
USCA1 Opinion

	




        May 30, 1996            [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2252                                    UNITED STATES,                                      Appellee,                                          v.                                   ADEDAPO OMISORE,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                  [Hon. Joseph L. Tauro, Chief U.S. District Judge]                                         _________________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Boudin and Lynch, Circuit Judges.                                            ______________                                 ____________________            Norman S. Zalkind and Zalkind, Rodriguez,  Lunt & Duncan on  brief            _________________     __________________________________        for appellant.                                 ____________________                                 ____________________                      Per  Curiam.   Defendant-appellant  Adedapo Omisore                      ___________            appeals  from  the  district  court  judgment   revoking  his            supervised release.  We affirm.                      I.  Due Process                          ___________                      Omisore argues that the district court violated due            process by  failing to  make written findings  explaining its            revocation  decision and  by  denying his  motion to  inspect            certain probation records.  Neither argument is availing.                         A.  Written Findings                          ________________                      Omisore  contends that the district court's failure            to express in writing "the evidence relied on and reasons for            revoking   parole"   violated   the   minimum   due   process            requirements established by Morrisey v. Brewer, 408 U.S. 471,                                        ________    ______            489 (1972).  Because Omisore did not seek a written statement            from  the district court, we consider  his argument under the            "plain error" standard.  See United States v. Whalen, No. 95-                                     ___ _____________    ______            1816, slip op. at 4 (1st Cir. April 25, 1996).                        "Virtually every court to have considered the issue            has held that 'oral findings, if recorded or transcribed, can            satisfy  the requirements  of Morrissey  when those  findings                                          _________            create a  record sufficiently complete to  advise the parties            and  the reviewing court of the reasons for the revocation of            supervised release and the evidence the decision maker relied            upon.'" Whalen,  slip op. at 4  - 5 (quoting  United States v                    ______                                _____________            Copeland,  20  F.3d  412, 414  (11th  Cir.  1994).   For  the            ________                                         -2-            following   reasons,   we  conclude   that   the   record  is            sufficiently complete to advise the parties and this court of            the reasons for  the revocation and the  evidence relied upon            by the district court.                      It is  clear from the transcript  of the revocation            hearing  that  the  court  viewed the  dispositive  issue  as            whether or not Omisore's conduct on the evening of August 14,            1995, violated  the  terms of  his supervised  release.   The            government  presented  evidence  only concerning  the  August            arrest and excluded  evidence on  the charge  of receiving  a            stolen  vehicle.   When  the defense  attorney remarked  that            there was no evidence that Omisore had passed a stolen credit            card,  the court  responded,  "Well,  I  think I  have  heard            plenty."    When the  defense attorney was  making his  final            argument  at the close of the hearing, the court directed him            to "[c]oncentrate on the credit card."                      Within this  context,  the court's  stated  finding            that  Omisore  had violated  the  conditions  of his  release            contained  within it  an  implicit finding  that Omisore  had            attempted  to  purchase  goods  with a  stolen  credit  card.            Accordingly, although  it would  have been preferable  if the            district court had more  clearly articulated its findings and            reasons  for  revoking  Omisore's  supervised   release,  its            failure to do so did not constitute plain error.                                         -3-                      B.  Denial of Motion to Inspect Probation Records                          _____________________________________________                      Omisore argues  that  in denying  his  motion,  the            district court violated his  due process right to "disclosure            . .  . of evidence against him."  Morrissey, 408 U.S. at 489.                                              _________            See  also Fed.  R.  Crim. P.  32.1(a)(2)(B).   The  probation            ___  ____            records were  not used as evidence  against Omisore, however.            The  technical violations of failure  to timely report to the            probation  officer  were  continued  by  the  district  court            without  a  finding.     Moreover,  the  court  directed  the            probation department  to supply  the dates of  contact, which            were  recited  in  court.     The  evidence  against  Omisore            consisted of testimony by witnesses at the revocation hearing            regarding  Omisore's use  of  a  stolen  credit card.    That            evidence was fully disclosed to Omisore.                      Omisore   argues   that  the   testimony  regarding            frequent meetings  between Omisore and members  of the FOCTF,            despite denials that Omisore was being used  as an informant,            "should  have   alerted  the  court  to  the  fact  that  the            chronological entries, which  logged the probation  officer's            supervision  of   Mr.  Omisore,   may  well   have  contained            information which  corroborated Mr. Omisore's  contentions or            impeached the  witnesses or  both."  Omisore  never expressly            argued the purposes for which he sought the records, however.            Under those circumstances, the district court did not  err in            denying Omisore's  motion.                                         -4-                      II.  Merits of Revocation Decision                            _____________________________                      "[O]n  appeal [from a  decision revoking supervised            release], [this court] consider[s]  the evidence in the light            most favorable to the government." United States v. Portalla,                                               _____________    ________            985 F.2d 621, 622 (1st Cir. 1993).  Viewed in this light, and            recognizing  "the  district  court's  broad  legal  power  to            determine  witness credibility,"  id.,  the  record  contains                                              ___            sufficient evidence to  meet the "preponderance of  evidence"            standard.                      Omisore   argues  that  "[n]othing  in  the  record            establishes that  Mr. Omisore possessed or  actually used the            stolen  credit  card."   The  record  contains the  following            evidence that Omisore was the one who passed the stolen card.            Ruth Corliss, the cashier, identified Omisore in court as the            man  who  gave  her  the  card.    Although she  subsequently            indicated  some slight uncertainty,  she never  confirmed the            defense  attorney's  suggestion  that  another  man  was with            Omisore and gave her  the card.   Reham Pasha Ahmad, a  store            detective, testified that Omisore  identified himself as  the            owner  of  the card  and gave  a  social security  number and            birthdate in  an attempt  to prove  ownership.   The district            court did  not clearly err in finding  that Omisore attempted            to use a stolen  credit card, in violation of  the conditions                                         -5-            of his supervised release. There was  no abuse of discretion.                      The  district  court  judgment  revoking  Omisore's            supervised release is summarily affirmed.  See Loc. R. 27.1.                                  _________ ________   ___                                         -6-
