               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit


No. 16-1884

                    UNITED STATES OF AMERICA,

                               Appellee,

                                    v.

                             JORGE DEIDA,

                       Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW HAMPSHIRE

      [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]


                                 Before

                  Thompson, Stahl, and Kayatta,
                         Circuit Judges.


     Bjorn Lange, Assistant Federal Public Defender, for
appellant.
     Seth R. Aframe, Assistant United States Attorney, with whom
Emily Gray Rice, United States Attorney, was on brief, for
appellee.


                            March 15, 2017
             STAHL, Circuit Judge.        Jorge Deida claims that the

district court erroneously permitted the government to present

hearsay and prior bad act testimony at his supervised release

revocation hearing. In light of this testimony, the district court

determined that Deida had violated the conditions of his supervised

release, revoked that release, and sentenced Deida to fourteen

months' imprisonment followed by twenty-two months of supervised

release.     For the following reasons, we affirm.

                                    I.

             On June 12, 2013, Deida began a five-year term of

supervised    release   after   serving   a   126-month   prison   sentence

relating to a series of controlled substance offenses.1            On March

4, 2016 and April 20, 2016, Deida's probation officer filed

successive petitions in the United States District Court for the

District of New Hampshire alleging that Deida had assaulted his

girlfriend, Jennifer Vanslette, on two separate occasions.              The

petition specifically alleged that Deida had repeatedly struck

Vanslette in the face during an argument on January 12, 2016, and

then forcefully wrapped his hands around her neck in the midst of

another altercation on March 3, 2016.          Deida, however, was never

charged for the alleged January 12th incident.             The government




     1 Deida served only ninety-eight of the 126 months before
being released.
                                  - 2 -
dismissed the March 3rd allegation prior to Deida's revocation

hearing after he was found not guilty of that assault in a parallel

state court proceeding.

          Two witnesses testified at Deida's hearing, Vanslette

and her family counselor, Rose Brockstedt.2        Vanslette first

testified that she and Deida lived together in his apartment at

the time of the January 12th assault.    As they were getting ready

for bed that night, Vanslette asked Deida if she could use their

van the following day to attend a family counseling session with

her daughter, who at the time lived at an Easter Seals residential

treatment facility in Manchester, New Hampshire.   Deida, she said,

took issue with her request, "got in [her] face," and began to

repeatedly punch her.     Vanslette also said that she did not call

the police after the incident because Deida had threatened to kill

her if she did. The next day, Vanslette spoke to Brockstedt during

a scheduling call, and told her about the encounter.

          Also, in her testimony about the March 3rd incident,

Vanslette, over Deida's objection, claimed that he had "put his

arms around [her] throat" and threatened to "make [her] daughter

motherless."3



     2 Because Deida chose not to take the stand at his revocation
hearing, the evidence presented to the district court consisted
solely of Vanslette's and Brockstedt's testimony.
     3 On cross-examination, Deida's counsel asked Vanslette a
series of questions suggesting that, in March 2016, she was angry
                              - 3 -
          Brockstedt took the stand next.       She verified that

Vanslette called her the day after the alleged January 12th assault

to cancel the family counseling session because Deida had "beaten

[her] up."   Vanslette cried over the phone, and told Brockstedt

that "her eye was all bruised and her lip was swollen." Brockstedt

also mentioned that Vanslette's face remained bruised when she

next saw Vanslette nearly two weeks later.

          Brockstedt described what she knew about the March 3rd

incident as well.   She testified that on that date, Vanslette sent

her a text message that read "help."     After receiving the text

message, Brockstedt called Vanslette, who informed Brockstedt that

Deida had "beat[] her up" and that "she was trying to barricade

herself in her room."   Brockstedt also claimed that she could hear

Deida in the background of the call saying that he was going to

leave Vanslette's daughter without a mom.4

          Based on the evidence presented, the district court

concluded that the government had proven by a preponderance of the

evidence that Deida had committed the misdemeanor offense of simple

domestic assault during the January 12th altercation.     See N.H.



with Deida because she believed he was cheating on her with another
woman.
     4 On cross-examination, Brockstedt acknowledged that when she
had seen Vanslette and Deida together in the time between the
alleged January and March incidents, their behavior was
"[c]ordial."
                               - 4 -
Rev. Stat. Ann. § 631:2-b(I)(a).                 The court then revoked Deida's

supervised     release        and     sentenced     him     to    fourteen     months'

imprisonment, to be followed by a term of twenty-two months of

supervised release.

                                           II.

            On appeal, Deida makes two challenges to the district

court's revocation of his supervised release.                    First, Deida argues

that the district court should have excluded Vanslette's and

Brockstedt's    testimony           detailing     their   telephone    conversation

about the alleged January 12th assault.                   Second, he argues that

the district court erred in admitting testimony from Vanslette and

Brockstedt that, on March 3, 2016, Deida assaulted Vanslette again,

choking her and threatening her life.

            This court reviews a district court's decision to admit

or   exclude   evidence        at     a   revocation      hearing    for     abuse   of

discretion.     See United States v. Rondeau, 430 F.3d 44, 48 (1st

Cir. 2005); United States v. Taveras, 380 F.3d 532, 536 (1st Cir.

2004).     Given the nature of the proceedings below, we conclude

that the district court did not abuse its discretion by admitting

both sets of testimony.              See Morrissey v. Brewer, 408 U.S. 471,

489 (1972) (stating that parole revocation proceedings "should be

flexible     enough      to     consider         evidence    including        letters,

affidavits, and other material that would not be admissible in an

adversary criminal trial").
                                          - 5 -
            A. The Alleged Telephone Conversation between Vanslette
               and Brockstedt

            Deida first argues that the district court should have

excluded    all   testimony   regarding      Vanslette    and    Brockstedt's

January 13th telephone conversation because it was insufficiently

reliable.   Though the evidence presented in revocation proceedings

need not be admissible under the Federal Rules of Evidence,

U.S.S.G. § 6A1.3(a); Fed. R. Evid. 1101(d)(3), "evidence that does

not satisfy those Rules must nonetheless be reliable," United

States v. Portalla, 985 F.2d 621, 622 (1st Cir. 1993). Here, Deida

claims that Vanslette's and Brockstedt's testimony is unreliable

because it consisted of unsworn verbal allegations made the day

after the alleged assault which, in most judicial proceedings,

would not be admissible under any hearsay exception.                     While

acknowledging      that   hearsay    evidence    is    often    permitted    in

revocation proceedings, United States v. Marino, 833 F.3d 1, 5

(1st Cir. 2016), Deida claims that it remains relevant whether or

not a statement falls outside a "firmly rooted hearsay exception,"

see Idaho v. Wright, 497 U.S. 805, 815 (1990).

            To be sure, a statement's status as hearsay or non-

hearsay is an indicator of that statement's reliability.                    See

Taveras, 380 F.3d at 537. Deida overlooks, however, the many other

indicia of reliability present here.             Even if Vanslette's and

Brockstedt's      testimony   does    not    qualify    under    any   hearsay

                                     - 6 -
exception, the declarant, Vanslette, took the stand, adopted the

statement as her own, and made herself available for cross-

examination.       Deida    stresses     that     Vanslette    was     "angry    and

suspicious" that he was seeing another woman and, therefore, that

she   had   a    personal      motive   to      fabricate   her    statements     to

Brockstedt, a theory that Deida pursued on cross-examination.                    See

Davis v. Alaska, 415 U.S. 308, 316 (1974) ("Cross-examination is

the principal means by which the believability of a witness and

the truth of his testimony are tested."). Moreover, the government

appropriately      notes      that   Brockstedt     testified      that    she   saw

Vanslette about two weeks after the alleged January 12th assault,

and stated that Vanslette had injuries to her face consistent with

Vanslette and Brockstedt's January 13th conversation.                   See United

States v. Martin, 382 F.3d 840, 846 (8th Cir. 2004) (noting that

the   government       demonstrated       the    reliability      of   declarant's

statements regarding a sexual assault, in part because other

witnesses       said   they    observed      injuries   consistent        with   the

declarant's description of the sexual assault).                   Therefore, the

district court did not abuse its discretion by admitting testimony

about Vanslette's telephone conversation with Brockstedt in the

aftermath of the alleged January 12th assault.

            B. The Alleged March 3rd Assault

            Deida's second argument is that Vanslette and Brockstedt

should not have been permitted to testify as to the alleged assault
                                        - 7 -
which occurred at Vanslette and Deida's home on March 3, 2016.

While this incident was initially presented by the government in

its   April    20,      2016   revocation      petition     as   Violation    2,   the

government dropped this allegation from the petition after Deida

had been found not guilty of that assault in parallel state court

proceedings.       Because he had been acquitted of that charge, and

because the government did not rely upon it in arguing that he had

violated the terms of his release, Deida argues that the district

court's decision to admit Vanslette's and Brockstedt's testimony

regarding the alleged March 3rd incident amounted to "prior bad

acts" evidence in violation of Federal Rule of Evidence 404(b).

              We   disagree,       for   two   reasons.      First,   because      the

district court cited only the January simple assault as the basis

for finding Deida in violation of the terms of his release, and

because there was ample evidence supporting Vanslette's version of

those events, we need not decide whether the district court abused

its discretion in admitting testimony pertaining to the March 3rd

incident because any error would be harmless.

              Second, and for the sake of completeness, we note that

in addition to the previously identified problem of the Federal

Rules of Evidence not applying, many courts have permitted the

introduction       of    similar    evidence     in   the   context   of     domestic

violence to show intent, motive, and the general nature of the

relationship. See, e.g., State v. Brown, 900 A.2d 1155, 1161 (R.I.
                                         - 8 -
2006) (stating that admission of uncharged instances of assault

was permissible to show "an escalating pattern of domestic violence

tended to establish defendant's intent"); State v. Williams, 9

A.3d 315, 320 (Vt. 2010) (holding prior instances of domestic

assault admissible "to show the nature of the parties' relationship

and explain what might otherwise appear to be incongruous behavior

to a jury, such as remaining with an abusive partner and delaying

a report of abuse"); see also United States v. Faulls, 821 F.3d

502, 508-09 (4th Cir. 2016) (reasoning that admission of prior

acts of domestic violence was appropriate because evidence was

relevant to motive and nature of relationship); Albrecht v. Horn,

485 F.3d 103, 127-28 (3d Cir. 2007) (stating that evidence of past

instances of domestic abuse was admitted for the legitimate purpose

of showing the defendant's motive).   In other words, because the

evidence in this case was not admitted "to prove the character of

a person in order to show action in conformity therewith," Fed. R.

Evid. 404(b), but was admitted to prove motive, intent, and the

nature of the relationship between Deida and Vanslette, there would

have been no violation of the Federal Rules even if they did apply.

                               III.

            For these reasons, the district court's judgment is

AFFIRMED.




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