United States v. Occhiuto , 784 F.3d 862 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 13-2299
UNITED STATES OF AMERICA,
Appellee,
v.
NICHOLAS OCCHIUTO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Barron, Circuit Judge,
Souter,* Associate Justice,
and Lipez, Circuit Judge.
John M. Thompson, with whom Robert F. Hennessy and Thompson &
Thompson, PC were on brief, for appellant.
Kelly Begg Lawrence, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
May 4, 2015
*
Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
BARRON, Circuit Judge. Nicholas Occhiuto brings two
challenges to his convictions for conspiracy to distribute heroin
and distribution of heroin in violation of 21 U.S.C. §§ 846 and
841. He contends that the government relied on testimony that
violated the Confrontation Clause and that the District Court
denied him constitutional due process in preventing him from
calling a witness critical to his defense. Occhiuto also
challenges his sentence on the grounds that the District Court
clearly erred in its factual determinations under the Sentencing
Guidelines and imposed a term of imprisonment that was
substantively unreasonable. We find no merit to any of these
challenges and therefore affirm.
I.
A.
We begin with the Confrontation Clause challenge. See
U.S. Const. amend. VI ("In all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses
against him . . . ."). Occhiuto's challenge takes aim at the
testimony FBI Special Agent Jeffrey Wood provided at his trial.
Wood oversaw an investigation into Occhiuto in the fall
of 2009. The investigation into Occhiuto was undertaken as part of
a broader investigation by federal, state, and local law
enforcement into drug trafficking in Lynn, Massachusetts, and
neighboring areas.
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Wood testified at trial about how the investigating
officers arranged for a cooperating informant, whom we will call
"A.J.",1 to make undercover purchases from Occhiuto that law
enforcement agents would secretly record by video. The government
also presented surveillance evidence and testimony to establish
that Occhiuto made sales of heroin to A.J. on October 1, 2009, and
October 5, 2009, and a sale of cocaine to her on September 29,
2009.
In his testimony, Wood described the measures that law
enforcement agents undertook to record A.J.'s undercover encounters
with Occhiuto. Wood testified that a team of officers was nearby
during the encounters, placed audio-visual recording equipment in
A.J.'s vehicle, and had A.J. wear a wire. Wood also testified that
A.J. was a known drug user and that law enforcement agents
undertook some additional steps to ensure the retrieval of physical
evidence from A.J. after each of her recorded encounters with
Occhiuto. To that end, Wood testified, law enforcement agents met
with A.J. before and after each encounter and searched her person
for contraband.
Occhiuto objects specifically to the portion of Wood's
testimony in which Wood stated that the drugs in evidence were the
1
We will assign initials to refer to the confidential
informant "in light of concerns about the safety of cooperating
witnesses raised by the Committee on Court Administration and Case
Management of the Judicial Conference of the United States."
United States v. Etienne, 772 F.3d 907, 910 n.1 (1st Cir. 2014).
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same drugs that Occhiuto had sold to A.J. on the dates covered by
the surveillance. Occhiuto argues that Wood's testimony about the
controlled buys relied on, and thus necessarily relayed to the
factfinder, what A.J. had said to Wood about what occurred during
her encounters with Occhiuto. And thus, Occhiuto argues, this
aspect of Wood's testimony violated the Confrontation Clause
because it implicitly -- but necessarily -- related the out-of-
court statements made by the informant, A.J., about her
transactions with Occhiuto.
To support this contention, Occhiuto relies on United
States v. Meises, 645 F.3d 5 (1st Cir. 2011). There, we found a
Confrontation Clause violation based on an agent's testimony that
implicitly related the statements of an informant who did not
testify at trial. See id. at 18-21. The agent in Meises was asked
on the stand if anything the informant had said during an interview
"changed the targets of the investigation and prompted the
defendants' arrests," and the agent then answered in the
affirmative. Id. at 21.
Meises held, on the basis of that record, that the
government had sought to prove its case with "testimony that
plainly told the jurors that [the informant] said [the defendants]
were co-conspirators rather than with the available evidence
circumstantially pointing to their culpability." Id. (emphasis
omitted). Meises explained that it "ma[de] no difference that the
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government took care not to introduce [the informant's] 'actual
statements'" since a "reasonable jury could only have understood
[the agent] to have communicated that [the informant] had
identified appellants as participants in the drug deal." Id.
But this case is not at all like Meises. Nothing in
Wood's testimony suggested that a reasonable factfinder "could only
have understood [Wood] to have communicated that [A.J.] had" told
Wood that Occhiuto had sold her the drugs. Wood did not purport to
recount anything during his testimony that A.J. had said to him
about the buys. Wood did recount that he "debriefed" A.J. after
the controlled buys in his description of what control measures
that law enforcement undertook. But, despite Occhiuto's assertion
that A.J. must have told Wood about the controlled buys during the
debriefings, nothing in Wood's testimony referenced the content of
these debriefings. Wood testified, throughout, without reference
-- direct or indirect -- to any statement A.J. may have made to him
about what had been exchanged, and Occhiuto identifies nothing in
the record to suggest otherwise. See, e.g., United States v.
Foster, 701 F.3d 1142, 1154 (7th Cir. 2012) ("The challenged
testimony . . . exclusively concerned the agents' personal
observations and actions: the agents personally witnessed the
controlled buys, searched the CI before and after each transaction,
and followed the CI to the debriefing location after each
transaction to collect the drugs, money, and recording equipment.
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Accordingly, their own actions formed the basis for their
testimony, and their testimony did not relay 'nonverbal conduct'
statements of the CI.").
Instead, Wood, by virtue of the surveillance, could
testify about what had been exchanged during the encounters from
his personal observations. Wood was on the scene on each of the
relevant dates. And he testified that he had searched A.J. before
and after each buy and monitored her interactions with Occhiuto.
Thus, his testimony that the transactions involved the same drugs
put in evidence did not necessarily rely on any statements from
A.J.
Occhiuto nonetheless argues that Wood must have been
relying on statements that A.J. made to him at the time of the
transactions because the evidence showed gaps in Wood's knowledge
of what happened during the controlled buys that could only have
been filled by such statements. And thus, Occhiuto contends,
Wood's testimony must be understood to have relayed those same
statements.
Occhiuto notes in this regard that there is no direct
evidence to confirm that A.J. did not tamper with the evidence
before handing it to the investigating agents, who (led by Wood)
were conducting the contemporaneous surveillance. And Occhiuto
contends that the agents, according to Wood's own testimony, did
not do the most thorough search possible of A.J.'s body before and
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after each encounter she had with Occhiuto. As a result, Occhiuto
says, there is a chance that A.J. could have concealed drugs on her
person and thus a chance that Wood would not actually have seen the
drugs A.J. purchased.
To bolster this argument, Occhiuto notes that Wood's
testimony showed that A.J. had even, in other instances,
manipulated controlled buys and stolen the government's buy money.
Occhiuto thus concludes that "[t]he evidence created a concrete
possibility that, for whatever reason, [A.J.] had delivered to Wood
something other than the items Occhiuto had delivered to her."
But the fact that there may have been holes in Wood's
testimony that drugs were exchanged and that those drugs were the
drugs in evidence does not show that Wood was therefore relaying
out-of-court statements from A.J. in offering that testimony. Wood
based this testimony on surveillance that might have been
imperfect. But, at most, the imperfections could support a
challenge to the weight to be accorded Wood's testimony. They
cannot show that Wood's testimony, because less than airtight, was
other than it was: testimony that relayed Wood's own observations
and not statements made out of court by someone Occhiuto could not
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confront at trial.2 Thus, there was no Confrontation Clause violation.
B.
Occhiuto next argues that the District Court deprived him
of his constitutional right to present a defense by denying his
request to call a particular witness, Victor Bizzell. Occhiuto
contends that Bizzell's testimony would have provided "evidence in
the form of an admission by [A.J.] that she ripped off the buy
money in one of the controlled buys with Occhiuto." According to
Occhiuto, such evidence would serve two purposes: to undermine the
government's theory that the controlled drug buys had been
legitimate and to show A.J. to be an unreliable cooperating
informant. And each point, presumably, would have given reason to
doubt Agent Wood's testimony concerning what had been exchanged
during the encounters between A.J. and Occhiuto that Wood observed.
"[D]istrict courts must carefully balance an accused's
right to present evidence with [other] considerations," United
States v. Brown, 500 F.3d 48, 57 (1st Cir. 2007), like the
"integrity of the adversary process, which depends both upon the
2
To the extent that Occhiuto contends that A.J.'s statements
in the recordings were themselves in violation of the Confrontation
Clause, his argument fails, as those statements "were not admitted
to prove the truth of the matter asserted but rather to provide
context for [Occhiuto's] statements, and thus did not violate the
Confrontation Clause." United States v. Hicks, 575 F.3d 130, 143
(1st Cir. 2009); see also United States v. Walter, 434 F.3d 30, 34
(1st Cir. 2006) ("At trial, the taped conversations that were used
by the prosecution contained a number of admissions by [the
defendant]. . . . [The third party's] statements merely placed [the
defendant's] admissions in context.").
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presentation of reliable evidence and the rejection of unreliable
evidence, [and] the interest in the fair and efficient
administration of justice," United States v. Levy-Cordero, 67 F.3d
1002, 1013 (1st Cir. 1995) (quoting Taylor v. Illinois, 484 U.S.
400, 414-15 (1988)). For that reason, a district court's
determination as to the admissibility of witness testimony is
reviewed for abuse of discretion. Brown, 500 F.3d at 57-58 & n.4.
There was no abuse of discretion here. Occhiuto, by his
own description, sought to admit Bizzell's testimony in order to
prove the truth of what A.J. had said to Bizzell -- namely, that
she was actually involved in a scam at the time of her "controlled
buys" with Occhiuto. Thus, Bizzell's testimony as to A.J.'s out-
of-court statements to Bizzell -- because such testimony would have
been introduced to prove the truth of the matter asserted within --
would have constituted hearsay. See Fed. R. Evid. 801(c). And
Occhiuto has not demonstrated how Bizzell's testimony would have
been admissible under any exception to the hearsay rule. In
consequence, the District Court acted well within its discretion in
declining to permit Bizzell's testimony.3
3
Occhiuto does argue that A.J.'s statements to Bizzell
qualify as a statement against her penal interest, see Fed. R.
Evid. 804(b)(3), but that hearsay exception is only available when
a witness is otherwise unavailable, see United States v. Weekes,
611 F.3d 68, 71 (1st Cir. 2010) (describing proponent of statement
must meet a "relatively high" standard to prove unavailability),
and Occhiuto never asserted or established A.J.'s unavailability.
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Occhiuto responds that Bizzell's testimony had to be
admitted "irrespective of whether it[] [was] hearsay or not" given
that the testimony "went to the heart of Occhiuto's defense."
Occhiuto argues in this regard that evidentiary rules designed to
ensure reliability can be trumped by the defendant's right to
present a defense. See Chambers v. Mississippi, 410 U.S. 284, 299,
302-03 (1973).
But Occhiuto's appeal to that general proposition does
not explain either why the hearsay component of Bizzell's testimony
would not have been available from some other source or how that
testimony had other indicia of reliability and persuasiveness. See
id. at 302. And thus Occhiuto does not explain how the District
Court erred in exercising its discretion to deny hearsay testimony
from this particular witness, in light of the specific grounds that
the District Court gave for deciding to do so.
Finally, Occhiuto suggests that Bizzell's testimony could
also have aided his defense even if that testimony had been
admitted only to impeach the reliability of the government's
cooperating informant, A.J. Testimony about a statement, if not
offered to prove the truth of the matter asserted in the statement,
falls outside of the definition of hearsay. See Fed. R. Evid.
801(c). But, Bizzell's testimony -- if used only for that purpose
-- still would raise the issue of whether it was cumulative
evidence that could be excluded on that basis. See Fed. R. Evid.
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403. The District Court explained that if Occhiuto sought to
introduce Bizzell's testimony "simply [for] the impeachment value
with respect to the information that comes from [A.J.] . . . I
think the record is uncontested on that." And the record supports
that conclusion. Wood testified that A.J. had stolen the
government's buy money on several instances and that she was a
known drug user. Wood also explained that A.J. was recruited to
assist the investigation because she had access to suspected drug
dealers. The District Court therefore acted well within its
discretion in excluding what it reasonably determined to be
cumulative evidence. See United States v. Marino, 277 F.3d 11, 24
(1st Cir. 2002).
II.
Occhiuto also challenges his sentence. He contends that
the District Court erred in finding certain facts that it used to
determine the appropriate sentence under the Sentencing Guidelines
and that the imposed sentence was substantively unreasonable.
A.
A district court's factual findings at sentencing are
reviewed for clear error. United States v. Ramos-Paulino, 488 F.3d
459, 463 (1st Cir. 2007). Clear error will be found only when,
upon whole-record review, a reviewing court "form[s] a strong,
unyielding belief that a mistake has been made." United States v.
Cintron-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010) (alteration in
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original) (quoting Cumpiano v. Banco Santander P.R., 902 F.2d 148,
152 (1st Cir. 1990)).
The District Court had to calculate the recommended
sentencing range under the Sentencing Guidelines. That calculation
depended on a factual finding about the weight of drugs that
Occhiuto sold. Occhiuto contends that the District Court's finding
was clearly erroneous because it relied on a determination
contained in the presentence report, the accuracy of which Occhiuto
disputes now and challenged at the time. See United States v.
Sepulveda, 15 F.3d 1161, 1198 (1st Cir. 1993).
It is true that a presentence report is not beyond
scrutiny, as a "district court is obliged to resolve any genuine
and material dispute on the merits." United States v. Cyr, 337
F.3d 96, 100 (1st Cir. 2003). But the dispute must be genuine, and
thus "if the defendant's objections to the [presentence
investigation report] are merely rhetorical and unsupported by
countervailing proof, the district court is entitled to rely on the
facts in the [presentence investigation report]." Id.
Here, the District Court made factual determinations
based upon information in the presentence investigation report,4
4
The District Court could consider the first chemist's test
results for sentencing purposes even if those results were
inadmissible at trial. "At sentencing, the court 'may consider
relevant information without regard to its admissibility under the
rules of evidence applicable at trial, provided that the
information has sufficient indicia of reliability to support its
probable accuracy.'" Cintron-Echautegui, 604 F.3d at 6 (quoting
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which in turn reflected information from earlier forensic drug
testing by the crime lab. And Occhiuto did not offer any
countervailing proof to rebut the drug weights reported from that
testing.5 Occhiuto does note that the drug weights testified to at
trial differed from the drug weights reported in the earlier tests.
But the government's expert witness explained that, because the
first chemist who tested the drugs was unavailable at trial, the
government undertook re-testing of the drugs in evidence. This
second chemist then testified and explained that the testing
procedures used up some of the drugs, so that there was a lower
reserve weight at each subsequent test. At sentencing, the
government reminded the District Court of the chemist's trial
testimony, and the surveillance evidence corroborating the
controlled buys. In crediting this explanation for the variance in
United States v. Zapata, 589 F.3d 475, 485 (1st Cir. 2009)). Here,
the test results had sufficient indicia of reliability to support
their use. Testimony showed the results came from a credible
source, a forensic chemist with the federal Drug Enforcement
Administration, and was conducted at the federal Drug Enforcement
Administration's Northeast Laboratory. The second chemist
testified that the first chemist was unavailable to attest to the
earlier results only because he had retired over a year before
trial. Therefore, Occhiuto's contention that the District Court
could not consider the first chemist's test results is unavailing.
5
Occhiuto contests on appeal whether these drug laboratory
certificates were actually submitted as an exhibit at the
sentencing hearing. But regardless of whether these certificates
were so submitted, the information was encompassed within the
presentence report and Occhiuto presented no "countervailing proof"
to contradict the quantities provided therein. Cyr, 337 F.3d at
100.
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reported weights, the District Court did not clearly err in making
its factual finding. See Cintron-Echautegui, 604 F.3d at 6-7.
B.
Finally, Occhiuto challenges the substantive
reasonableness of his sentence. The District Court imposed a
sentence of 105 months, a term at the higher end of the applicable
Guidelines range. The substantive reasonableness of a sentence is
reviewed for abuse of discretion, considering the totality of the
circumstances. United States v. Gibbons, 553 F.3d 40, 47 (1st Cir.
2009).
Occhiuto argues that the District Court inadequately
considered his history of mental illness and previous brain injury
because the District Court did not mention these mitigating factors
at sentencing. But the District Court did state at the sentencing
hearing that it had read the materials submitted by the parties,
and Occhiuto's materials identified these same factors. The record
thus supports the conclusion that the District Court simply focused
on other considerations that it implicitly deemed more important,
including the defendant's history of violent behavior. See United
States v. Suarez-Gonzalez, 760 F.3d 96, 102 (1st Cir. 2014) ("[T]he
appellant's real complaint is not that the district court
overlooked or misapprehended relevant sentencing factors but,
rather, that the court gave more weight to factors that the
appellant regarded as unimportant and less weight to factors that
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the appellant regarded as salient. . . . [S]uch selective triage is
precisely the function that a sentencing court is expected to
perform.").
Occhiuto also argues that the District Court lengthened
his sentence in order to promote his "rehabilitation" in violation
of Tapia v. United States, 131 S. Ct. 2382 (2011). Tapia held that
the Sentencing Reform Act "prevents a sentencing court from
imposing or lengthening a prison term because the court thinks an
offender will benefit from a prison treatment program." Tapia, 131
S. Ct. at 2392. But the record does not show that the District
Court imposed the sentence -- or extended its length -- in order to
effect the defendant's rehabilitation. The District Court instead
repeatedly referred to the need to protect the public. See
Sentencing Tr. at 34-35 ("There are a couple of . . . statutory
factors that I think are particularly important here and I agree
with the government that the most important one is the need to
protect the public from future crimes of the defendant. . . . The
[defendant's] institutional history is remarkable. . . . So I think
incapacitation is apparently the predominant nonguideline
factor.").
And while the District Court did mention the "need for
the defendant to get the . . . services that can help him
eventually become a productive law-abiding citizen, including
educational, vocational, and perhaps mental health treatment
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options," the context shows that the District Court did not make
the reference in order to justify the sentence itself. In like
circumstances, we have held that "no Tapia error occurs unless
rehabilitative concerns are being relied upon either in deciding
whether to incarcerate or in deciding the length of the
incarcerative sentence to be imposed. Thus, the mere mention of
rehabilitative needs, without any indication that those needs
influenced the length of the sentence imposed, is not Tapia error."
United States v. Del Valle-Rodríguez, 761 F.3d 171, 175 (1st Cir.
2014). And so we find no such error here as well.
III.
For these reasons, we affirm Occhiuto's conviction and
sentence.
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