United States v. Portalla

• Court: Court of Appeals for the First Circuit
• Decided: February 8, 1993
• Docket: 92-1512
• Status: Published

Opinion

USCA1 Opinion

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  &  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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(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

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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.

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                                          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

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                                          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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