Filed: Aug. 28, 2001
Latest Update: Feb. 21, 2020
Summary: , Donald K. Stern, United States Attorney, and Jennifer Hay, Zacks, Assistant U.S. Attorney, on Motion for Summary, Disposition.Summary Disposition, pursuant to Loc.United States v. Whalen, 82 F.3d 528, 532 (1st Cir.878 F.2d 1506, 1514 n. 8 (1st Cir.Casciano had threatened them using obscenities.
[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-1796
UNITED STATES,
Appellee,
v.
MICHAEL A. CASCIANO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.
Howard M. Cooper, David H. Rich and Todd & Weld LLP on brief
for appellant.
Donald K. Stern, United States Attorney, and Jennifer Hay
Zacks, Assistant U.S. Attorney, on Motion for Summary
Disposition.
July 10, 2001
Per Curiam. Michael A. Casciano appeals from the
district court’s order revoking his supervised release and
imposing a sentence of 12 months’ imprisonment, followed by
two years’ supervised release. Casciano contends on appeal
that the district court clearly erred in determining that
the witnesses who testified against him at his revocation
hearing were credible when they stated that Casciano
threatened them. The government has filed a Motion for
Summary Disposition, pursuant to Loc. R. 27(c).
This court reviews the district court’s decision
to revoke supervised release for abuse of discretion, while
the underlying finding that Casciano violated a term of
supervised release is reviewed for clear error. See e.g.,
United States v. Whalen, 82 F.3d 528, 532 (1st Cir. 1996).
The government has the burden of proving by a preponderance
of the evidence that at least one of the conditions of the
defendant's supervised release was violated. United States
v. Portalla,
985 F.2d 621, 622 (1st Cir. 1993).
"Credibility determinations by the trier of fact
are accorded special deference," United States v. Bouthot,
878 F.2d 1506, 1514 n. 8 (1st Cir. 1989), particularly
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because only the trial court can judge a witness's demeanor
or tone of voice, see United States v. Carty, 993 F.2d 1005,
1009 (1st Cir. 1993) (citing Anderson v. Bessemer City,
470
U.S. 564, 575,
105 S. Ct. 1504, 1512,
84 L. Ed. 2d 518 (1985)).
Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly
erroneous. United States v. Marrero-Rivera,
124 F.3d 342,
347 (1st Cir. 1997). Moreover, on appeal of a revocation of
supervised release, we consider the evidence in the light
most favorable to the government. See
Portalla, 985 F.2d at
622.
Upon a careful review of the record, we cannot hold
clearly erroneous the district court’s decision to credit
Watson’s and Riopelle’s testimony that Casciano threatened
them. The inconsistencies complained of by Casciano on
appeal are merely variations in degree of detail the
witnesses gave to the various police officers who questioned
them. Both witnesses testified that they gave explicit
detail about the incident when asked to elaborate by
authorities. Both witnesses consistently reported that
Casciano had threatened them using obscenities.
Accordingly, we conclude that the district court
did not clearly err in finding that Casciano had made a
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criminal threat, resulting in a violation of a condition of
supervised release, and did not abuse its discretion in
deciding to revoke supervised release.
The Government’s Motion for Summary Disposition is
granted. Casciano’s sentence is affirmed. See Loc. R.
27(c).
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