  approached him

looking  for Rivera.  Mejias informed them that Rivera was on

an errand and would probably return around 6:00 p.m.  The two

women waited for  Rivera for  approximately fifteen  minutes,

during which time they engaged Mejias in casual conversation.

For reasons  unexplained in the record,  they departed before

Rivera returned to the boat.

          The following morning,  at approximately 8:00 a.m.,

one of the two women returned to the boat looking for Rivera.

Mejias, who  was preparing  the boat for  departure, informed

her that Rivera was on an errand and would return shortly.  A

few minutes later Rivera returned, and the woman, posing as a

commercial dealer  in detergent,  asked him to  transport ten

boxes of  detergent to Fajardo,  Puerto Rico.   Rivera agreed

and they made the necessary arrangements.   When Rivera asked

what name should be  entered on the receipt as  "sender," the

woman  responded "A &amp; A  Supplies."  When  asked what name to

enter  as receiver, she responded "Papo Rios."  At some point

during  their conversation,  the woman  told Rivera  that she

would  "send  the boxes  later."    The conversation  between

                             -3-
                              3

Rivera and the woman,  which was witnessed by  Mejias, lasted

somewhere between five and fifteen minutes.  

          Approximately one-half hour after she left, two men

drove  up to the dock in a truck  with the ten boxes.  One of

the men told Rivera that "the lady sent the boxes."  About an

hour  after the ten boxes were loaded onto the Santa Martina,

Rivera  and Mejias  departed St.  Thomas for  Fajardo, Puerto

Rico.

          The Santa  Martina  arrived in  Fajardo later  that

afternoon.  After docking the vessel,  Rivera went to customs

to enter all of his cargo.  On the way to customs, Rivera was

approached by Jose Rios, who --  as it turned out -- had been

a longtime  acquaintance of Rivera's.  Rivera  knew Jose Rios

as "Papo Rios."   Rivera asked Jose Rios to  accompany him to

customs to sign for the ten boxes being delivered to him.  On

the way  to customs,  Jose Rios  disclaimed ownership of  the

boxes, and told Rivera that he did not know why the boxes had

been sent to him.  At customs, however, Jose Rios signed  the

entry  declaration as the "owner"  of the ten  boxes.  Rafael

Figueroa, a  United States  customs agent who  witnessed Jose

Rios sign the declaration,  testified that Jose Rios appeared

"nervous" as he answered questions about his ownership of the

ten boxes. 

           After all  of the relevant  customs documents were

processed, Rivera, Jose Rios, and United States Customs Agent

                             -4-
                              4

Angel  Luis Villegas  Lopez ("Agent  Villegas"), went  to the

Santa Martina to unload its cargo.  As Jose Rios was carrying

one  of  the  boxes  off  the  boat,  Agent  Villegas  became

suspicious about its weight and decided to inspect it.  Agent

Villegas opened one  of the boxes and  discovered powder that

appeared to be cocaine.   Upon hearing that cocaine  may have

been discovered, Jose Rios disclaimed ownership of the boxes,

stated  that he  was  "going to  look  for the  owners,"  and

promptly departed the scene.

          Shortly  thereafter,  Agent  Villegas  conducted  a

field test  on the powder  in one  of the boxes.   That  test

yielded a positive result for  cocaine.1  The government then

seized the  Santa Martina, informing Rivera that  it would be

held  pending the  investigation.   Several  days later,  the

government  arrested Jose Rios, and began  its search for the

as  yet unidentified woman who  had contracted with Rivera to

ship the ten boxes to  Fajardo.  The facts leading up  to the

identification ofEva Rios asthat person aresummarized below.2

                    

1.  A subsequent  field test  and laboratory analysis  of the
powder in  the ten  boxes confirmed that  it was cocaine.   A
government witness  testified that the cocaine  had a "street
value" of as much as 40 million dollars.

2.  In reviewing  the  denial of  a motion  to suppress,  our
review is not  limited to the  transcript of the  suppression
hearing where, as here,  the defendant renewed her motion  at
trial.   See United States v.  Thomas, 875 F.2d 559,  562 n.2
                                     
(6th Cir.) (holding that appellate review of denial of motion
to suppress  may include evidence  adduced at  trial only  in
cases  where defendant  renews  the motion  at trial),  cert.
                                                             
denied, 493  U.S. 867  (1989).  See  also 4 Wayne  R. LaFave,
                                         

                             -5-
                              5

          On February  8, 1991,  both Rivera and  Mejias gave

verbal  descriptions of  the  woman who  had contracted  with

Rivera to  United States Customs Agent  Hector Marti Figueroa

("Agent Marti").   According to Agent Marti,  both Rivera and

Mejias described  the woman  as a  "Latin female"  with "dark

hair"  and  "white"  skin  who  was  "a  little  chubby"  and

approximately five feet, two inches tall.

          On February 11, 1991, Rivera  was interviewed again

by United  States Customs  Agent Juan Dania  ("Agent Dania"),

and Agent Marti.   Relying  upon written  notes, Agent  Dania

testified that Rivera described her as "white" with "shoulder

length  [black] hair"  and  "a full  face  .  . .  with  fine

features."3  The next  day, on February 12, Agents  Dania and

                    

Search  &amp;  Seizure    11.7(c),  at  519  (2d  ed. 1987)  ("If
                  
following [her] conviction the  defendant takes an appeal and
claims that [her] motion  to suppress was erroneously denied,
.  . .  the appellate  court  [must] consider  trial evidence
                                                    
favorable to .  . . the  defendant . .  . where the  pretrial
motion is renewed and reconsidered  by the trial judge during
the  course of trial.")  (emphasis in original).   Cf. United
                                                             
States v. Vargas, 633 F.2d 891, 895 n.6 (1st Cir. 1980) ("the
                
use of trial testimony to undermine the validity of an arrest
                                   
or search is apparently discouraged, at least when the motion
to suppress has not been renewed  and reconsidered during the
course of the trial") (emphasis in original).  

3.  At  the  suppression  hearing, Rivera  admitted  that  he
described the suspect to  Agent Dania as "white."   At trial,
however, Rivera  testified that  he used the  phrase "blanca-
attrigenado,"  which -- according to the English translations
offered by  both the government  and defense attorneys  -- is
apparently  equivalent  to  describing someone  as  a "light-
skinned black person."  Although a  description of Eva Rios's
actual  skin color does not appear anywhere in the record, it
is  apparent  from  the  government's  and  defense counsel's
briefs  that  the   phrase  "blanca-attrigenado"   accurately

                             -6-
                              6

Marti  also interviewed  Mejias.   Relying  upon his  written

notes, Agent Dania testified  that Mejias described the woman

as "white."

          Although the  record is not clear,  it appears that

Eva Rios became a  suspect based upon independent information

from a confidential informant.   Apparently relying upon that

information,  Agents Marti  and  Dania decided  to conduct  a

show-up   identification  procedure   using  Rivera   as  the

identifying witness  and Eva  Rios as the  potential suspect.

To that end,  on February  16, 1991, they  arranged with  Eva

Rios  to  meet them  in front  of  the United  States Customs

Building  in  St.  Thomas.    Immediately  after  making  the

arrangements  with Eva  Rios, Agent  Marti phoned  Rivera and

instructed him to be at the United States Customs Building by

11:30 a.m.  

          Upon  Rivera's arrival,   Agent Marti  informed him

that a suspect, named "Eva Rios," would be meeting the agents

on the steps of  the customs building sometime between  11:30

a.m.  and 12:00  p.m.   Marti also  informed Rivera  that the

purpose of  Eva  Rios's visit  was to  allow him  to make  an

identification of her.   Rivera  was instructed to  sit in  a

parked car  across the street from the  customs building, and

to signal the agents with a white handkerchief as  soon as he

                    

describes her skin color.   

                             -7-
                              7

could positively identify her as the woman with whom he spoke

on the morning of February 8, 1991.

          At some  point between  11:30 a.m. and  12:00 p.m.,

Eva Rios  arrived at the customs building.   Rivera testified

that  he saw her as she drove by,  as she parked her car, and

again as she walked by his  parked car.  He did not, however,

give a signal  to the officers until she  walked up to Agents

Marti and Dania, shook their hands, and sat down next to them

on the stairs of  the customs building.  Based  upon Rivera's

positive identification  of Eva Rios, Agents  Marti and Dania

arrested her on the spot.

          The record  reveals that  February 16, 1991,  was a

Saturday, Eva Rios's car was  the only car that drove  by the

customs building  during the  time Rivera  was in  his parked

car,  and,  while  several  women  "passed  by"  the  customs

building during that time, only Eva Rios stopped to talk with

the  agents.  Agents Marti and Dania also testified that they

would not  have arrested Eva  Rios but for  Rivera's positive

identification of  her.   Subsequently, on or  about February

22,  1991,  the  government  returned the  Santa  Martina  to

Rivera.

          On  February  25,  1991,  Rivera  and  Mejias  were

brought  to an  office in  the customs  building and  shown a

photo-spread  of six photographs, one of  which was Eva Rios.

Both Rivera  and Mejias  positively identified Eva  Rios from

                             -8-
                              8

the  photo  spread.    After  Rivera and  Mejias  made  their

respective identifications, Agent Marti, the agent  in charge

of  the procedure,  asked  both of  them  to sign  affidavits

attesting  to the  results.    They  also included  in  their

affidavits an  additional description of the  woman with whom

they spoke on February  8.  Rivera described her as  "a young

woman  . . . with  dark hair, light  brown complexion, thirty

years old . . . and somewhat fat."  Mejias described her as a

lady  "with light brown  skin, of average  height .  . . dark

hair and a little fat."  

          Agent Marti testified  that Rivera and  Mejias made

their   identifications  at   different   times  and   "never

encountered each  other at the office."4   When asked whether

he had  had any discussions  with Rivera about  the incident,

Mejias testified that  he ended  his employment  relationship

with  Rivera on  February 8,  1991, and  had not  seen Rivera

between  that date  and February  25, 1991,  the date  of the

photo spread identification.   During their  trial testimony,

Rivera and  Mejias also made in-court  identifications of Eva

Rios as the woman with whom they spoke on February 8, 1991.

                    

4.  Agent  Marti's testimony  on this question  was, however,
contradicted by Mejias, who testified  during the suppression
hearing  that,  on February  25, he  and  Rivera were  at the
office  at the same  time but  went into  the office  to make
their  identifications separately.    Mejias testified  that,
while he  waited in the hall to be called into the office, he
saw Rivera walk into and out of the office.

                             -9-
                              9

          At trial,  both defendants took the  stand in their

own defense.  Jose Rios  testified that he had been  asked by

his cousin,  Evaristo Rios (Eva  Rios's brother), to  pick up

the  boxes on  board  the  Santa  Martina.    He  denied  any

knowledge that  the boxes contained cocaine,  and claimed not

to have spoken with Eva Rios  for seven or eight years.  When

asked  why he signed the  customs document as  the "owner" of

the ten boxes, he stated  that he did so in order to  pick up

the boxes for his cousin.

          As well as arguing  that she had been misidentified

by  Rivera and Mejias,  Eva Rios presented  an alibi defense.

Essentially, her alibi witnesses testified that she could not

have  been  on  the St.  Thomas  waterfront  at  the time  in

question.  One witness,  who worked at the school  Eva Rios's

daughter  attends,  remembered  Eva  Rios  dropping  off  her

daughter  at the school at  around 7:30 a.m.,  on February 8,

1991.    An  employee  at  Eva  Rios's  place  of  employment

testified that Eva Rios was at work on February 8, 1991,  and

usually arrived at  work between  8:00-8:10 a.m.   A  traffic

officer  in St. Thomas  further testified that,  based on the

common traffic conditions  in St. Thomas, Eva  Rios would not

have  been able to travel  from her daughter's  school to the

waterfront  and then to her office between 7:30 a.m. and 8:10

a.m. 

                             -10-
                              10

          On April 30, 1991, the jury found Jose and Eva Rios

guilty  on both  counts.   Jose  Rios  was sentenced  to  210

months, and Eva Rios  to 188 months, of imprisonment.   These

appeals followed.

                             II.
                                

                          Discussion
                                    

A.  The  Admissibility of the Pretrial Identifications of Eva
                                                             

Rios
    

          Eva  Rios's principal contention  on appeal is that

Rivera's February  16, 1991, pretrial  identification of  her

was  the  result of  a  highly  suggestive, prejudicial,  and

unlawful showup procedure, the introduction of which violated

her  due process  rights.    She  also argues  that  Rivera's

February  25, 1991,  and  his  in-court identifications  were

tainted   by  the   previous   identification,  and   should,

therefore, also have been kept from the jury.5    

          We  will  uphold a  district  court's  denial of  a

motion  to suppress  if any  reasonable view of  the evidence

supports it.   See, e.g.,  United States  v. McLaughlin,  957
                                                       

F.2d 12, 16 (1st Cir.  1992).  Moreover, the findings of  the

                    

5.  Additionally, Eva Rios argues that the February 25, 1991,
photo   spread   identification  procedure   was  irregularly
administered  and,  therefore, rendered  Mejias's independent
identification of her inadmissible as  well.  For the reasons
amply addressed  in the district court's  opinion, see United
                                                             
States  v. De  Jesus Rios,  No. 91-0084CCC,  slip op.  at 4-5
                         
(D.P.R. April 23, 1991), we find this argument meritless, and
see no need to address it further.

                             -11-
                              11

district  court  after  a hearing  on  a  pretrial motion  to

suppress  are  binding  on  appeal unless  they  are  clearly

erroneous.  See, e.g., id. at 17.  
                          

          To  determine whether evidence procured as a result

of a pretrial identification  procedure should be excluded, a

district  court must  conduct  a two-pronged  inquiry.   See,
                                                            

e.g.,  Allen  v. Massachusetts,  926  F.2d 74,  81  (1st Cir.
                              

1991);  United States v. Maguire, 918 F.2d 254, 263 (1st Cir.
                                

1990), cert. denied, 111 S. Ct. 2861 (1991); United States v.
                                                          

Bouthot, 878 F.2d  1506, 1514  (1st Cir. 1989).   First,  the
       

court  must determine whether the procedure was impermissibly

suggestive.   See, e.g., Maguire,  918 F.2d at  263.   If the
                                

court finds  the procedure impermissibly suggestive,  it must

then inquire  whether, under  the totality  of circumstances,

the   identification  itself   was   reliable,  despite   the

suggestive procedure.  See, e.g., Allen, 926 F.2d at 81.  The
                                       

factors to consider under the reliability prong are fivefold:

          (1)  the  opportunity of  the  witness to
          view the  criminal  at the  time  of  the
          crime;   (2)   the  witness'   degree  of
          attention;  (3)  the   accuracy  of   the
          witness'   prior   description   of   the
          criminal;  (4)  the  level  of  certainty
          demonstrated  by  the   witness  at   the
          confrontation; and (5) the length of time
          between the crime and the confrontation.

Id.  (quoting United States v.  Drougas, 748 F.2d  8, 27 (1st
                                       

Cir. 1984)) (citing  Neil v. Biggers,  409 U.S. 188,  199-200
                                    

                             -12-
                              12

(1972)).            Before excluding identification evidence,

the   court  must  be  persuaded  that  there  was  "`a  very

substantial  likelihood  of irreparable  misidentification.'"

Bouthot, 878 F.2d at 1514 (quoting Simmons v. United  States,
                                                            

390  U.S. 377, 384  (1968)).    A court must  also be mindful

that "`it is only  in extraordinary cases that identification

evidence should be  withheld from the  jury.'"  Maguire,  918
                                                       

F.2d at 264 (quoting United States v. Turner, 892 F.2d 11, 14
                                            

(1st Cir. 1989)).  See also Bouthot, 878 F.2d at 1516 n.11.
                                   

          In  applying  the first  prong  of  this test,  the

district   court  concluded   that  the  one   person  showup

identification procedure  was impermissibly suggestive.   See
                                                             

De Jesus Rios, slip op. at 2 ("The agents in this case were .
             

. . oblivious  to the almost uniform criticism of  show up in

their  use   of  this   unfair  and  discredited   method  of

investigation.") (internal quotations  and citation  omitted)

("`The practice of showing suspects singly to persons for the

purpose of identification[,] and  not as part of a  [lineup,]

has been widely condemned.'")  (quoting Stovall v. Denno, 388
                                                        

U.S.  293, 302  (1967)).   Applying the  second prong  of the

test,  however,  the district  court  concluded  -- from  the

totality of the circumstances -- that Rivera's identification

was nevertheless reliable.  See De Jesus Rios, slip  op. at 4
                                             

(finding "no significant  difference between the descriptions

[Rivera]  gave before and after the [showup]").  As a result,

                             -13-
                              13

the court denied Eva Rios's motion to suppress that evidence.

See id. at 2-4.          After a close review of  the record,
       

we agree with the district court's conclusion that the showup

procedure  was impermissibly suggestive but disagree with its

determination  that  Rivera's  identification  was  otherwise

reliable.  While application of the first, second,  and fifth

factors  enumerated above  does not  give us  pause,6  we are

troubled  by  application of  the  third  and fourth  factors

(i.e., the accuracy of the witness's prior description of the
     

criminal,   and  the   level   of  certainty   that   witness

demonstrated at the confrontation) to the facts of this case.

Agent  Marti testified  that,  on the  date  the cocaine  was

discovered, February 8, 1991, Rivera described the suspect as

"white"  and  approximately  five   feet,  two  inches  tall.

Rivera's  testimony  at  the  suppression hearing  and  Agent

Dania's trial testimony revealed that during his February 11,

1991, interview with Agent  Dania, Rivera again described her

as "white."  It  was not until  after the February 16,  1991,

showup  that Rivera  described the  suspect as  having "light

                    

6.  It  is clear from the  record that Rivera  had ample time
(at least five  minutes) to view the suspect on  the date the
arrangements were made to  ship the purported detergent, that
he paid  some degree of attention to  the person at the time,
and  that eight days between the date of the cocaine shipment
and the showup was not unreasonable.

                             -14-
                              14

brown" skin.7   Moreover, Rivera  also failed  to provide  an

accurate description of her height (five feet, six inches) at

either of his pre-showup descriptions.8

          The  record  also contains  uncontroverted evidence

that, despite  having been  asked at  the February  16, 1991,

showup to signal the agents when he positively identified Eva

Rios, Rivera waited until after she approached the agents and

began speaking with them (as scheduled) to signal.  We hardly

think  that this  constitutes a  high degree of  certainty on

Rivera's part, particularly in  light of the showup procedure

at issue here.   Prior  to that showup,  Rivera was  informed

that  the agents  were meeting  the suspect  in front  of the

customs building at a specific time.  While a few other women

also may  have walked by  the customs building  that morning,

only Eva Rios stopped to speak with the agents.9  
    

                    

7.  Accordingly, the  district court's finding that there was
"no significant  difference" between Rivera's  pre-showup and
post-showup descriptions of the suspect is clearly erroneous.

8.  During  the suppression  hearing, Agent  Marti --  who is
approximately five feet, seven inches tall -- testified that,
on February 8, 1991, Rivera described the suspect as being "a
little bit more  or less like my  [Agent Marti] height."   At
trial, however, he admitted that, on February 8, 1991, Rivera
described the suspect as five feet, two inches tall.

9.  Our    analysis   of   the    reliability   of   Rivera's
identification is further informed by the undisputed evidence
that the  government seized Rivera's boat, his only source of
livelihood, on the date  of the crime, and informed  him that
he  would  receive  it  only after  their  investigation  was
completed.    The record  also  reveals  that the  government
returned his  boat  less  than  a  week  after  his  positive
identification  of Eva Rios.  We think that these facts, when

                             -15-
                              15

          Based upon the  above analysis, therefore, we  find

that    Rivera's    pretrial   identifications    were   both

impermissibly suggestive and unreliable.  And, as this is not

a case of "minimal suggestivity . . . [that could  have been]
                  

cured  at   trial,"  Maguire,  918  F.2d   at  264  (emphasis
                            

supplied),  we  conclude  that his  identification  testimony

should have been kept from the jury.

          Our inquiry does not, however,  end here.  We  must

now   determine  whether  the   district  court's  error  was

"harmless beyond a reasonable doubt."  Arizona v. Fulminante,
                                                            

111 S. Ct. 1246, 1265 (1991).  Outside of Rivera's testimony,

the only other evidence linking Eva Rios to the crime was the

testimony  of  Mejias,  Rivera's  brother-in-law  and  former

employee.   Mejias testified that  he spoke with  the suspect

for approximately  fifteen minutes  on February 7,  1991, the

day before  the crime.   He  spoke with  her  again the  next

morning  when she  inquired  about Rivera's  whereabouts, and

witnessed the subsequent conversation between her and Rivera.

He gave descriptions of her on February 8, 12, 25, and during

his trial testimony.  Despite having described her skin color

as "white" on both February 8 and 12, he selected her picture

on February 25, from a photo spread with photos of five other

women with  similar characteristics.   Also on that  date, he

                    

placed alongside  the one-person showup and  Rivera's belated
identification, cast serious further doubt on the reliability
                            
of that identification.

                             -16-
                              16

described her  as having  "light brown skin."   Additionally,

during his trial testimony, he identified her in court as the

woman he spoke with on February 7 and 8.

          Although the harmless  error question is  close, we

cannot conclude -- under the particular circumstances of this

case  -- that  the  error was  harmless  beyond a  reasonable

doubt.  First,  there is no  way for us  to discern the  role

that   Rivera's   identification   played   in   the   jury's

deliberations.   We are concerned that the jury may have been

persuaded to convict  by the  very fact that  there were  two
                                                             

witnesses  who identified Eva Rios.  It is also possible that

the  jury  relied solely  upon  the  testimony of  Rivera  in

reaching  its conclusion.    Thus, we  find reasonable  doubt

exists as to whether  the jury would have convicted  Eva Rios

based solely upon  Mejias's identification testimony.10   See
                                                             

Clark v. Moran,  942 F.2d 24, 27 (1st Cir. 1991) ("there must
              

                    

10.  We  note that  there  exists  at  least some  basis  for
questioning Mejias's testimony that  his photo-spread and in-
court  identifications of  Eva  Rios were  not influenced  by
Rivera's  showup  identification.    Mejias and  Rivera  were
brothers-in-law of more than thirty years who worked together
on Rivera's  boat.  Despite their  close relationship, Mejias
testified that he had no contact with Rivera between February
8,  1991,  (the date  on which  he  and Rivera  described the
suspect as having "white" skin), and February  25, 1991, (the
date  on  which they  both  described the  suspect  as having
"light  brown" skin  and selected  Eva Rios's picture  from a
photo-spread).   This testimony,  coupled with the  fact that
Mejias offered no explanation as to what caused him to change
his description of the suspect, may well have led the jury to
doubt his credibility on this critical question.   

                             -17-
                              17

be `no reasonable doubt' that the jury would have reached the

same  verdict without having  received the tainted evidence")

(quoting  Milton v.  Wainwright, 407  U.S. 371,  377 (1972)).
                               

Cf.  Coppola  v.  Powell,  878  F.2d  1562,  1571  (1st Cir.)
                        

(holding no harmless error where improperly admitted evidence

"may have  been the  clincher" in the  jury's deliberations),

cert. denied, 493 U.S. 969 (1989).
            

          Finally,  this  is  not  a  case  of  "overwhelming

evidence  of guilt."  Wainwright, 407 U.S. at 377; Moran, 942
                                                        

F.2d  at  27.   Indeed,  the  entire  case  against Eva  Rios

depended  upon  the jury's  having  credited  the Rivera  and

Mejias  identifications  and  rejected her  alibi  defense.11

Under these  circumstances, we  cannot say that  the district

court's error  was harmless beyond  a reasonable doubt.   Cf.
                                                             

Coppola, 878 F.2d at 1571 (holding no harmless  error despite
       

finding that independent evidence indicated it  was "probable

that  [defendant] committed  the  crime").   Accordingly, Eva

Rios's conviction cannot stand.12

B.  Sufficiency of the Evidence Against Jose Rios
                                                 

                    

11.  Our harmless  error analysis might be  different had the
government's case against Eva  Rios included the testimony of
the confidential informant, the two men who delivered the ten
boxes of purported detergent  to the boat, an eyewitness  who
was not a  potential suspect  in the case,  or some  physical
evidence linking her to the crime.  

12.  We need  not address, therefore,  Eva Rios's alternative
argument that the evidence was insufficient to convict her.

                             -18-
                              18

          Jose  Rios  asserts  that  there  was  insufficient

evidence to find  him guilty  of aiding and  abetting in  the

violation of  21 U.S.C.   952(a)13  (importation of cocaine),

and  21  U.S.C.     841(a)(1)14 (possession  with  intent  to

distribute cocaine).   As such,  he argues that  the district

court erroneously denied his  Rule 29(a) motions for judgment

of acquittal. 

          "In reviewing a properly preserved  Rule 29 motion,

we  examine  the  evidence  and  all   legitimate  inferences

therefrom in the  light most favorable  to the government  to

determine  whether a  rational  jury could  have found  guilt
                                          

beyond  a  reasonable  doubt."   United  States  v.  Morales-
                                                             

Cartagena,  Nos. 91-2079,  2080,  slip  op.  at 2  (1st  Cir.
         

February 23, 1993) (emphasis added).   See also United States
                                                             

v. Echeverri, 982 F.2d 675, 677 (1st Cir. 1993) (To  uphold a
            

conviction, the  court must  "satisfy itself that  the guilty

verdict  finds  support  in  `a plausible  rendition  of  the

record.'") (quoting United States v. Ortiz, 966 F.2d 707, 711
                                          

(1st  Cir. 1992), cert. denied, 113 S.  Ct. 1005 (1993)).  In
                              

making  this  determination,  the   court  must  resolve  all

                    

13.  21 U.S.C.    952(a) provides that it  "shall be unlawful
to  import into the  customs territory  of the  United States
from any place outside thereof (but within the United States)
. . . [a] controlled substance . . . ."

14.  21  U.S.C.     841(a)(1)  provides  that  it  "shall  be
unlawful  for  any  person  knowingly  or  intentionally"  to
"possess with intent . .  . to distribute . . .  a controlled
substance . . . ."

                             -19-
                              19

credibility issues in favor of the verdict.  United States v.
                                                          

Nueva,  979 F.2d 880, 883 (1st Cir. 1992), cert. denied, 1993
                                                       

WL 38626 (U.S. March 22, 1993) (No. 92-7536).

          To  prove a  violation of 21  U.S.C.    952(a), the

government  must  show  beyond  a  reasonable  doubt  that  a

defendant knowingly  or intentionally imported, or  caused to

be  imported,   a  controlled  substance  into   the  customs

territory  of  the  United  States.    See United  States  v.
                                                         

Alvarado, 982 F.2d 659, 663 (1st Cir. 1992).  See also United
                                                             

States v. Ocampo-Guarin,  968 F.2d 1406,  1409 n.2 (1st  Cir.
                       

1992) ("This statute `requires little else but a showing that

a defendant has knowingly brought a controlled substance with

him from  abroad into  the United States.'")  (quoting United
                                                             

States  v. McKenzie,  818  F.2d 115,  118  (1st Cir.  1987)).
                   

"Criminal   intent   may,  of   course,   be   inferred  from

circumstantial evidence." Morales-Cartagena, slip op. at 5.  
                                           

          To prove a violation of 21 U.S.C.    841(a)(1), the

government  must  show  beyond  a  reasonable  doubt  that  a

defendant knowingly or  intentionally possessed a  controlled

substance with  intent to  distribute it.   United States  v.
                                                         

Gomez-Villamizar,  981 F.2d  621,  624 (1st  Cir.  1992).   A
                

defendant can  be found  guilty  under this  statute if  s/he

merely   has  constructive   possession  of   the  controlled

substance.  Id.  The quantity of drugs involved is sufficient
               

to create an inference that a defendant knew that it would be

                             -20-
                              20

distributed.   Id. See also United States v. Vargas, 945 F.2d
                                                   

426, 428-29 (1st  Cir. 1991) (holding that possession  of one

kilogram of cocaine is enough  to support inference of intent

to distribute).

          Jose Rios argues that the evidence was insufficient

because (1) the government  failed to prove that he  made any

contacts  with the person who  sent the cocaine  prior to its

shipment,  and (2) the only evidence linking Jose Rios to the

crime was his presence at the dock in Fajardo.  Unfortunately

for appellant, these arguments fall well short of the mark.

          Evidence in the  record supports an  inference that

Jose  Rios  did have  contact with  the  sender prior  to the

shipment.  For instance, the sender instructed Rivera to fill

in the name  of "Papo Rios" on the receipt  as the individual

who would receive the shipment.  Testimony revealed that Jose

Rios also  went by the name  of "Papo Rios."   And, Jose Rios

was  the individual who greeted Rivera on the dock in Fajardo

to pick up the ten boxes.  Further, despite having disclaimed

ownership  of  the ten  boxes, Jose  Rios signed  the customs

document as the "owner" of the ten boxes.

          Jose Rios's defense turned  upon the jury believing

his story  about having  been  duped by  his cousin  Evaristo

Rios.   Unfortunately for him, it appears that the jury found

his  story  unpersuasive.    Having  carefully  reviewed  the

                             -21-
                              21

record,  we think that there is ample evidence to support his

conviction.  Accordingly, we do not disturb it.

                             III.
                                 

                          Conclusion
                                    

          In sum,  for the  reasons herein stated,  we vacate

the judgment of  conviction as  to Eva Rios,  and affirm  the

judgment of conviction as to Jose Rios.

          In Appeal No.  91-1933, the judgment of  conviction
                                                             

is vacated and the  case is remanded for further  proceedings
                                                             

not inconsistent with this opinion.
                                   

          In Appeal No.  91-1860, the judgment  of conviction
                                                             

is affirmed.
            

                             -22-
                              22
