
USCA1 Opinion

	




          May 3, 1993           [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1867                               UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                                    JOHN LAPINSKI,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            John Lapinski on brief pro se.            _____________            Lincoln  C.  Almond,  United  States  Attorney,  and  Anthony   C.            ___________________                                   ____________        DiGioia, Assistant United States Attorney, on brief for appellee.        _______                                 ____________________                                 ____________________                 Per Curiam.   The  appellant, John Lapinski,  appeals an                 __________            order of the  district court revoking his term  of supervised            release and imposing an  18 month term of incarceration.   We            affirm.                                          I.                 In  1989, Lapinski  pled  guilty, in  the United  States            District  Court for the Southern  District of Florida, to one            count  of knowingly  and  with intent  to defraud  possessing            fifteen  or more unauthorized  access devices [credit cards],            in  violation of 18 U.S.C.   1029(a)(3).  He was sentenced to            a  27  month term  of  imprisonment  and  a  3 year  term  of            supervised  release.   Among  the  conditions  applicable  to            Lapinski s term of supervised  release was the standard that,            while  on supervised  release,  he shall  not commit  another            federal, state, or local crime.                 Upon his  release from  prison, Lapinski moved  to Rhode            Island  and his  supervision  was transferred  to the  United            States Probation  Department there.  In 1991, he was arrested            and charged with  2 counts  of sexual assault  in the  second            degree.   In February 1992,  Lapinski entered a  plea of nolo            contendere  to the  reduced  charges of  2  counts of  simple            assault.  He was sentenced to  a 1 year term of imprisonment,            suspended, and placed on probation for 1 year.                 Shortly thereafter, at the request of Lapinski s federal            probation officer in Rhode Island, jurisdiction over Lapinski            was transferred from the Southern District  of Florida to the            District of Rhode Island where a supervised release violation            hearing  was  held  on  June  29, 1992.    See  18  U.S.C.                                                          ___            3583(e)(3).                                         II.                 Lapinski  was represented  by counsel  at the  violation            hearing,  where the  government presented  2 witnesses  and 5            exhibits.  The  exhibits were  (1) a June  12, 1991  criminal            complaint   report  filed  by   Collene  Garafola   with  the            Middletown, Rhode Island Police  Department, (2) an August 7,            1991 sworn statement of Ms. Garafola, (3) a certified copy of            the judgment  of conviction from  the State of  Rhode Island,            (4)  a copy of the  judgment of conviction  from the Southern            District of Florida, and (5) a copy of the presentence report            in  the Florida case.   The witnesses were  Sergeant Hazel of            the Middletown Police Department and United  States Probation            Officer Kurt O Sullivan.1                 In the criminal complaint report filed on June 12, 1991,            Ms. Garafola recited  that, on that  day, while walking  from            Lucy s  Hearth2 to a 7  Eleven store, she saw  a man in a car            stopped at a light.  The  man then parked the car and watched                                            ____________________            1.  As Lapinski  raises no issues regarding  the testimony of            Probation Officer O Sullivan  or the admission into  evidence            of the Florida judgment or  related presentence report, we do            not discuss them further.            2.  Lucy s  Hearth is a  shelter for women,  located near St.            Lucy s Church, in Middletown.                                         -3-            her.  As she was making a  phone call, the man drove his  car            back to  the store,  got out,  and stood near  the glass  and            watched her.   The  man then  drove away.   She  reported the            license plate number of the car and stated that this same man            had been harassing her and  several other residents of Lucy s            Hearth.   She described what he was wearing and reported that            he was white,  approximately 25-26 years  of age, 5 9"  tall,            thin, with  a  light complexion,  dirty blond  hair and  blue            eyes.   She  reported that  she believed  his first  name was            John.                 She also reported  that this same man had  assaulted her            outside that  same store, four  days earlier, on June  8.  He            ran up behind her, grabbed her by the back of  the shirt, and            turned her around.  He then  grabbed her buttocks and put one            of his hands up her shirt, touching her breast.  She reported            that she kneed him in the groin and ran back to the shelter.                 Sergeant Hazel testified that  this complaint was a true            and accurate copy of the complaint filed by Ms. Garafola.  He            also  testified  that,  in investigating  this  complaint, he            interviewed Ms. Garafola and took a sworn statement from her.            In the  sworn statement of  August 73, Ms.  Garafola reported                                            ____________________            3.  Lapinski insists that this August 7 statement is unsworn.            But, Lapinski did not  object to the statement on  the ground            that  it  was unsworn.   "Absent  plain  error, an  issue not            presented  to  the district  court cannot  be raised  for the            first time on appeal."   United States v. Chaklader,  No. 92-                                     _____________    _________            1818, 1993 WL 57772, at  *2 (1st Cir. Mar. 10, 1993).   Plain                                                           (continued...)                                         -4-            that, in May  1991, this same  man had pulled  up in his  car            while  she was walking in the church parking lot and inquired            about the shelter.   He said that he lived  across the street            and asked whether there were any single women there who would            be willing to move in  with him.  He asked her  name, whether            she had a  boyfriend or children, and  told her that she  was            beautiful.    She  walked  away.    A  week  later,  the  man            reappeared in  his car as she was walking to the shelter.  He            asked  whether she  had spoken  to any  women at  the shelter            about his offer.  Ms. Garafola told him that she had not said            anything and left.                                            ____________________            3.  (...continued)            errors  are those  which are  " particularly egregious "  and            " seriously   affect  the   fairness,  integrity   or  public            reputation  of  judicial  proceedings. "   United  States  v.                                                       ______________            Young, 470 U.S. 1, 15 (1985) (citations omitted).            _____                 The statement, signed by Ms. Garafola, evidences that it            was  "subscribed and  sworn"  and contains  the signature  of            Sergeant Hazel  as notary  public.  Sergeant  Hazel testified            that he  reviewed  the accuracy  of  the statement  with  Ms.            Garafola,  advised her  of the penalties  of perjury  and the            consequences   of  filing   a   false   police  report,   and            administered the oath to  her.  This would seem  to establish            that, in fact, the  statement was a sworn  statement, despite            Lapinski s  present   objection  that  it  lacked  a  written            recitation  thereon that  it  was signed  under penalties  of            perjury.  See Peters v. United States, 408 F.2d 719, 722 (Ct.                      ___ ______    _____________            Cl. 1969) (holding that the absence of the formal requirement            of a notarization in sworn affidavits did  not invalidate the            statements  or  render  them  inadmissible  since  they  were            actually  sworn to  before an  officer who was  authorized to            administer an oath and who testified at subsequent hearing to            the procedures followed).  Thus, there was no error, plain or            otherwise, in the characterization  of the August 7 statement            as sworn and, like both parties and the court below, we shall            accept it as such.                                         -5-                 The sworn statement also  described the assault in June.            The description of the assault in the sworn statement was, in            all respects, consistent  with the description of  the June 8            assault  in  the previously-filed  criminal  complaint.   The            description of the assailant  differed slightly, however.  In            her sworn statement, Ms.  Garafola described her assailant as            white, around  6  tall,  thin, with  medium skin tone,  light            brown hair, and said that he "might have" blue eyes.                 In addition,  Sergeant Hazel testified that he had run a            check of the  license plate number  reported by Ms.  Garafola            and  it was registered to  John Angelico.4   He presented Ms.            Garafola with an array  of 6 photographs.  He  testified that            she selected Lapinski s photograph as that of the man who had            assaulted her and stated to him that she was 100 percent sure            of  that fact.   In  her sworn  statement, Ms.  Garafola also            reported that she was positive that the man in the photograph            she selected was the man who had assaulted her.                 Lapinski s  counsel raised no objection to the admission            of the June 12 criminal complaint or to the certified copy of            the  Rhode Island judgment of conviction.  He objected to the            admission  of the  August 7,  1991 sworn  statement as  being            stale.  That objection  was overruled.  On cross-examination,            Sergeant Hazel conceded that he  had not taken Ms. Garafola s                                            ____________________            4.  It is undisputed that  John Angelico is an alias  of John            Lapinski.                                         -6-            original  statement  of   June  12  and  Lapinski s   counsel            highlighted the differing descriptions of the assailant given            by Ms. Garafola in her two statements.                 Lapinski also testified.  He stated that he had a common            law  wife, with whom  he had been  living for 8  years, and 1            child.  He further stated that he  recalled seeing a woman in            front of  the 7 Eleven store  in June 1991.   She looked like            she was  crying.  He pulled  over in his car to  talk to her.            She  said she had  a problem with her  boyfriend and that she            was staying at a shelter.  He told her  his name and that, if            she ever needed  anything, he  lived across the  street.   He            remained  in his car the  entire time.   The stoplight turned            green;  he drove  away and  never spoke  to  her again.   The            exchange lasted perhaps 1 or 2 minutes.                 His counsel  further inquired, "Were you  trying to pick            her  up?"  Lapinski answered,  "Yeah. ... well  not trying to            pick  her up so much, but more to, you know to make a friend.            I mean, I,  you know, try to be friendly  with as many people            as I can."   Lapinski stated that, although he never spoke to            her  again, she  may have  seen him  because, in  addition to            living across the street  from the 7 Eleven store,  he worked            in  an apartment complex next door to that store and traveled            back and forth many times daily.  He also testified variously            that he was "about 6 2"" and "probably 6 2 " maybe.  Almost 6            feet,  close  to  it."    He  testified  that  he  pled  nolo                                         -7-            contendere to simple assault on counsel s  advice that he had            no other choice, but  that he never had any  physical contact            with Ms. Garafola.                 On cross-examination, Lapinski testified  that, although            he  recalled speaking  to a  woman in  front of the  7 Eleven            store in May, June, or July  1991, he did not recall what she            looked  like or  know whether  the incident  involved Collene            Garafola.  He  did recall  that the road  was extremely  busy            with  traffic and that  one had to  be alert  because of cars            pulling in and  out of  the traffic lanes.   Nonetheless,  he            observed a  woman looking  depressed and leaning  against the            bus stop on the side of the road.                 The following exchange also occurred:            DiGioia5:      Isn t  it  true  that you ve  been  trying  to                           pick up,  if you will, young  ladies who lived                           in that shelter --            Lapinski:      Well --            DiGioia:       the better part of the month of May, June, and                           July?            Lapinski:      Yes, I  talked to a few women on the -- in the                           area,  and one  other  one I  found that  also                           lives in the shelter.            DiGioia:       And isn t  it true that  you were specifically                           looking for  women who  looked like  they came                           from the shelter?            Lapinski:      No, sir.  When I --                                            ____________________            5.  Anthony DiGioia was the government s attorney.                                         -8-            DiGioia:       Isn t it true  that you  would approach  these                           women and ask them if they would come  to live                           with you just for cooking and cleaning?            Lapinski:      No, sir.   I never  asked them to  -- if  they                           wanted to cook and cleaning [sic].            DiGioia:       Now, did you  every [sic]  approach any  young                           lady down there, in  that vicinity and ask her                           to come stay with you, and  make a motion down                           towards, towards your pants, a motion as if to                           indicate masturbating?            Lapinski:      No, sir.            DiGioia:       Never did anything like that?            Lapinski:      No. Why?  That s senseless.            DiGioia:       That s senseless?  Your only approach to these                           young  women was that you were concerned about                           trying  to  help   them  out,  is  that   your                           testimony?            Lapinski:      Not concerned  about trying to help  them out.                           But,  you know,  concerned about  maybe taking                           them  for a,  for a  dinner, or  for a  drink.                           That s it.  I mean  I m not a -- in the  paper                           they  made it look like a maniac I jump out of                           a  car and I beat somebody up for what reason?                           I don t  understand.  What s the  -- you know,                           in front of millions of people -- not millions                           of people, but at  least hundreds of people in                           shopping   plaza,  next   door.      I   don t                           understand.                 Lapinski testified that  he had no  choice but to  plead            nolo contendere because, he  said, his retained counsel would            no  longer represent him without an additional fee.  He never            informed the state  court that he  could not afford  counsel.            He said that he tried to tell the judge  that he wanted to go            to  trial but could not afford counsel, but that his attorney                                         -9-            "kept elbowing  me in the  side saying,  "No.   No."" and  he            never had the chance to tell his side of the story.                 The  district  court found  by  a  preponderance of  the            evidence that  Lapinski  committed  a  second  degree  sexual            assault  on  or about  June 8,  1991,  in violation  of Rhode            Island General Laws    11-37-4 and 5  and in violation of the            conditions  of his supervised release.6   The court found the            "vivid"  account  of  the  incident contained  in  the  sworn            statement  to  be  credible.     Further,  Ms.  Garafola  had            described Lapinski and his automobile and  had picked out his            photograph  from the  array.   The  court found  not credible            Lapinski s  testimony that he stopped at the side of the road                                            ____________________            6.  Lapinski pled  nolo contendere  to the lesser  charges of            simple assault.  However,                      [u]nder  18  U.S.C.       3563(a)(1)  and                      3583(d),   a   mandatory   condition   of                      probation and supervised release  is that                      the defendant not commit another federal,                      state,  or local crime.   A  violation of                      this condition may be charged  whether or                      not the defendant has been the subject of                      a  separate  federal,  state,   or  local                      prosecution for such conduct.   The grade                      of  violation  does not  depend  upon the                      conduct that  is the subject  of criminal                      charges  or  of  which  the  defendant is                      convicted   in  a   criminal  proceeding.                      Rather, the grade of the violation is  to                      be  based  on   the  defendant's   actual                      conduct.            U.S.S.G.  7B1.1, comment. (n.1).                 The preponderance  of  the evidence  is  the  applicable            standard for  the revocation  of supervised release.   United                                                                   ______            States v. Portalla,  985 F.2d  621, 622 (1st  Cir. 1993);  18            ______    ________            U.S.C.   3583(e)(3).                                         -10-            to  comfort  and try  to  make friends  with  depressed young            women.  Nor  did it find credible Lapinski s  suggestion that            his nolo contendere plea was involuntary.                 Pursuant  to  U.S.S.G.  7B1.1(a)(2),p.s.,  second degree            sexual  assault is  a  Grade B  Violation.   With  Lapinski s            Criminal History Category of IV, the guidelines established a            sentencing range of 12 to 18 months.  U.S.S.G.  7B1.4(a),p.s.            Based on the evidence,  Lapinski s prior history of probation            revocation, and its conclusion that Lapinski s  testimony was            perjured,  the  district  court  concluded  that  a   lengthy            sentence  of  incarceration was  necessary  and ordered  that            Lapinski be sentenced to an 18 month term of imprisonment.                                         III.                 On  appeal, Lapinski  claims that  evidence of  his nolo            contendere was  improperly admitted  and that he  should have            been allowed  to  confront and  cross-examine  Ms.  Garafola.            These  arguments  were  not  raised in  the  district  court.            Therefore, as with his  contention that Ms. Garafola s August            7 statement was unsworn,  supra at note 3, we review only for                                      _____            plain error.                                          A.                 We turn to his claim regarding the nolo contendere plea.            Lapinski  argues that it was admitted in violation of Fed. R.                                         -11-            Crim. P.  11(e)(6).7  Rule  11(e)(6) of the Fed.  R. Crim. P.            states, in pertinent part:                      Except as otherwise provided in this paragraph                 [not relevant  here], evidence of the  following is                 not,   in   any  civil   or   criminal  proceeding,                 admissible against the defendant who  made the plea                 or was a participant in the plea discussions:                                        . . .                      (B) a plea of nolo contendere.                 Our  response is multifold.  First, we note that in this            case we are  dealing with  a nolo contendere  plea which  was            entered in state  court.  And, it may be  that, since Rule 11                       _____            did not  apply in the  first instance to  the taking of  this            plea, that  provision  of  Rule  11  purporting  to  bar  its            admission also is inapplicable.  United States v. Guadarrama,                                             _____________    __________            742 F.2d 487, 489 n.1 (9th Cir. 1984).8                                            ____________________            7.  Lapinski also contends that admitting the evidence of his            nolo contendere  plea violated the similar  provision of Fed.            R. Evid. 410 (Inadmissibility of Pleas, Plea Discussions, and            Related  Statements)  and  Fed.  R.  Evid.  803(22)  (hearsay            exception for judgment of previous conviction entered on plea            of  guilty, but  not  upon plea  of  nolo contendere).    The            Federal  Rules  of  Evidence  do not  apply  to  a supervised            release  revocation  hearing,  however.    United  States  v.                                                       ______________            Portalla, 985 F.2d at  622; see Fed. R. Evid.  1101(e) (rules            ________                    ___            inapplicable to  revocation of  probation).   We,  therefore,            need not, and do not, address this contention.            8.  Strictly speaking,  Rule 11 prohibits evidence  of a plea                                                      ___________________            of  nolo  contendere.     What  was  admitted  at  Lapinski s            ____________________            supervised release revocation  hearing (without objection, we            reiterate) was the state court  judgment of conviction.   The                                            ______________________            judgment, however, records that Lapinski was convicted upon a            plea of nolo contendere and the government s attorney, at the            revocation hearing, also initiated the first reference to the            plea  in  his  examination  of Sergeant  Hazel.    Lapinski s            counsel,  thereafter, referred  to it  in his  examination of            Lapinski.  Because  we conclude  that error, if  any, in  the                                                           (continued...)                                         -12-                 In any event, the  revocation of supervised release does            not require  a conviction  of a separate  federal, state,  or            local crime.   Indeed, a violation of  the standard condition            of  supervised release  - that a  defendant shall  not commit            another federal, state, or local crime - may be found whether            or  not  the defendant  has been  the  subject of  a separate            federal,  state,  or  local  prosecution  for  such  conduct.            U.S.S.G.  7B1.1, comment. (n.1).  And, the district court did            not purport  to base the revocation  of Lapinski s supervised            release  on   his  plea  of  nolo   contendere  or  resulting            conviction.  Rather, the  district court expressly found that            Lapinski committed second degree  sexual assault based on Ms.            Garafola s sworn statement and its conclusion that Lapinski s            testimony to  the contrary  was not  credible.   The district            court   has   "broad  legal   power   to   determine  witness            credibility," United States v. Portalla, 985 F.2d at 622, and                          _____________    ________            the  evidence   cited  amply  supports  the   finding,  by  a            preponderance of the evidence, that Lapinski committed second            degree sexual assault.   Any error  in admitting evidence  of                                            ____________________            8.  (...continued)            admission of the  evidence of the  nolo contendere plea,  was            harmless, we assume, without  deciding, that the admission of            the judgment of conviction was, in this  case, the equivalent                ______________________            of  the admission of evidence  of a plea  of nolo contendere.            But cf. Myers v. Secretary of Health & Human Servs., 893 F.2d            _______ _____    __________________________________            840, 843  (6th Cir. 1990) (holding  that Fed. R. Crim.  P. 11            and Fed. R. Evid. 410 do not bar the use of a nolo contendere            conviction  in  an  administrative  proceeding,  despite  the            language in the rules  prohibiting the use of a  nolo plea in            any civil or criminal proceeding).            ___                                         -13-            Lapinski s  plea of  nolo contendere,  whether plain  or not,            was, at most, harmless.9                                          B.                 Lapinski  argues that  he  should have  been allowed  to            confront and  cross-examine Ms. Garafola.   Fed. R.  Crim. P.            32.1(a)(2) (at a revocation hearing, the person on supervised            release  shall  be  given,  inter alia,  the  opportunity  to            question adverse witnesses);  see also  Morrissey v.  Brewer,                                          ________  _________     ______            408  U.S. at   489 (holding that,  at a  minimum, due process            gives a parolee, at a parole  revocation hearing, inter alia,            the  right to  confront and cross-examine  adverse witnesses,            unless the hearing officer  specifically finds good cause for            not allowing  confrontation); Gagnon  v. Scarpelli,  411 U.S.                                          ______     _________            778,   782  (1973)   (applying   the   minimum  due   process            requirements  of Morrissey  to one  facing the  revocation of                             _________            probation);  United States v. Martin,  984 F.2d 308, 310 (9th                         _____________    ______                                            ____________________            9.  Even had the revocation  of supervised release been based            on Lapinski s  state court conviction (and,  further assuming            that the admission of that state court judgment was not plain            error), a challenge to that conviction in this proceeding may            well have  been inappropriate.   "Obviously a  parolee cannot            relitigate issues determined against  him in other forums, as            in the situation  presented when the  revocation is based  on            conviction of another crime."   Morrissey v. Brewer, 408 U.S.                                            _________    ______            471, 490 (1972);  cf. United States v. Paleo,  967 F.2d 7, 13                              ___ _____________    _____            (1st Cir. 1992) (holding that a defendant may challenge, in a            federal sentencing proceeding,  the constitutionality of past            convictions,  offered to  increase  the length  of a  present            sentence).    Even if  appropriate,  the  challenge would  be            unsuccessful  based,  as it  was,  only  on Lapinski s  self-            serving statement,  rejected as not credible  by the district            court, that his nolo contendere plea was involuntary.                                         -14-            Cir. 1993) (stating that  Fed. R. Crim. P.  32.1 incorporates            the Morrissey minimum due process requisites and applies them                _________            to a supervised release revocation hearing).                 Although   Lapinski  objected  to  the  August  7  sworn            statement as  stale,10 he  did not  complain in  the district            court  specifically of a lack of  opportunity to confront and            cross-examine Ms. Garafola.   And, he offered no challenge to            the government s  explanation that  it had not  presented Ms.            Garafola because it  was unable  to locate her.   On  appeal,            Lapinski points  to the Rule  32.1(a)(2) advisory committee s            note, wherein it  states that "the probationer does  not have            to  specifically   request  the  right  to  confront  adverse            witnesses."   Notwithstanding  the  existence  of this  right            independent  of a  request,  we do  not  think that  Lapinski            reasonably can  stand mute below and  then premise reversible            error per se  on this  ground.  We,  therefore, shall  review            this claim for plain error only.                 We find  none.   Morrissey and  Gagnon  (as extended  by                                  _________      ______            caselaw to the revocation  of supervised release) provide one            in Lapinski s position with some right to confront and cross-                                        ____            examine an  adverse witness.  But,  the revocation proceeding                                            ____________________            10.  The  August  7, 1991  statement recited  encounters with            Lapinski in May 1991, the June 8, 1991 assault, and a further            encounter on June  12, 1991.   Counsel s  complaint that  the            August 1991 statement was stale apparently refers not  to the            interval  between May and August of 1991, but to the interval            between August 1991 and the June 1992 revocation hearing.                                         -15-            is not the equivalent  of a criminal prosecution.   Morrissey                                                                _________            v.  Brewer,  408  U.S.  at 489.    The  district  court in  a                ______            supervised release revocation  hearing may consider "evidence            including  letters, affidavits, and other material that would            not  be admissible in an adversary criminal trial."  Id.; see                                                                 ___  ___            also United  States v. Portalla,  985 F.2d  at 622  (reciting            ____ ______________    ________            that  the Federal  Rules  of  Evidence  do  not  apply  to  a            supervised release revocation hearing); Fed. R. Evid. 1101(e)            (rules  inapplicable  to  revocation  of  probation).    And,            "[w]hile  in   some  cases   there  is  simply   no  adequate            alternative  to live testimony," Morrissey does not "prohibit                                             _________            use  where appropriate  of the  conventional  substitutes for            live  testimony,  including   affidavits,  depositions,   and            documentary evidence."  Gagnon v. Scarpelli, 411 U.S. at 782-                                    ______    _________            83 n.5.11                 Courts,  since the Morrissey  and Gagnon decisions, have                                    _________      ______            balanced the  right  of the  parolee or  probationer [and  we            would read  here also  releasee] to confrontation  and cross-            examination against the government s  reason for denying  it.                                            ____________________            11.  Lapinski  claims to be  prejudiced from the  lack of Ms.            Garafola s live testimony because such testimony, he says, is            more reliable,  i.e., the  willingness to testify  falsely is            impaired when the witness  is under oath and in  the presence            of  the  accused.   The  first  part  of  this contention  is            premised on  his companion  contention that Ms.  Garafola had            made  no  statement  under  oath.    We  have  rejected  that                  __            contention,  supra  at  note  3.   And,  even  accepting  the                         _____            preference  for  face-to-face  confrontation,   as  discussed            infra, the  government s explanation  for her absence  at the            _____            revocation hearing is credible and unchallenged.                                         -16-            See, e.g., United States  v. Simmons, 812 F.2d 561,  564 (9th            _________  _____________     _______            Cir. 1987); United  States v.  Bell, 785 F.2d  640, 642  (8th                        ______________     ____            Cir.  1986); United States v.  Penn, 721 F.2d  762, 764 (11th                         _____________     ____            Cir.  1983).  The government  stated that it  did not present            Ms. Garafola at the revocation  hearing because it was unable            to locate her.  Given her  residence at a shelter at the time            of  the reported  incident,  this  explanation is  inherently            credible.  Indeed, even  on appeal, Lapinski suggests nothing            which would cast doubt on that statement.                 We focus, therefore, on  the reliability of the evidence            which  the government offered in place of Ms. Garafola s live            testimony.    United  States  v. Simmons,  812  F.2d  at  564                          ______________     _______            (reliability  of  evidence  may   provide  a  basis  for  its            admissibility);  United  States  v.  Bell, 785  F.2d  at  643                             ______________      ____            (same);  United States v. Penn,  721 F.2d at  766 (same); see                     _____________    ____                            ___            also  United States  v. Portalla,  985 F.2d  at  622 (stating            ____  _____________     ________            that, even though the evidence  at a revocation hearing  need            not  satisfy  the Federal  Rules  of  Evidence, the  evidence            nonetheless must be reliable).                 We conclude that  her sworn statement of August  7 bears            sufficient  indicia of  reliability such  that its  admission            into evidence was  not plain  error.12  Ad  initio, we  point                                            ____________________            12.  The  bulk  of  Lapinski s  argument  on  appeal  appears            directed at the August 7 sworn statement.  To the extent that            his brief reference to the unreliability of police reports is            intended  as  an  attack on  the  admission  of  the June  12            criminal complaint,  it is  unavailing.   The August 7  sworn                                         -17-            out  that   this  sworn  statement,  no   different  from  an            affidavit,   is  a   "conventional  substitute[]"   for  live            testimony, as recognized by the  Court.  Gagnon v. Scarpelli,                                                     ______    _________            411 U.S. at 782-83 n.5.  Even apart from this,  the statement            was quite detailed:   it related a series of  encounters with            the same man  over a period of  months; it provided the  name            "John"  that  the man  had  disclosed  during  one  of  these            encounters and  the license  plate number of  John Lapinski s            car;  it  recorded  Ms.  Garafola s  identification  of  John            Lapinski  from   a  photo  spread;  and   it  recounted  with            particularity  the time, place, and description of the June 8            attack.   See Egerstaffer v. Israel, 726 F.2d 1231, 1235 (7th                      ___ ___________    ______            Cir. 1984) (finding that the detail of a hearsay statement is            one factor in determining reliability).                 And,    significantly,    Lapinski s   own    admissions            corroborated  certain of the  circumstances recounted  in the            statement, further supporting its reliability.  United States                                                            _____________            v. Bell,  785 F.2d at  644 (concluding that  admissions which               ____            sufficiently  corroborate police report support that report s            reliability); United States v.  McCallum, 677 F.2d 1024, 1026                          _____________     ________                                            ____________________            statement, apart from a  slight difference in the description            of  the   attacker,  was   entirely   consistent  with,   and            essentially replicated, the June  12 criminal complaint.  The            differences  in description  were pointed  out  by Lapinski s            counsel at the hearing.   Having found sufficient  indicia of            reliability to support the  admission of the sworn statement,            there  was no plain  error in the  unobjected-to admission of            the essentially duplicative June 12 criminal complaint.                                         -18-            (4th Cir.) (same, report of treatment program coordinator and            counselor),  cert. denied, 459 U.S. 1010 (1982).  To be sure,                         ____________            Lapinski denied the June 8 attack.   But, he conceded that he            had spent the  better part of  the months of  May, June,  and            July  1991 approaching women in that same localized area.  He            conceded that at least  one of the women that he  had "found"            lived at  the  shelter.   And,  although  he  denied  knowing            whether  the incident  involved  Ms. Garafola,  he, in  fact,            admitted that, in one instance, he had pulled over in his car            to talk  to one  woman  he had  spotted on  the  side of  the            street.    Given the  district  court s  broad discretion  to            decide the  reliability of hearsay information, United States                                                            _____________            v.  Portalla, 985  F.2d at 623,  we find no  plain error and,                ________            therefore, no  violation of Lapinski s right  to confront and            cross-examine  witnesses,  in  the  admission  of  the  sworn            statement into evidence at the revocation hearing.13                 The order of the district court is affirmed.                                                    _________                                            ____________________            13.  Of  course, the  reliability of  the sworn  statement is            further buttressed by Lapinski s conviction.  Even were we to            credit  Lapinski s  argument  against the  admission  of this            conviction,  nonetheless, as the  text indicates,  there were            other  sufficient  indicia  of  reliability  to  support  the            admission  of  the  sworn  statement  into  evidence  at  the            revocation hearing.                                         -19-
