United States v. Omisore ( 1996 )

USCA1 Opinion

        May 30, 1996            [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



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        No. 95-2252





                                    UNITED STATES,



                                      Appellee,



                                          v.



                                   ADEDAPO OMISORE,



                                Defendant, Appellant.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                  [Hon. Joseph L. Tauro, Chief U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                          Boudin and Lynch, Circuit Judges.
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            Norman S. Zalkind and Zalkind, Rodriguez,  Lunt & Duncan on  brief
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        for appellant.





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                      Per  Curiam.   Defendant-appellant  Adedapo Omisore
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            appeals  from  the  district  court  judgment   revoking  his



            supervised release.  We affirm.



                      I.  Due Process
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                      Omisore argues that the district court violated due



            process by  failing to  make written findings  explaining its



            revocation  decision and  by  denying his  motion to  inspect



            certain probation records.  Neither argument is availing.



                      A.  Written Findings
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                      Omisore  contends that the district court's failure



            to express in writing "the evidence relied on and reasons for



            revoking   parole"   violated   the   minimum   due   process



            requirements established by Morrisey v. Brewer, 408 U.S. 471,
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            489 (1972).  Because Omisore did not seek a written statement



            from  the district court, we consider  his argument under the



            "plain error" standard.  See United States v. Whalen, No. 95-
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            1816, slip op. at 4 (1st Cir. April 25, 1996).



                      "Virtually every court to have considered the issue



            has held that 'oral findings, if recorded or transcribed, can



            satisfy  the requirements  of Morrissey  when those  findings
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            create a  record sufficiently complete to  advise the parties



            and  the reviewing court of the reasons for the revocation of



            supervised release and the evidence the decision maker relied



            upon.'" Whalen,  slip op. at 4  - 5 (quoting  United States v
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            Copeland,  20  F.3d  412, 414  (11th  Cir.  1994).   For  the
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            following   reasons,   we  conclude   that   the   record  is



            sufficiently complete to advise the parties and this court of



            the reasons for  the revocation and the  evidence relied upon



            by the district court.



                      It is  clear from the transcript  of the revocation



            hearing  that  the  court  viewed the  dispositive  issue  as



            whether or not Omisore's conduct on the evening of August 14,



            1995, violated  the  terms of  his supervised  release.   The



            government  presented  evidence  only concerning  the  August



            arrest and excluded  evidence on  the charge  of receiving  a



            stolen  vehicle.   When  the defense  attorney remarked  that



            there was no evidence that Omisore had passed a stolen credit



            card,  the court  responded,  "Well,  I  think I  have  heard



            plenty."    When the  defense attorney was  making his  final



            argument  at the close of the hearing, the court directed him



            to "[c]oncentrate on the credit card."



                      Within this  context,  the court's  stated  finding



            that  Omisore  had violated  the  conditions  of his  release



            contained  within it  an  implicit finding  that Omisore  had



            attempted  to  purchase  goods  with a  stolen  credit  card.



            Accordingly, although  it would  have been preferable  if the



            district court had more  clearly articulated its findings and



            reasons  for  revoking  Omisore's  supervised   release,  its



            failure to do so did not constitute plain error.











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                      B.  Denial of Motion to Inspect Probation Records
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                      Omisore argues  that  in denying  his  motion,  the



            district court violated his  due process right to "disclosure



            . .  . of evidence against him."  Morrissey, 408 U.S. at 489.
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            See  also Fed.  R.  Crim. P.  32.1(a)(2)(B).   The  probation
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            records were  not used as evidence  against Omisore, however.



            The  technical violations of failure  to timely report to the



            probation  officer  were  continued  by  the  district  court



            without  a  finding.     Moreover,  the  court  directed  the



            probation department  to supply  the dates of  contact, which



            were  recited  in  court.     The  evidence  against  Omisore



            consisted of testimony by witnesses at the revocation hearing



            regarding  Omisore's use  of  a  stolen  credit card.    That



            evidence was fully disclosed to Omisore.



                      Omisore   argues   that  the   testimony  regarding



            frequent meetings  between Omisore and members  of the FOCTF,



            despite denials that Omisore was being used  as an informant,



            "should  have   alerted  the  court  to  the  fact  that  the



            chronological entries, which  logged the probation  officer's



            supervision  of   Mr.  Omisore,   may  well   have  contained



            information which  corroborated Mr. Omisore's  contentions or



            impeached the  witnesses or  both."  Omisore  never expressly



            argued the purposes for which he sought the records, however.



            Under those circumstances, the district court did not  err in



            denying Omisore's  motion.







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                      II.  Merits of Revocation Decision
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                      "[O]n  appeal [from a  decision revoking supervised



            release], [this court] consider[s]  the evidence in the light



            most favorable to the government." United States v. Portalla,
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            985 F.2d 621, 622 (1st Cir. 1993).  Viewed in this light, and



            recognizing  "the  district  court's  broad  legal  power  to



            determine  witness credibility,"  id.,  the  record  contains
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            sufficient evidence to  meet the "preponderance of  evidence"



            standard.



                      Omisore   argues  that  "[n]othing  in  the  record



            establishes that  Mr. Omisore possessed or  actually used the



            stolen  credit  card."   The  record  contains the  following



            evidence that Omisore was the one who passed the stolen card.



            Ruth Corliss, the cashier, identified Omisore in court as the



            man  who  gave  her  the  card.    Although she  subsequently



            indicated  some slight uncertainty,  she never  confirmed the



            defense  attorney's  suggestion  that  another  man  was with



            Omisore and gave her  the card.   Reham Pasha Ahmad, a  store



            detective, testified that Omisore  identified himself as  the



            owner  of  the card  and gave  a  social security  number and



            birthdate in  an attempt  to prove  ownership.   The district



            court did  not clearly err in finding  that Omisore attempted



            to use a stolen  credit card, in violation of  the conditions















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            of his supervised release. There was  no abuse of discretion.







                      The  district  court  judgment  revoking  Omisore's



            supervised release is summarily affirmed.  See Loc. R. 27.1.
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