United States v. Emily Protsman

829 F.3d 978, 2016 U.S. App. LEXIS 13291, 2016 WL 3923889
CourtCourt of Appeals for the Eighth Circuit
DecidedJuly 21, 2016
Docket16-1432
StatusPublished
Cited by1 cases

This text of 829 F.3d 978 (United States v. Emily Protsman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Emily Protsman, 829 F.3d 978, 2016 U.S. App. LEXIS 13291, 2016 WL 3923889 (8th Cir. 2016).

Opinion

SHEPHERD, Circuit Judge.

Emily Protsman appeals the district court’s 1 revocation of her term of supervised release. She argues that the district court erred in finding hearsay evidence admissible under Federal Rule of Criminal Procedure 32.1(b)(2)(C), and in finding sufficient evidence to establish that she violated the terms of her supervised release. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I.

Protsman began a five-year term of supervised release in June 2014 after serving a prison sentence for committing disaster benefits fraud. In December 2015, the United States Probation Office filed a petition to revoke Protsman’s term of supervised release. A first and second supplemental petition followed. The second supplemental petition, filed in January 2016, alleged one Grade B violation, a new law violation of wire fraud, and four Grade C violations, including failure to truthfully answer inquiries and failure to notify the Probation Office of a change in employment. Protsman contested each allegation, and a hearing was held in January 2016.

At the hearing, Protsman’s probation officer, Chris Pauley, testified that the Iowa City Police Department informed him that the Sierra Vista, Arizona Police Department was investigating a potential wire fraud involving Protsman. Protsman’s counsel objected to the testimony as violating Protsman’s right to confront and cross-examine witnesses under Fed. R. Crim. P. 32.1, and the objection was taken under advisement. Pauley testified that Sunny Allred had contacted the Sierra Vista Police Department reporting that someone had fraudulently withdrawn money from her bank account with Navy Federal Credit Union. Investigation revealed that $4,000 from Allred’s account was transferred to Protsman’s bank account with Veridian Credit Union. Pauley testified that he questioned Protsman and Protsman claimed to have no knowledge of the $4,000 transfer. Pauley also stated that he had asked Protsman about a $1,300 check endorsed by Protsman and deposited into her account, but that she denied any knowledge of the deposit.

Next, Trina Becker, the manager of the Loss Prevention Department at Veridian Credit Union, testified. Protsman objected once at the beginning of Becker’s testimony, citing only Fed. R. Crim. P. 32.1. Becker went on to testify that Protsman had endorsed and deposited the $1,300 check into Protsman’s account at Veridian Credit Union. Further, Becker testified that the Veridian Credit Union had received a document from Navy Federal Credit Union stating that Navy Federal Credit Union believed a $4,000 transfer to Protsman’s account was fraudulent and requesting the money’s return. This form, along with a number of Veridian Credit Union documents, including documents showing that Protsman endorsed and deposited the $1,300 check, acknowledged the bank’s two-day hold policy, and made withdrawals after the two-day period, were entered into evidence, subject to Protsman’s objection to the Navy Federal Credit Union form. Becker also testified that Protsman made several ATM withdrawals from her account after the $1,300 deposit. Becker explained that she had questioned Protsman about the $4,000 transfer, and that Prots-man stated that it was for work she had *981 done with a corporate moving business, relocating employees. Becker recounted that when she asked Protsman if this work had been for Sunny Allred, the owner of the account from which the money was wired, Protsman replied that she was sure that she had in fact performed this work for Allred, but would need to find her documentation. She further stated that Protsman claimed to be the victim of hacking. Becker explained that another wire transfer had been made to Protsman’s account a few days later from a popcorn company, and that when Becker asked the owner of the popcorn company about the transfer, the owner explained that it was intended for a shipping company and not Protsman.

Additionally, Pauley testified that Prots-man’s account received deposits from Brown’s Floor Care in Iowa City, Iowa. The checks were legitimate and endorsed by Protsman. Protsman never reported to the probation office that she was employed by Brown’s Floor Care.

The district court concluded that Pau-ley’s testimony about the investigation and the Navy Federal Credit Union form was admissible. The district court reasoned that the individuals with whom Pauley spoke were in Arizona, so it would be impracticable to present live testimony from them and that the evidence presented was reliable. Regarding the Navy Federal Credit Union form, the district court reasoned that it was “routine in the industry,” relied on by the relevant credit unions, and Becker was available for cross-examination. The district court found that Prots-man’s counsel had only objected to one question asked of Becker, which was never answered, so Becker’s testimony was admissible as well.

Based on this record, the district court found by a preponderance of evidence that Protsman had committed the new law violation of wire fraud, failed to truthfully answer inquiries, and failed to notify her probation officer of an employment change. The violations yielded a guideline range of 18 to 24 months 'imprisonment. Based on these three violations and six prior violations, the district court sentenced Protsman to 18 months imprisonment, to be followed by a three-year term of supervised release.

II.

On appeal, Protsman argues that the district court erred in admitting Pauley’s testimony, the Navy Federal Credit Union form, and Becker’s testimony, in violation of Fed. R. Crim. P. 82.1(b)(2)(C), because Protsman was not given an opportunity to cross-examine the hearsay declarants. Protsman also alleges that the district court erred in finding sufficient evidence to establish the three violations.

A.

We review claimed violations of Fed. R. Crim. P. 32.1(b)(2)(C) for an abuse of discretion. United States v. Martin, 382 F.3d 840, 844 (8th Cir. 2004). In probation-revocation proceedings, the court “must balance the probationer’s right to confront a witness against the grounds asserted by the government for not requiring confrontation.” United States v. Bell, 785 F.2d 640, 642 (8th Cir. 1986). “First, the court should assess the explanation the government offers of why confrontation is undesirable or impractical.” Id. at 643. For instance, the court will consider the expense and difficulty incurred for the travel of out-of-state witnesses. Id. at 644; see United States v. Harrison, 809 F.3d 420, 423 (8th Cir.

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Bluebook (online)
829 F.3d 978, 2016 U.S. App. LEXIS 13291, 2016 WL 3923889, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-emily-protsman-ca8-2016.