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       [NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT]
                 United States Court of Appeals
                     For the First Circuit





No. 98-1706

                          UNITED STATES,

                            Appellee,

                                v.

                        DONALD PAUL DESIR,

                      Defendant, Appellant.



           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF RHODE ISLAND

           [Hon. Ernest C. Torres, U.S. District Judge]



                              Before

                     Torruella, Chief Judge,
                Campbell, Senior Circuit Judge,
                   and Lynch, Circuit Judge.
                                
                                
                                
                                
     Scott F. Johnson and Stein, Volinsky & Callaghan, P.A. on
brief for appellant.
     Margaret E. Curran, United States Attorney, and Edwin J. Gale,
Assistant United States Attorney, on brief for appellee.





May 24, 1999



                                
                                

            Per Curiam.  Upon careful review of the briefs and
  record, we conclude that this appeal clearly presents no
  substantial issue and that oral argument would not be of
  assistance to us.  We note that many of defendant's appellate
  contentions are raised for the first time in this court.
             1.  Entrapment.  The confidential informant's
  testimony provided sufficient evidence that defendant was not
  entrapped.  The jury apparently found the confidential
  informant credible notwithstanding his legal and financial
  motivations.  This court cannot second-guess that credibility
  assessment, and the jury was not required to accept defendant's
  interpretation of the events.  The jury instruction regarding
  entrapment was not plainly erroneous:  the government's burden
  of proof and the element of predisposition were adequately
  described.
            2.   Outrageous conduct.  The reverse sting was not
  per se outrageous, even if it involved a paid informant and
  some level of "furtiveness, duplicity, and manipulation."  See
  United States v. Gifford, 17 F.3d 462, 470-71 (1st Cir. 1994). 
  On the evidence presented, and had the issue been raised, it
  would have been reasonable to conclude that the investigatory
  methods employed by the government were not improper, let alone
  outrageous.
            3.  Jury conduct.  The district court's response to
  the jury's note about a "moral issue" was well within its
  discretion.  The import of the note was clear enough, and the
  district court had no cause to investigate the matter or deal
  with it in any other way.  The note did not signal a deadlock,
  and there were no evident grounds for a mistrial.
            We cannot say that the circumstances in which the
  jury reached unanimity warrant reversal in this case, nor can
  we say that the district court was required sua sponte to
  inquire further into the matter.
            4.   Indictment.  Even were defendant's belated
  challenge to the indictment not deemed waived, see Fed. R.
  Crim. P. 12(b)(2) & (f), in any event, the starting date of the
  conspiracy was not an essential element of the instant offense. 
  See United States v. Nunez, 668 F.2d 10, 11-12 (1st Cir. 1981).
            5.   Jury instructions.  Defendant's new objections
  to the instructions on flight, possession, and reasonable doubt
  do not pass the plain error test.  The flight instruction
  properly allowed the jury to decide whether or not an inference
  of guilt was reasonable under the circumstances, and no more
  was required.  See United States v. Rose, 104 F.3d 1408, 1417
  (1st Cir. 1997).  Actual possession was not an issue in this
  case, and the district court adequately defined constructive
  possession.  The reasonable doubt instruction did not require
  any more specific definition, and the district court's comment
  about the possible sources of reasonable doubt did not dilute
  the government's burden of proof.  Taking the instructions as
  a whole, we perceive no likelihood that the jury misunderstood
  its obligations, notwithstanding that the word "should" may
  have appeared in the burden of proof instructions.
            6.  Drug quantity.  Defendant's sentencing factor
  manipulation claim fails because there was no showing of
  "extraordinary misconduct."  See United State v. Montoya, 62
  F.3d 1, 4 (1st Cir. 1995).  Even assuming that defendant's
  argument about U.S.S.G. � 2D1.1 note 12 were properly presented
  to the district court and preserved for review, we cannot say
  that the district court clearly erred in attributing 5
  kilograms of cocaine to defendant, there being adequate
  evidence of defendant's intention and capability to proceed
  with the deal he negotiated.
            7.   Prior conviction.  On the present record, and
  in the context of defendant's challenge to the information
  filed under 21 U.S.C. � 851, the district court correctly
  followed federal precedent and counted defendant's prior
  conviction.  The plea was not infirm, even assuming that
  defendant was not informed about deportation consequences,
  because  deportation is  a collateral, as opposed to direct,
  consequence of an alien-defendant's conviction and therefore
  legally irrelevant to the plea.  See United States v. Quin, 836
  F.2d 654, 655 (1st Cir. 1988), (citing, e.g., United States v.
  Yearwood, 863 F.2d 6, 7-8 (4th Cir. 1988)).  
            However, in light of the pending proceedings in the
  state courts, we recognize that there exists the possibility
  that the prior conviction could be vacated, in which event
  defendant may at that time bring that fact to the district
  court's attention, and seek appropriate sentencing relief in a
  proceeding under 28 U.S.C. � 2255.  We intend no prediction of
  the outcome of any such future proceeding.
            8.   Motions.  Counsel's motion to withdraw is
  denied.  Defendant's pro se motion to dispense with oral
  argument is moot.  Defendant is reminded that he is still
  represented by counsel, and, although he was granted leave to
  file a pro se supplemental brief, he has not been granted leave
  to file any other pro se filings in this court. 
            Defendant's pro se motion for summary reversal is
  denied as frivolous, to the extent that it is based on the
  government's non-specific response to a portion of defendant's
  pro se brief.  To the extent that the motion is based on
  defendant's sister's affidavit raising a new allegation of jury
  misconduct, the motion is denied without prejudice.  We will
  not consider the allegation raised for the first time on
  appeal, which must be submitted to the district court in the
  first instance.  We intend no comment on its merits, if any.
            Affirmed.  See 1st Cir. Loc. R. 27.1.
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