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United States v. Marino

United States Court of Appeals, First Circuit

August 9, 2016

PAUL MARINO, Defendant, Appellee.


          James L. Sultan, with whom Audrey M. Grace and Rankin & Sultan were on brief, for appellant.

          Francesco Valentini, Attorney, Criminal Division, United States Department of Justice, with whom Leslie R. Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy Assistant Attorney General, and Carmen M. Ortiz, United States Attorney, were on brief, for appellee.

          Before Thompson, Selya, and Kayatta, Circuit Judges.

          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-investigation 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); 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, Marino filed a memo admitting to violating the first three violations, acknowledging the judge should revoke his supervised release, and declaring no need to "conven[e] 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 Espinal, who helped search Marino's home for equipment stolen from Dell; and Probation Officer Fredrick Lawton, who testified about a number of things, including Marino'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 Marino'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.


         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 v. Rondeau, 430 F.3d 44, 48 (1st Cir. 2005); see also Morrissey v. Brewer, 408 U.S. 471, 489 (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. Mulero-Díaz, 812 F.3d 92, 96 (1st Cir. 2016).

         On the reliability front, caselaw holds (so far as relevant here) that "conventional substitutes for live testimony, " like "affidavits, depositions, and documentary evidence, " ordinarily possess sufficient indicia of reliability, Gagnon v. Scarpelli, 411 U.S. 778, 782 n.5 (1973) - as does hearsay testimony about statements that are corroborated by other evidence, are detailed, or were repeated by the declarant without any material changes, see Rondeau, 430 F.3d at 48-49; United States v. Portalla, 985 F.2d 621, 624 (1st Cir. 1993). This is a nonexhaustive catalog, as particular cases vary. See Rondeau, 430 F.3d at 48. Anyway, on the explanation front, caselaw recognizes that "concern . . . with the difficulty and expense of procuring witnesses from perhaps thousands of miles away" is a paradigmatic example of the type of situation that might call for the admission of hearsay evidence at a revocation proceeding. See Gagnon, 411 U.S. at 782 n.5.


         Over a hearsay objection by Marino's counsel, the judge admitted a list of items, with serial numbers, that Dell reported stolen to the police. Officer DeMello, who had talked by phone with Dell's Hudson about Marino's fraudulent orders, testified that someone had given that list to "the detectives" - the fair inference being that the "someone" was a Dell employee. Marino calls the list unreliable, pouncing on the fact that Officer DeMello did not know key particulars, like who had compiled it. But Detective Espinal's separate testimony helped confirm the list's reliability: As the police searched Marino's home with a warrant in hand, Detective Espinal's colleague, Detective Scott Brown, "had a list of all the items" the police were looking for, along with the items' "serial numbers." And, as Detective Brown wrote in a section of his report (which the judge admitted into evidence on Marino's lawyer's motion), the police found "[e]ach and every" sought-after "item" at that locale. This constellation of corroborating evidence lends ample indicia of reliability to the list. See Rondeau, 430 F.3d at 48 (noting how corroboration helps with reliability).

         On to Marino's attack on the reliability of Probation Officer Lawton's summary of Dell's fraud investigation. And this is what you need to know:

         Over another hearsay objection by Marino's attorney, the judge let Probation Officer Lawton testify about how after he caught wind of Dell's fraud report to the police, he called Dell's Hudson. Hudson told him, Probation Officer Lawton added, that "Marino had been having" Dell ship expensive electronic equipment "to his house" - though after getting the merchandise, Marino would call Dell, say that he wanted to return the items, and then send back instead boxes filled with "construction" materials (like "sheetrock") or "rocks, " without the equipment. More, again according to Probation Officer Lawton's testimony of what Hudson said, Marino once told Dell that he did not get a computer monitor that he had ordered, that it might have been stolen off his porch, and that Dell should send him a new one. Dell obliged. But a little later he told Dell that "he didn't want" the new "monitor, " though the one he eventually "returned was the first monitor" - i.e., the monitor he claimed had been stolen.

         Contesting the evidence's trustworthiness, Marino stresses that "Hudson's putative statements regarding . . . the alleged fraud were neither written nor sworn under oath." True. But we think this evidence nonetheless passes the reliability threshold. For one, the statements are packed with details. See Portalla, 985 F.2d at 624 (explaining that "detail" is a reliability indicator). For another, they are corroborated by evidence developed by the police - not only did law enforcement find the items Dell had reported stolen at Marino's residence, but Detective Brown's report (the part admitted at Marino's counsel's behest) noted that Marino's wife had said during the search that Marino "had ordered that stuff" from Dell. See Rondeau, 430 F.3d at 48 (emphasizing that corroboration is a reliability indicator). Also, Hudson consistently articulated the same version of events - he spoke to Officer DeMello and Probation Officer Lawton separately, and their respective testimony about his comments ...

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