United States v. Marino
2016 U.S. App. LEXIS 14581
| 1st Cir. | 2016Background
- Paul Marino pleaded guilty to wire fraud and was sentenced to 14 months imprisonment, 36 months supervised release, and $185,000 restitution. Supervised-release conditions included prior notice to probation of employment changes, a 10% gross-income restitution payment rate, a 72-hour reporting requirement after police contact, and a prohibition on new crimes and tampering with electronic-monitoring equipment.
- Probation moved to revoke Marino’s supervised release, alleging (inter alia) unreported construction/home-inspection work, missed restitution payments, new frauds against Dell, Inc. and the Massachusetts DTA, and tampering with his GPS/electronic-monitoring device.
- At the revocation hearing Marino admitted some violations but contested the Dell- and DTA-fraud allegations and device tampering. The government presented witness testimony (including summaries of a Dell investigator’s statements) and documentary evidence (inventory lists with serial numbers, police reports, photos, contracts, checks, and DTA correspondence). Marino did not testify or present evidence.
- The judge found by a preponderance that Marino committed fraud against Dell and DTA and tampered with his monitoring device, revoked supervised release, imposed 12 months imprisonment (top of the range), 24 months supervised release, and ordered the first 12 months of supervised release to be served at Coolidge House (a residential reentry center), and reimposed prior conditions.
- Marino appealed, arguing: (1) improper admission of hearsay (limited confrontation) regarding Dell’s investigation; (2) insufficient evidence to support findings of Dell/DTA fraud and tampering; and (3) the Coolidge House residency condition was substantively unreasonable.
Issues
| Issue | Plaintiff's Argument (Marino) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Admission of hearsay (Dell inventory and summaries of Dell investigator) | Admission violated limited confrontation rights; government should have produced investigator, affidavit, or business records | Hearsay was reliable, corroborated by police recovery and reports; procuring out-of-state investigator was burdensome; judge balanced rights and reliability | Admissibility affirmed; judge did not abuse discretion in admitting corroborated hearsay |
| Sufficiency of evidence for Dell fraud | No proof Marino ordered or returned items; officer testimony was not admitted for truth and unreliable | Police found Dell-listed items at Marino’s home; witness accounts and documents tied Marino to orders/returns | Evidence sufficient under preponderance; findings not clearly erroneous |
| Sufficiency of evidence for DTA fraud | No proof Marino received benefits or had unreported income | DTA correspondence, Marino’s pro se concession he received assistance, and evidence he ran a construction business (payments to CWD tied to Marino) support findings | Evidence sufficient to find Marino received benefits and failed to report income |
| Tampering with electronic-monitoring device | Glue applied for benign purpose; violation requires proof of disabling or nefarious effect | Condition forbade unauthorized tampering; officer warned Marino not to tamper and to raise concerns with probation | Finding of tampering sustained; prohibition covers unauthorized modifications regardless of demonstrated disabling effect |
| Reasonableness of Coolidge House special condition | One-year community confinement is excessive, restrictive, far from family, impedes employment, and conflicts with Guidelines note recommending generally no more than six months | Defendant has long history of recidivism and fraud; structured, restrictive placement justified to protect public and rehabilitate; judge considered need for structure | Condition reasonable and within judge’s broad discretion; one-year stay supported by record and sentencing goals |
Key Cases Cited
- United States v. Rondeau, 430 F.3d 44 (1st Cir.) (limited confrontation balancing in revocation hearings)
- Morrissey v. Brewer, 408 U.S. 471 (procedural protections in parole/revocation proceedings)
- Gagnon v. Scarpelli, 411 U.S. 778 (reliability of substitutes for live testimony in revocation contexts)
- United States v. Mulero-Díaz, 812 F.3d 92 (1st Cir.) (hearsay/reliability considerations)
- United States v. Portalla, 985 F.2d 621 (1st Cir.) (detail and corroboration as reliability indicators)
- United States v. Oquendo-Rivera, 586 F.3d 63 (1st Cir.) (preponderance standard and review in supervised-release revocation)
- United States v. Cruz, 120 F.3d 1 (1st Cir. en banc) (standards for supervised-release revocation)
- United States v. Vixamar, 679 F.3d 22 (1st Cir.) (deference on sufficiency and credibility in revocation findings)
- United States v. Garrasteguy, 559 F.3d 34 (1st Cir.) (flexibility in supervised-release conditions)
- United States v. Vargas-Dávila, 649 F.3d 129 (1st Cir.) (abuse-of-discretion standard for sentencing conditions)
- United States v. Jiménez–Beltre, 440 F.3d 514 (1st Cir.) (reasonableness and inferable record support for supervised-release conditions)