
USCA1 Opinion

	




          February 8, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1512                                    UNITED STATES,                                      Appellee,                                          v.                              VINCENT M. PORTALLA, a/k/a                                   VINCENT MARINO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Selya, Circuit Judge.                                         _____________                                 ____________________            Marielise  Kelly with  whom Edward R. Gargiulo,  by Appointment of            ________________            __________________        the  Court, and  Gargiulo,  Rudnick  &  Gargiulo  were  on  brief  for                         _______________________________        appellant.            Carole  S. Schwartz,  Special  Assistant United  States  Attorney,            ___________________        with whom A. John Pappalardo, United States Attorney, was on brief for                  __________________        appellee.                                 ____________________                                   February 8, 1993                                 ____________________                                          1                       BREYER,  Chief Judge.   Vincent M.  Portalla, also                                ___________             known  as Vincent  Marino, appeals  from  a decision  of the             federal  district court  revoking  his  term of  "supervised             release," (related to a  previous conviction for illegal gun             possession)  and ordering  him to  return to  prison for  an             additional  two years.   See  18 U.S.C.    3583;  U.S.S.G.                                        ___             7B1.3-1.4,  p.s.    The  court  revoked  Marino's supervised             release  because  it  found  that Marino  had  violated  two             important supervised release "conditions": (1) the condition             that he not  commit further  crimes; and  (2) the  condition             that he not  associate with other convicted felons.   Marino             claims  that  the  district  court's factual  findings  lack             adequate support in the record.                         The  parties   agree,  as  they   must,  that   in             revocation proceedings  (1) the court  must find facts  by a             "preponderance of the evidence," 18 U.S.C.   3583(e)(3); (2)             the evidence need not satisfy the tests of admissibility set             forth  in the Federal Rules of Evidence, which do not apply,             see U.S.S.G.    6A1.3; Fed.  R. Evid. 1101  (d)(3); but  (3)             ___             evidence that does not  satisfy those Rules must nonetheless             be reliable.  See  U.S.S.G.   6A1.3; United States  v. Geer,                           ___                    _____________     ____             923 F.2d  892, 897 (1st Cir. 1991).  Moreover, on appeal, we             consider the  evidence in  the light  most favorable  to the             government, see United States v. Manning,  955 F.2d 770, 773                         ___ _____________    _______             (1st Cir. 1992), and we recognize the district court's broad             legal  power to  determine witness  credibility, see  United                                                              ___  ______             States v.  Resurreccion, 978 F.2d 759, 761  (1st Cir. 1992).             ______     ____________             Applying these standards to the  record before us, we cannot             accept appellant's arguments.                       First, the  district court found  that, on January             30, 1992,  Marino, with two other  men, unlawfully conspired             to  sell  cocaine  to  undercover  Boston  police  officers.             Marino, in effect, concedes for purposes of this appeal that             on January 30, 1992, Boston  Police Detective Charles Wilson             called a  phone number (257-6673)  and said "Batman,  I need             one."  Marino also effectively concedes that, as a result of                                                           ______________             this  call, two men, Michael Oboardi (whom Marino knew to be             __________             a  felon) and Dennis Othmer,  appeared at a  parking lot and             gave waiting Boston police  officers cocaine in exchange for             cash.  Marino  denies, however,  that he was  "Batman."   He             says that the evidence  is not sufficient to show  that when             Wilson  called 257-6673, it was he, Marino, at the other end                                             __             of the line.                       The evidence on which the court relied in reaching             the determination that Marino  was the person called amounts             to the following:                                         -3-                                          3                       (1)  Detective Wilson testified that he recognized                       Marino's voice.   Wilson had not  spoken to Marino                       for two years, but he previously had spoken to him                       frequently (thirty  to  forty times  over  six  to                       seven years).                       (2) About  ten days later Wilson  again called the                       same number.  He addressed the person who answered                       as "Gigi."   Wilson  testified that the  person on                       the  other  end of  the  line  continued a  normal                       conversation,  apparently   accepting  the  "Gigi"                       designation.  "Gigi" is Marino's nickname.  Wilson                       added that he again recognized Marino's voice.                       (3)  Marino's "sister-in-law" (i.e.  the sister of                       the  women  with whom  Marino  lives,  who is  the                       mother of  his child)  rented a Motorola  cellular                       telephone with  the  critical phone  number  (257-                       6673).                       (4)  When  police  officers  arrested  Marino they                       found  in his  possession the same  model Motorola                       cellular phone that  Marino's "sister-in-law"  had                       rented  (though its  serial number  had apparently                       been removed).                        Marino argues  that key portions  of the evidence,             namely  the phone  conversations, involve hearsay;  that (in             light of a  history of police  harassment) we must  consider             the "hearsay" unreliable; and that, without the hearsay, the             evidence is inadequate.   Marino is wrong about calling  the             evidence "hearsay,"  for the statements spoken  at the other             end of the  phone were not admitted for their  truth, but to             prove  that Marino  was  the speaker.    See Fed.  R.  Evid.                                                      ___             801(c).  We  cannot say the  district court committed  legal             error in crediting Detective Wilson's  testimony identifying                                         -4-                                          4             Marino's voice.  See United States  v. Geer, 923 F.2d at 897                              ___ _____________     ____             ("[T]he sentencing judge has  broad discretion to decide for             himself not only the relevance,  but also the reliability of             the  sentencing  information."  (citation  omitted)).    The             evidence, we  agree, might  well have  been stronger.   But,             given   Wilson's  long   acquaintance  with   Marino,  voice             recognition was  not impossible.   That recognition together             with (1)  the  nickname,  (2)  the  "sister-in-law's"  phone             rental, and  (3) Marino's possession  of a similar  phone in             our view is  sufficient to  meet the  "preponderance of  the             evidence" standard.  Cf., United States v. Angiulo, 847 F.2d                                  ___  _____________    _______             956,  967  (1st  Cir.)  (holding that  voice  identification             together  with  circumstantial evidence  was  sufficient for             jury   to   conclude   that   defendant    participated   in             conversation), cert.  denied, 488 U.S.  928 (1988).   As  we                            _____________             have said, Marino does not deny that the person at the other             end  of the line  ("Batman") facilitated the  drug sale, nor             does  he deny  that one  of the  persons with  whom "Batman"             "associated" in committing his crime (Michael Oboardi) was a             felon.   The  record  thus contains  sufficient evidence  to             support  the  district  court's  finding  that  Marino   had             participated in  the drug  conspiracy and associated  with a             known felon.                                         -5-                                          5                       Second, the district  court found that  Marino had             committed another  crime on February 5,  1992, by assaulting             Dennis Caldarelli with a gun.  The evidence before the court             consisted primarily of the following:                       (1) State Trooper  Thomas Flaherty testified  that                       at about 3:30 a.m. on that day, Caldarelli arrived                       at  Flaherty's cruiser,  parked at  a construction                       site at the Callahan Tunnel.  Caldarelli was upset                       and  had  a  bruise  on  the  side  of  his  face.                       According  to Flaherty,  Caldarelli told  him that                       Marino  (in a  car  with another  man) had  chased                       Caldarelli's car  and forced it off  the road (the                       curb blowing  out two  of its tires).   Caldarelli                       also stated that Marino had asked  him to get into                       Marino's vehicle;  that, once inside  the vehicle,                       Marino had accused him of providing information to                       the police regarding  the shooting of  Salemme and                       had struck  him several times  on the side  of the                       head with a pistol; and that, while Caldarelli was                       running  away, Marino had  fired several  shots at                       him.                       (2) The record of Marino's original conviction for                       gun  possession in  1989 (upon which  the district                       court  relied)  showed  that  Marino  had  been  a                       suspect in the shooting of Salemme.                       (3) State Trooper Stephen McDonald  testified that                       Caldarelli  had actually  made  two visits  to the                                                       ___                       Callahan tunnel  construction site on  the morning                       in question (the  first after he had  been run off                       the road and the second  after the pistol-whipping                       incident).                              First,  at  about 2:15  a.m.,  Caldarelli had                       driven  up to  McDonald's  cruiser with  two  flat                       tires, which  Caldarelli said  were caused  by his                       having  driven  over  a  traffic  island.    After                       speaking  to McDonald,  Caldarelli  drove the  car                       into  the North End to park it, until he could fix                       the tires.                                           -6-                                          6                            Second,  Caldarelli returned to the tunnel on                       foot  and spoke  with Trooper  Flaherty. (McDonald                       testified that he saw this occur about five to ten                       minutes after Caldarelli drove into the North End,                       though  Flaherty  testified  that it  happened  at                       about 3:30  a.m.)  According  to Trooper McDonald,                       on Caldarelli's second  visit to the  construction                       site, in addition to  telling his story to Trooper                       Flaherty, Caldarelli explained to Trooper McDonald                       that  his  initial  tire  blow  out  had  occurred                       because he  had been trying to  escape Marino, who                       had  been  shooting  at  his car.    When  Trooper                       McDonald asked Caldarelli why  he had not told him                       about the  shooting when they first  spoke (before                       the alleged pistol  whipping incident)  Caldarelli                       replied that he  had been too  scared to tell  the                       truth.                       (4) Trooper McDonald placed a call on his radio to                       the Boston Police.  Boston Police Officers  Donald                       Lee and  Christopher Boyle responded to  the call.                       Lee testified that  when they arrived,  Caldarelli                       described  to  them both  Marino's having  shot at                       Caldarelli's  car  (forcing  him  over  a  traffic                       island) and Marino's  later having  pistol-whipped                       him, accused him of being "with Salemme," and shot                       at him  again as  he was  fleeing.   Officer Boyle                       offered  substantially  similar  testimony.   They                       both  noticed   a  red  bruise  on   the  side  of                       Caldarelli's head.                       Marino  points out that  at the revocation hearing             Caldarelli  essentially denied  these  events.    Caldarelli             conceded that the  side of  his head was  bruised, but  said             that  an unknown  person had  "sucker-punched" him.   Marino             adds that the hearsay evidence to the contrary (Caldarelli's             statements to the State Troopers and Boston Police Officers)             was  not  sufficiently  reliable  to   warrant  the  court's             findings.                                         -7-                                          7                       We  agree  with  Marino  that  the  statements  of             Caldarelli  to State  Troopers  Flaherty  and  McDonald  and             Boston  Police Officers  Lee and  Boyle are  hearsay, though             they might well be  admissible in ordinary court proceedings             as  "excited  utterances."     See  Fed.  R.  Evid.  803(2).                                            ___             Regardless,  there are  considerable indicia  of reliability             supporting the  officers' statements, such  as their detail,             the undenied bruises, and  the flat tires.  Also,  there are             plausible reasons  for Caldarelli's  later change of  heart,             namely the  fear that  Marino might retaliate  if Caldarelli             testified  against him (just  as Marino was  alleged to have             done regarding the  Salemme shooting).    Marino, in effect,             says  that the  officers made up  this story  as part  of an             effort to harass him.  But, the record does not warrant such             a conclusion  -- indeed  it suggests that  Troopers Flaherty             and McDonald knew  neither Marino nor Officers Boyle and Lee             -- and there  is nothing  here that would  warrant a  highly             unusual  appellate court  disregard  of  a district  court's             credibility determination.                       Finally, Marino  argues  that the  district  court             should not  have admitted  the record  related to  his prior             conviction.  He says that  to do so is to admit  a "past bad             act"  and, therefore,  to violate  normal  evidentiary rules                                         -8-                                          8             that  keep such  matters out  of criminal  trials.   Fed. R.             Evid.  404(b).  The  Federal Rules of  Evidence, however, do             not apply in this case.  See U.S.S.G.   6A1.3; Fed. R. Evid.                                      ___             1101(d)(3).   And, in any event, the  principles they embody             make such evidence  inadmissible only when its  object is to             show a propensity to commit crimes or, essentially,  to help             a fact  finder  reason "he  did it  before, so  he'll do  it             again."    See  Fed.  R. Evid.  404(b)  ("Evidence  of other                        ___             crimes,  wrongs, or  acts  is not  admissible  to prove  the             character  of  a  person  in  order  to  suggest  action  in             conformity  therewith.").    Such  evidence  is  admissible,             however, for "other purposes,"  such as to show, as  here, a             defendant's  "motive"  for  a   crime,  id.;  or  why  other                                                     ___             witnesses (here  the victim)  might be  lying at  trial, cf.                                                                      ___             United States v. Dennis,  625 F.2d 782, 800 (8th  Cir. 1980)             _____________    ______             ("Prior acts evidence .  . . is admissible to  show victim's             fear  . .  . .").   We  find nothing  improper in  using the             earlier evidentiary record as it was used in this case.                       The judgment of the district court is                        Affirmed.                       _________                                         -9-                                          9
