United States v. Marino

833 F.3d 1, 2016 U.S. App. LEXIS 14581, 2016 WL 4191497
CourtCourt of Appeals for the First Circuit
DecidedAugust 9, 2016
Docket15-1998P
StatusPublished
Cited by95 cases

This text of 833 F.3d 1 (United States v. Marino) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Marino, 833 F.3d 1, 2016 U.S. App. LEXIS 14581, 2016 WL 4191497 (1st Cir. 2016).

Opinion

THOMPSON, Circuit Judge.

Stage Setting

Paul Marino is a fraudster extraordinaire. Back in the early 2000s, for example, he ran a fairly elaborate scheme designed to swindle New Yorkers out of their property. In one instance Marino forged the rightful owners’ signatures on documents so he could transfer their property (without their consent, obviously) to himself (under an alias). He then transferred the property to an entity called “RYDPHO Holdings” — with “RYDPHO” standing for “Rip You Da Phuck Off,” apparently. Later he helped sell the property for $185,000. And he eventually wired some of the proceeds through bank accounts of companies he controlled. Fresh off the apparent success of this deception, he tried to do the same thing to other property owners. But they discovered what he was up to before he could complete the transfers.

Nabbed by law enforcement, Marino pled guilty in New York federal court to a single count of wire fraud. See 18 U.S.C. § 1343. Probation filed a presentence-in-vestigation report detailing his lengthy criminal record, which included convictions for things like fraud, larceny (e.g., he had stolen a generator while awaiting sentencing on the scheme described in the preceding paragraph), forgery, and conspiracy to use — and use of — unauthorized access devices, as well as revocation of supervised release and re-imprisonment based on a fraud offense. And ultimately, a judge sentenced him to 14 months in prison, 36 months of supervised release, and restitution of $185,000. Among the conditions of supervised release were that he “notify” probation “at least ten days prior to any” employment change and “within seventy-two hours of being arrested or questioned by a law enforcement officer,” pay restitution “at a rate of 10% of [his] gross monthly income,” and “not commit another federal, state, or local crime.”

Marino served his jail time but soon found himself in trouble again, with probation asking the Massachusetts federal court to revoke his supervised release (that court had taken jurisdiction over his supervised release). As relevant here, probation alleged that he (1) ran a construction and home-inspection business from his house without telling probation; (2) failed to notify probation within 72 hours of police contact — -like after he got stopped for speeding, for example; (3) did not make the required restitution payments; (4) committed two new crimes — defrauding Dell, Inc. (an electronics company) and the Massachusetts Department of Transitional Assistance (“DTA,” from now on, a state agency that runs public-assistance programs like food stamps and job training); *4 and (5) tampered with electronic-monitoring equipment probation installed in his house (a judge had imposed the no-tampering condition after police arrested him for violating other supervised-release conditions). 1

Responding to probation’s charges, Mar-ino filed a memo admitting to violating the first three violations, acknowledging the judge should revoke his supervised release, and declaring no need to “convenfe] protracted mini-trials” to address the other infractions (the state courts should handle the fraud issues, he wrote). The judge held a revocation hearing. And hoping to prove the nonconceded-to charges as well, the government called four witnesses: Cheryl Fontaine, who had hired Marino as a contractor; Officer Jeremy DeMello, who logged a fraud complaint received from Scott Hudson of Dell’s fraud unit — Hudson was based in Texas; Detective Raul Espi-nal, who helped search Marino’s home for equipment stolen from Dell; and Probation Officer Fredrick Lawton, who testified about a number of things, including Mari-no’s construction work, his fraud against Dell and DTA, and his tampering with his electronic-monitoring device. The government also introduced documentary evidence, including photos of two “return” boxes shipped back to Dell from Marino’s home address (boxes filled with construction materials or rocks, not Dell products, we add); a list of items — with identifying serial numbers — that Dell reported stolen, items that the police recovered from Mari-no’s house; contracts and bank checks involving Marino’s construction work; and Marino’s application for DTA benefits, plus his correspondence with DTA. Marino, for his part, did not testify or present evidence.

At the end of the hearing the judge found facts confirming that Marino had committed new crimes by defrauding Dell and DTA and that he had tampered with his electronic-monitoring gadget. So the judge revoked Marino’s supervised release and sentenced him to 12 months in prison (the top of the uncontested sentencing range of 6-12 months) followed by 24 months of supervised release, with the judge imposing as a special condition that he spend the first 12 months of his supervised release at Coolidge House — a residential reentry center in Boston. The judge also “reimpose[d]” “[a]ll previously imposed conditions.”

Marino now appeals, raising three broad arguments. His lead claim is that the judge erred by admitting hearsay evidence concerning Dell’s fraud investigation of him. Next he insists that insufficient evidence supported the judge’s finding that he had cheated Dell and DTA and that he had monkeyed around with the electronic-monitoring equipment. And last he contends that the judge’s sentence requiring him to spend a year at Coolidge House is substantively unreasonable. We analyze these arguments sequentially, noting additional facts as needed. And when all is said and done, we affirm.

Hearsay

Marino thinks the judge slipped up by admitting two groups of hearsay statements: the first involves a list of items— together with their serial numbers — that Dell reported stolen; the second involves Probation Officer Lawton’s testimony summarizing a report he received from Hudson, Dell’s fraud investigator. As Marino sees things, the judge’s actions infracted the “limited confrontation right” in federal revocation proceedings. See United States *5 v. Rondeau, 430 F.3d 44, 48 (1st Cir. 2005); see also Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Fed. R. Crim. P. 32.1(b)(2)(C). Reviewing for abuse of discretion, Rondeau, 430 F.3d at 48, we spy no error.

Guiding Principles

A supervised releasee facing a revocation proceeding has a qualified right “to ... question any adverse witness unless the [judge] determines that the interest of justice does not require the' witness to appear.” See Fed. R. Crim. P. 32.1(b)(2)(C) (emphasis added). What this means is that hearsay testimony can get in. See, e.g., Rondeau, 430 F.3d at 48. But the judge should balance “the releasee’s right to confront witnesses with the government’s good cause for denying confrontation.” Id. In doing that, the judge should consider the hearsay testimony’s reliability and the government’s rationale for not producing the declarant (with “declarant” being legalese for the person who made the statement). See id.; see also United States v.

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Cite This Page — Counsel Stack

Bluebook (online)
833 F.3d 1, 2016 U.S. App. LEXIS 14581, 2016 WL 4191497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-marino-ca1-2016.