United States v. Omisore ( 1996 )

May 30, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-2252
UNITED STATES,
Appellee,
v.
ADEDAPO OMISORE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, Chief U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Lynch, Circuit Judges.
Norman S. Zalkind and Zalkind, Rodriguez, Lunt & Duncan on brief
for appellant.
Per Curiam. Defendant-appellant Adedapo Omisore
appeals from the district court judgment revoking his
supervised release. We affirm.
I. Due Process
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
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,
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-
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
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
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
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.
See also Fed. R. Crim. P. 32.1(a)(2)(B). The probation
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
"[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,
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
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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