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  &amp;  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:

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                             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.
                   

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                             9
