THOMPSON, Circuit Judge.
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.
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);
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.
A supervised releasee facing a revocation proceeding has a qualified right "to... question any adverse witness
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,
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.
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
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.
Marino complains that the government never explained at the hearing why
Yes, the government did not explain below why it relied on hearsay testimony rather than, say, on Dell business records (
But here is why we find no abuse of discretion in this particular instance. Both sides played up the balancing test below — the government (to cite just one example) reminded the judge that he had to "balance" Marino's "right to confront witnesses with the government's good cause for denying confrontation." And, after reading the relevant caselaw, the judge straight-out said that he had done precisely that. Again, the government did not directly tell the judge what its good cause was. It focused its energies instead on defending the evidence's reliability, perhaps because Marino centered his attacks on reliability — he said nothing about the government's explanation (or lack of one), which means that he did not (as he does now) fault the government for not explaining why it passed on presenting the pined-for evidence. But remember, the record shows that Hudson worked out of Texas. And remember too, Marino copped to several infractions before the hearing, conceded the judge should revoke his supervised release, and declared no need for any "mini-trials" to deal with the other alleged infractions. Well, given these specific circumstances, we accept the idea that it was reasonable for the government not to incur "the difficulty and expense of procuring" Hudson "from ... thousands of miles away,"
The abuse-of-discretion standard is not "appellant-friendly," to put it mildly, because it requires "strong evidence that the... judge indulged a serious lapse in judgment."
That takes us to Marino's sufficiency claims — claims premised on his belief that the government offered insufficient evidence to establish his Dell or DTA fraud or his tampering with the electronic-monitoring gizmo. Before tackling his arguments, we briefly sketch the legal rules governing our review.
The government must prove it is more likely true than not (the usual preponderance standard) that the defendant violated a condition of supervised release.
Sufficiency challenges are notoriously hard to win, because "(a) the evidence must be viewed in the light most agreeable to the government, (b) the judge's choice among competing but plausible inferences from the evidence cannot as a matter of law be clearly erroneous, and (c) credibility calls" are for the judge — not for us.
Evaluated using the just-described techniques, the record here features sufficient evidence to sustain the judge's finding that Marino defrauded Dell. Recall first Officer DeMello's testimony: He said that Dell's Hudson ID'd Marino as the suspect in a merchandise-ordering scam, reporting conduct that bore the hallmarks of fraud —
Unfortunately for Marino, his arguments against the evidence's sufficiency are not difference makers. He suggests, for starters, that the judge did not admit Officer DeMello's testimony for the truth. The judge made this not-for-the-truth comment after Marino's lawyer argued that the officer's testimony about Hudson's report was "rank hearsay." But once the government concluded its case, the judge reviewed the pertinent precedent (
Enough said about the sufficiency of the evidence on the Dell-fraud charge.
As for the DTA-fraud issue, Marino does not dispute that he applied for public assistance with DTA, certifying under the pains and penalties of perjury that he did not earn any income. Neither does he dispute that he knew (thanks to the form he signed) that he had to notify DTA "within 10 days" of any change in income. Nor does he dispute that he never reported any income to DTA. Instead he contends that the government provided insufficient evidence to prove that he actually received public assistance from DTA or that he earned any income during his supervised release. Neither contention is convincing.
Taking the evidence and permissible inferences in the light most flattering to the government, we think sufficient proof supports the judge's finding that Marino got DTA public assistance. Among other evidence, the government introduced a letter DTA sent Marino during the relevant period warning him that his "benefits may stop" if he "did not keep" a scheduled "appointment" with a DTA official — the obvious inference from this is that Marino collected public assistance from DTA. Equally devastating to this aspect of his claim, Marino concedes in his pro se supplemental brief that he actually did get a "public assistance monthly allowance."
Viewed in the proper light, the evidence and reasonable inferences also amply support the finding that Marino earned income that he should have told DTA about. Marino, recall, stipulated at the revocation hearing to having worked in the construction industry without probation's blessing. And the evidence admitted at the hearing showed that Cheryl Fontaine hired Marino as a contractor and sent thousands of dollars' worth of checks to "CWD Construction Company Inc." — a company she had contacted by email after doing some online research. Marino points out that Fontaine made these checks payable to CWD, not to him. But there was evidence that Marino "ran" CWD — Marino's own lawyer called CWD "Mr. Marino's company." From this evidence the judge could reasonably count at least some of Fontaine's payments as income to Marino, income that — the uncontested evidence shows — could have caused DTA to reduce or even eliminate Marino's public-assistance benefits.
Marino does not contest that a condition of release required him to submit to "location monitoring technology as directed by the ... supervising officer" and "abide by all of the program requirements and instructions provided by the ... supervising officer related to the proper operation of the technology." Nor does he contest that he put "glue or plastic substance" on the base unit of his electronic-monitoring device without permission. Instead
The simple answer to Marino's argument is that Probation Officer Lawton instructed him not "to tamper" with the device, adding that if Marino "had some concerns about it" he had to bring them up with probation. Given this testimony, together with the condition's clear-as-day language, the judge could supportably conclude that the "program[`s] requirements" barred Marino from making
Marino last argues that the special condition that he spend the first year of supervised release at Coolidge House makes his sentence "substantively unreasonable" and is "unwarranted by the evidence." But this argument meets the same fate as his preceding ones.
When a judge revokes a defendant's supervised-release term, the new sentence may include an additional supervised-release stint,
A judge has "significant flexibility" in formulating special conditions of supervised release.
Trying a slightly different tack, Marino argues that Coolidge House is too restrictive, citing to the center's rules controlling the residents' comings and goings and limiting their cell-phone, internet, and computer use on the center's premises. According to his pro se supplemental brief, he needs a job to earn the "several thousand dollars a month" his family needs to sustain its lifestyle. And — his argument continues — the center's restrictions will severely crimp his ability to find work. He also complains that Coolidge House is too far from his family, noting how the center is about 60 miles from where his wife and daughter live. None of these arguments persuades, however.
Take Marino's the-center-is-too-restrictive argument. We agree that a judge should not lightly impose restrictions of the type complained about here. But the judge did not impose the Coolidge House special condition lightly — again, he hit Marino with it only after the earlier supervised-release conditions had indisputably failed.
Also, Marino's own counsel conceded at the revocation hearing that the judge should "buil[d]" a "structured environment" into the sentence. And surely the center's coming-and-going limitations are part and parcel of a "structured environment." On top of that, Marino's complaints about the center's cell-phone, internet, and computer restrictions conveniently ignore that residents in his shoes (
Marino is also wrong in suggesting that the special condition denies him his fundamental right to associate with his family because the Coolidge House is located about 60 miles from his family's home. Almost every supervised-release condition restricts a felon's liberty.
As a fallback, Marino argues that his one-year community-confinement term "directly contravenes" section 5F1.1 of the federal Sentencing Guidelines. That section says that "[c]ommunity confinement may be imposed as a condition of probation or supervised release." Application note 2 to that section states (emphasis ours) that "[c]ommunity confinement
Accusing the judge of not really "consider[ing]" section 5F1.1, Marino calls the judge's explanation insufficient to justify giving him double the "length of time in community confinement ... suggested by the Sentencing Commission." But he also insists that his lawyer said enough at the hearing to preserve the section-5F1.1 issue for appeal. And we can infer that the judge considered and rejected Marino's points before settling on one year of community confinement, with the judge's comments about Marino's past failures justifying the need for a more "structured environment" — which means the condition imposed is grounded in a plausible view of the circumstances and culminates in a "defensible overall result."
Having carefully considered all of Marino's claims (including some that merit no discussion), we