United States v. Louis Allen

523 F. App'x 542
Court of Appeals for the Eleventh Circuit·Decided July 9, 2013·No. 12-15793·Unpublished

Opinion

PER CURIAM:

Louis Allen appeals the revocation of his supervised release, imposed for committing theft by deception. On appeal, Allen argues that the district court erred in admitting two pieces of hearsay evidence, a video and an affidavit, at his revocation hearing. He also argues that the district court clearly erred in crediting witness Michael Johnson’s testimony over his own testimony. Finally, he argues that the district court abused its discretion in concluding that he violated his supervised release by committing theft by deception. After thorough review, we affirm.

I. Admission of Video and Affidavit

Whether the Federal Rules of Evidence apply in a supervised release revocation hearing is a question of law, and as such is subject to de novo review. United States v. Frazier, 26 F.3d 110, 112 (11th Cir.1994). Although we have held that the Federal Rules of Evidence do not apply in supervised release revocation hearings, “the admissibility of hearsay is not automatic.” Id. at 114. Defendants in probation and supervised release revocation proceedings are entitled to “certain minimal due process requirements,” including the right to confront and cross-examine witnesses. Id. In determining whether to admit hearsay testimony, the district court “must balance the defendant’s right to confront adverse witnesses against the grounds asserted by the government for denying confrontation.” Id. In addition, the hearsay statement must be reliable. Id.

A court’s failure to perform this balancing test may be harmless if the evidence overwhelmingly demonstrates that the defendant violated the terms of his supervised release. Id. If admission of hearsay evidence violates due process, “the defendant bears the burden of showing that the court explicitly relied on the information;” the defendant must show “(1) that the challenged evidence is materially false or unreliable, and (2) that it actually served as the basis for the sentence.” See United States v. Taylor, 931 F.2d 842, 847 (11th Cir.1991) (quotation omitted) (discussing the admissibility of hearsay testimony in the context of a probation revocation hearing); see also Frazier, 26 F.3d at 113 (holding that there is no significant conceptual difference between the revocation of probation or parole and the revocation of supervised release).

Here, even assuming arguendo that the district court erred by introducing the cell phone video (Government Exhibit 4) and the affidavit (Government Exhibit 5) into evidence without explicitly discussing the balancing test from Frazier, the error was harmless because Allen failed to show that the challenged evidence is materially false or unreliable and that it actually served as the basis for his sentence. Allen failed to meet his burden of showing that the court “explicitly relied on the information.” See Taylor, 931 F.2d at 847. First, with regard to the cell phone video, the district court described the video as “two gentlemen who appeared to be in a dining area of a home and one person appearing to sign some document or sign something, to affix a signature to a piece of paper.” The district court stated that it didn’t even know what the video was supposed to prove or verify. Therefore, even though the district court stated that it had considered all of the evidence in the record, nothing in the record explicitly indicates that the district court actually relied on this video that he had “no clue what it was supposed to prove or verify.” Additionally, with regard to both the video and *544 the affidavit, Allen has not met his burden of showing that this evidence is materially false or unreliable. The video and the affidavit were both consistent with testimony that the magistrate judge had found credible, and, as we hold infra, the magistrate judge did not clearly err by crediting Johnson’s account over Allen’s account. See United States v. Reme, 738 F.2d 1156, 1168 (11th Cir.1984) (“Whether the hearsay statement is corroborated or contradicted by other evidence in the record is also relevant in determining reliability.”). Allen also did not present any evidence before the district court to meet his burden of showing that the affidavit, which directly corroborates Johnson’s testimony before the magistrate judge, is false or unreliable. Accordingly, even assuming arguendo that the district court erred, we readily conclude that any error was harmless.

B. Credibility of Witnesses

The district court’s findings of fact at a revocation hearing are reviewed for clear error. United States v. Almand, 992 F.2d 316, 318 (11th Cir.1993). “The credibility of a witness is in the province of the factfinder and this court will not ordinarily review the factfinder’s determination of credibility.” United States v. Copeland, 20 F.3d 412, 413 (11th Cir.1994); see also United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir.2002) (holding, in the context of a criminal trial, that a court’s choice of who to believe is conclusive unless the judge credits exceedingly improbable testimony). We defer to the lower court’s credibility determinations unless the court’s “understanding of the facts appears to be ‘unbelievable.’ ” Ramirez-Chilel, 289 F.3d at 749 (citing United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir.1985)).

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United States v. Louis Allen, 523 F. App'x 542 (11th Cir. 2013).

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