Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 16-1884
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE DEIDA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Thompson, Stahl, and Kayatta,
Circuit Judges.
Bjorn Lange, Assistant Federal Public Defender, for
appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
Emily Gray Rice, United States Attorney, was on brief, for
appellee.
March 15, 2017
STAHL, Circuit Judge. Jorge Deida claims that the
district court erroneously permitted the government to present
hearsay and prior bad act testimony at his supervised release
revocation hearing. In light of this testimony, the district court
determined that Deida had violated the conditions of his supervised
release, revoked that release, and sentenced Deida to fourteen
months' imprisonment followed by twenty-two months of supervised
release. For the following reasons, we affirm.
I.
On June 12, 2013, Deida began a five-year term of
supervised release after serving a 126-month prison sentence
relating to a series of controlled substance offenses.1 On March
4, 2016 and April 20, 2016, Deida's probation officer filed
successive petitions in the United States District Court for the
District of New Hampshire alleging that Deida had assaulted his
girlfriend, Jennifer Vanslette, on two separate occasions. The
petition specifically alleged that Deida had repeatedly struck
Vanslette in the face during an argument on January 12, 2016, and
then forcefully wrapped his hands around her neck in the midst of
another altercation on March 3, 2016. Deida, however, was never
charged for the alleged January 12th incident. The government
1 Deida served only ninety-eight of the 126 months before
being released.
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dismissed the March 3rd allegation prior to Deida's revocation
hearing after he was found not guilty of that assault in a parallel
state court proceeding.
Two witnesses testified at Deida's hearing, Vanslette
and her family counselor, Rose Brockstedt.2 Vanslette first
testified that she and Deida lived together in his apartment at
the time of the January 12th assault. As they were getting ready
for bed that night, Vanslette asked Deida if she could use their
van the following day to attend a family counseling session with
her daughter, who at the time lived at an Easter Seals residential
treatment facility in Manchester, New Hampshire. Deida, she said,
took issue with her request, "got in [her] face," and began to
repeatedly punch her. Vanslette also said that she did not call
the police after the incident because Deida had threatened to kill
her if she did. The next day, Vanslette spoke to Brockstedt during
a scheduling call, and told her about the encounter.
Also, in her testimony about the March 3rd incident,
Vanslette, over Deida's objection, claimed that he had "put his
arms around [her] throat" and threatened to "make [her] daughter
motherless."3
2 Because Deida chose not to take the stand at his revocation
hearing, the evidence presented to the district court consisted
solely of Vanslette's and Brockstedt's testimony.
3 On cross-examination, Deida's counsel asked Vanslette a
series of questions suggesting that, in March 2016, she was angry
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Brockstedt took the stand next. She verified that
Vanslette called her the day after the alleged January 12th assault
to cancel the family counseling session because Deida had "beaten
[her] up." Vanslette cried over the phone, and told Brockstedt
that "her eye was all bruised and her lip was swollen." Brockstedt
also mentioned that Vanslette's face remained bruised when she
next saw Vanslette nearly two weeks later.
Brockstedt described what she knew about the March 3rd
incident as well. She testified that on that date, Vanslette sent
her a text message that read "help." After receiving the text
message, Brockstedt called Vanslette, who informed Brockstedt that
Deida had "beat[] her up" and that "she was trying to barricade
herself in her room." Brockstedt also claimed that she could hear
Deida in the background of the call saying that he was going to
leave Vanslette's daughter without a mom.4
Based on the evidence presented, the district court
concluded that the government had proven by a preponderance of the
evidence that Deida had committed the misdemeanor offense of simple
domestic assault during the January 12th altercation. See N.H.
with Deida because she believed he was cheating on her with another
woman.
4 On cross-examination, Brockstedt acknowledged that when she
had seen Vanslette and Deida together in the time between the
alleged January and March incidents, their behavior was
"[c]ordial."
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Rev. Stat. Ann. § 631:2-b(I)(a). The court then revoked Deida's
supervised release and sentenced him to fourteen months'
imprisonment, to be followed by a term of twenty-two months of
supervised release.
II.
On appeal, Deida makes two challenges to the district
court's revocation of his supervised release. First, Deida argues
that the district court should have excluded Vanslette's and
Brockstedt's testimony detailing their telephone conversation
about the alleged January 12th assault. Second, he argues that
the district court erred in admitting testimony from Vanslette and
Brockstedt that, on March 3, 2016, Deida assaulted Vanslette again,
choking her and threatening her life.
This court reviews a district court's decision to admit
or exclude evidence at a revocation hearing for abuse of
discretion. See United States v. Rondeau, 430 F.3d 44, 48 (1st
Cir. 2005); United States v. Taveras, 380 F.3d 532, 536 (1st Cir.
2004). Given the nature of the proceedings below, we conclude
that the district court did not abuse its discretion by admitting
both sets of testimony. See Morrissey v. Brewer, 408 U.S. 471,
489 (1972) (stating that parole revocation proceedings "should be
flexible enough to consider evidence including letters,
affidavits, and other material that would not be admissible in an
adversary criminal trial").
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A. The Alleged Telephone Conversation between Vanslette
and Brockstedt
Deida first argues that the district court should have
excluded all testimony regarding Vanslette and Brockstedt's
January 13th telephone conversation because it was insufficiently
reliable. Though the evidence presented in revocation proceedings
need not be admissible under the Federal Rules of Evidence,
U.S.S.G. § 6A1.3(a); Fed. R. Evid. 1101(d)(3), "evidence that does
not satisfy those Rules must nonetheless be reliable," United
States v. Portalla, 985 F.2d 621, 622 (1st Cir. 1993). Here, Deida
claims that Vanslette's and Brockstedt's testimony is unreliable
because it consisted of unsworn verbal allegations made the day
after the alleged assault which, in most judicial proceedings,
would not be admissible under any hearsay exception. While
acknowledging that hearsay evidence is often permitted in
revocation proceedings, United States v. Marino, 833 F.3d 1, 5
(1st Cir. 2016), Deida claims that it remains relevant whether or
not a statement falls outside a "firmly rooted hearsay exception,"
see Idaho v. Wright, 497 U.S. 805, 815 (1990).
To be sure, a statement's status as hearsay or non-
hearsay is an indicator of that statement's reliability. See
Taveras, 380 F.3d at 537. Deida overlooks, however, the many other
indicia of reliability present here. Even if Vanslette's and
Brockstedt's testimony does not qualify under any hearsay
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exception, the declarant, Vanslette, took the stand, adopted the
statement as her own, and made herself available for cross-
examination. Deida stresses that Vanslette was "angry and
suspicious" that he was seeing another woman and, therefore, that
she had a personal motive to fabricate her statements to
Brockstedt, a theory that Deida pursued on cross-examination. See
Davis v. Alaska, 415 U.S. 308, 316 (1974) ("Cross-examination is
the principal means by which the believability of a witness and
the truth of his testimony are tested."). Moreover, the government
appropriately notes that Brockstedt testified that she saw
Vanslette about two weeks after the alleged January 12th assault,
and stated that Vanslette had injuries to her face consistent with
Vanslette and Brockstedt's January 13th conversation. See United
States v. Martin, 382 F.3d 840, 846 (8th Cir. 2004) (noting that
the government demonstrated the reliability of declarant's
statements regarding a sexual assault, in part because other
witnesses said they observed injuries consistent with the
declarant's description of the sexual assault). Therefore, the
district court did not abuse its discretion by admitting testimony
about Vanslette's telephone conversation with Brockstedt in the
aftermath of the alleged January 12th assault.
B. The Alleged March 3rd Assault
Deida's second argument is that Vanslette and Brockstedt
should not have been permitted to testify as to the alleged assault
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which occurred at Vanslette and Deida's home on March 3, 2016.
While this incident was initially presented by the government in
its April 20, 2016 revocation petition as Violation 2, the
government dropped this allegation from the petition after Deida
had been found not guilty of that assault in parallel state court
proceedings. Because he had been acquitted of that charge, and
because the government did not rely upon it in arguing that he had
violated the terms of his release, Deida argues that the district
court's decision to admit Vanslette's and Brockstedt's testimony
regarding the alleged March 3rd incident amounted to "prior bad
acts" evidence in violation of Federal Rule of Evidence 404(b).
We disagree, for two reasons. First, because the
district court cited only the January simple assault as the basis
for finding Deida in violation of the terms of his release, and
because there was ample evidence supporting Vanslette's version of
those events, we need not decide whether the district court abused
its discretion in admitting testimony pertaining to the March 3rd
incident because any error would be harmless.
Second, and for the sake of completeness, we note that
in addition to the previously identified problem of the Federal
Rules of Evidence not applying, many courts have permitted the
introduction of similar evidence in the context of domestic
violence to show intent, motive, and the general nature of the
relationship. See, e.g., State v. Brown, 900 A.2d 1155, 1161 (R.I.
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2006) (stating that admission of uncharged instances of assault
was permissible to show "an escalating pattern of domestic violence
tended to establish defendant's intent"); State v. Williams, 9
A.3d 315, 320 (Vt. 2010) (holding prior instances of domestic
assault admissible "to show the nature of the parties' relationship
and explain what might otherwise appear to be incongruous behavior
to a jury, such as remaining with an abusive partner and delaying
a report of abuse"); see also United States v. Faulls, 821 F.3d
502, 508-09 (4th Cir. 2016) (reasoning that admission of prior
acts of domestic violence was appropriate because evidence was
relevant to motive and nature of relationship); Albrecht v. Horn,
485 F.3d 103, 127-28 (3d Cir. 2007) (stating that evidence of past
instances of domestic abuse was admitted for the legitimate purpose
of showing the defendant's motive). In other words, because the
evidence in this case was not admitted "to prove the character of
a person in order to show action in conformity therewith," Fed. R.
Evid. 404(b), but was admitted to prove motive, intent, and the
nature of the relationship between Deida and Vanslette, there would
have been no violation of the Federal Rules even if they did apply.
III.
For these reasons, the district court's judgment is
AFFIRMED.
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