
USCA1 Opinion

	




          April 7, 1993                              United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                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.                                          I.                                          __                                  Factual Background                                  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 & 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  &  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.                                         II.                                         ___                                      Discussion                                      Discussion                                      __________            A.  The  Admissibility of the Pretrial Identifications of Eva            A.  The  Admissibility of the Pretrial Identifications of Eva            _____________________________________________________________            Rios            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            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.                                         III.                                         ____                                      Conclusion                                      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                      In Appeal No.  91-1933, the judgment of  conviction                      ___________________________________________________            is vacated and the  case is remanded for further  proceedings            is vacated and the  case is remanded for further  proceedings            _____________________________________________________________            not inconsistent with this opinion.            not inconsistent with this opinion.            ___________________________________                      In Appeal No.  91-1860, the judgment  of conviction                      In Appeal No.  91-1860, the judgment  of conviction                      ___________________________________________________            is affirmed.            is affirmed.            ____________                                         -22-                                          22
