               Not for Publication in West's Federal Reporter
              Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                       For the First Circuit

No. 03-2559

                          NICHOLAS DELAROSA,

                       Petitioner, Appellant,

                                     v.

      LYNN BISSONETTE; THOMAS F. REILLY, ATTORNEY GENERAL,

                       Respondents, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Nathaniel M. Gorton, U.S. District Judge]


                                  Before

                         Boudin, Chief Judge,

                Selya and Lynch, Circuit Judges.


     Leslie W. O'Brien on brief for petitioner.
     Thomas F. Reilly, Attorney General, and Annette C. Benedetto,
Assistant Attorney General, Criminal Bureau, on brief for
respondents.


                              July 14, 2004
            Per Curiam.     In 1997, Nicholas Delarosa was convicted in

Massachusetts state court of, inter alia, trafficking in over 200

grams of cocaine.          His possession of some drugs was clearly

established, but of importance was whether he had also controlled

drugs found inside an apartment after his arrest.                            At trial,

Officer   Joselito    Lozada     of    the    Springfield        Police    Department

testified   about    the   events      that    had    led   up    to   the    stakeout

resulting in Delarosa's arrest.                Lozada explained that he had

received a call from an informant:              "I received information that

there was going to be a delivery made at approximately 9 p.m. . .

.   And we knew what apartment [Delarosa] was in.                         He had just

recently moved from one apartment to another."

            Delarosa objected to the testimony on the ground that it

was hearsay.    The trial court admitted the testimony--not for the

truth of the matter asserted, but to explain the subsequent actions

of the police officers in their conduct of the stakeout.                     The court

gave an accompanying limiting instruction to the jury, explaining

that the testimony was "being offered to explain why people took

certain actions.     It's not to substitute for your judgment as to

what actually happened."          This instruction was not a model of

clarity, but the defendant made no request for a more lucid one.

            In this federal habeas action, Delarosa claims that the

introduction of this testimony violated the Confrontation Clause,

U.S.   Const.   amend.     VI,   and    that    the    trial     court's      limiting


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instruction was insufficient to remedy this error.     The district

court denied relief and this appeal, based on a certificate of

appealability, followed.    It is unnecessary to concern ourselves

with the proper degree of deference to be given to the state court

rulings and to the magistrate and district court judges in this

case, because by any test the writ was properly denied.

          "The [Confrontation] Clause . . . does not bar the use of

testimonial statements for purposes other than establishing the

truth of the matter asserted."   Crawford v. Washington, 124 S. Ct.

1354, 1369 n.9 (2004).   Here, the statement was offered to show why

the officer acted as he did and not for the truth of the statement.

Even if the trial court's instruction was insufficient to make this

limitation clear to the jury and even if the objection to its

wording was not forfeited for lack of objection, the state's

powerful evidence linking the petitioner to the apartment made any

possible error harmless beyond a reasonable doubt.

          Specifically, the state provided ample evidence that

Delarosa had control over the drugs in question: he had keys to the

apartment; he had paid the rent of the apartment for a number of

months; he had been seen going in and out of the building a number

of times over the course of the day, as well as in previous months;

and the cocaine found in his car was of similar quality--and

packaged in the same way--as that found in the apartment.   The few




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contested sentences of Officer Lozada's testimony added little, if

anything, to this other information.

          Affirmed.




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