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.

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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-ofcourt 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 outof-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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