United States v. Eric Zuspan , 636 F. App'x 150 ( 2016 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 15-4294
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    ERIC WAYNE ZUSPAN,
    Defendant - Appellant.
    Appeal from the United States District Court for the Northern
    District of West Virginia, at Clarksburg.    Irene M. Keeley,
    District Judge. (1:09-cr-00081-IMK-JSK-1)
    Submitted:   November 30, 2015            Decided:   January 6, 2016
    Before NIEMEYER, SHEDD, and HARRIS, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Tracy Weese, Shepherdstown, West Virginia, for Appellant.
    William J. Ihlenfeld, II, United States Attorney, Andrew R.
    Cogar, Assistant United States Attorney, Clarksburg, West
    Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Eric       Wayne    Zuspan       appeals       the    district        court’s       judgment
    revoking his supervised release.                          On appeal, he contends that
    the    district       court          abused   its      discretion         when    it       admitted
    hearsay evidence at the revocation hearing and in revoking his
    supervised release.              We affirm.
    At     a     revocation         hearing,       a     defendant        is   entitled       to
    “question any adverse witness unless the court determines that
    the interest of justice does not require the witness to appear.”
    Fed.   R.     Crim.       P.    32.1(b)(2)(C).              “[T]he   district         court    must
    balance       the     releasee’s           interest       in    confronting           an    adverse
    witness       against          any    proffered       good      cause     for     denying      such
    confrontation.”                United States v. Doswell, 
    670 F.3d 526
    , 530
    (4th Cir. 2012).                “[T]he reliability of the [hearsay] evidence
    is a critical factor in the balancing test under Rule 32.1.”
    United States v. Ferguson, 
    752 F.3d 613
    , 617 (4th Cir. 2014)
    (internal         quotation          marks    omitted).           However,        “unless       the
    government makes a showing of good cause for why the relevant
    witness      is     unavailable,           hearsay     evidence         is   inadmissible       at
    revocation hearings.”                
    Id. The decision
             to    admit   hearsay          evidence      at   a    revocation
    hearing is reviewed for an abuse of discretion.                                   
    Doswell, 670 F.3d at 529
    .          Evidentiary rulings are subject to harmless error
    review.       United States v. Johnson, 
    617 F.3d 286
    , 292 (4th Cir.
    2
    2010).     In reviewing the admission of hearsay in a revocation
    hearing,   “the     proper    harmlessness         test       must    ensure       that    the
    error had no substantial and injurious effect or influence on
    the   outcome,      not   whether     the       error    was     harmless         beyond    a
    reasonable     doubt.”        
    Ferguson, 752 F.3d at 618
        (internal
    quotation marks omitted).
    Zuspan   first      argues    that    the       district       court       abused    its
    discretion when it admitted the recorded interview of a witness,
    contending the Government did not offer good cause for failing
    to present the witness to testify.                    We conclude that any error
    did not have a substantial and injurious effect on the outcome.
    The district court did not rely on the witness’ statements in
    determining      that     Zuspan     violated           the     conditions          of     his
    supervised     release.            Moreover,       because           we    conclude        the
    Government’s       evidence   was     sufficient          —    without       the    hearsay
    statements — to determine that Zuspan violated the conditions of
    his supervised release by participating in a scheme to defraud a
    retail store, this claim warrants no relief.                         
    Ferguson, 752 F.3d at 617
    .
    Zuspan next challenges the district court’s admission of
    testimony about the results of a store’s internal investigation
    —specifically, the finding that items were not scanned at the
    register and the total cost of the unscanned items.                                 Because
    Zuspan    failed    to    object    below,       we     review       for    plain    error.
    3
    United States v. Obey, 
    790 F.3d 545
    , 547 (4th Cir. 2015).                      To
    establish plain error, Zuspan must demonstrate “that an error
    occurred, that it was plain and that it affected his substantial
    rights.”     
    Id. We have
    discretion to “correct the error only if
    it   seriously       affect[s]      the   fairness,    integrity     or   public
    reputation of judicial proceedings.”                 
    Id. (internal quotation
    marks omitted).
    We conclude that any error in the admission of the store’s
    findings did not affect Zuspan’s substantial rights.                  First, the
    amount     of   loss       was   established    by     Zuspan’s     payment    of
    restitution     to   the    state    court.    Moreover,     the    Government’s
    evidence, including videos of the transactions shown during the
    hearing, established that items were not being scanned into the
    register.
    Zuspan next contends that the district court abused its
    discretion      in   revoking       his   supervised   release      because   the
    Government’s evidence failed to establish he had the specific
    intent to defraud.         We review for abuse of discretion a district
    court’s    judgment     revoking      supervised   release    but    review   its
    factual findings for clear error.             United States v. Padgett, 
    788 F.3d 370
    , 373 (4th Cir. 2015), cert. denied, __ S. Ct. __, 
    2015 WL 5937870
    (U.S. Nov. 9, 2015) (No. 15-6499); United States v.
    Copley, 
    978 F.2d 829
    , 831 (4th Cir. 1992).                The district court
    need only find a violation of a condition of supervised release
    4
    by a preponderance of the evidence.                  18 U.S.C. § 3583(e)(3)
    (2012); 
    Copley, 978 F.2d at 831
    .                “[A] preponderance of the
    evidence . . . simply requires the trier of fact to believe that
    the existence of a fact is more probable than its nonexistence.”
    United States v. Manigan, 
    592 F.3d 621
    , 631 (4th Cir. 2010)
    (internal quotation marks omitted).
    We conclude the district court did not clearly err when it
    found    that    Zuspan    intended     to   defraud    the   store.      Zuspan
    admitted that he knew he was getting a break and that the clerk
    was not scanning all of the items he purchased.                  The video and
    store records show that Zuspan purchased cigarettes, yet only
    paid using an Electronic Benefits Transfer (EBT) card — further
    demonstrating that Zuspan was aware he was not being charged for
    items because EBT cards cannot be used to pay for tobacco.                   See
    7 U.S.C.A. §§ 2012(d)(1), (k)(1), 2016(b) (West 2010 & Supp.
    2015).     Moreover, as the Government argued below, the number and
    circumstances      of   the   transactions     is    circumstantial     evidence
    that Zuspan intended to defraud the store.
    Finally, Zuspan asserts that it was fundamentally unfair to
    revoke his supervised release because he detrimentally relied
    upon     his    probation        officer’s   promise      that    his     federal
    supervision would not be revoked in forgoing a challenge to the
    state charges and instead paying restitution to resolve those
    charges.        However,    as    the   Government     argues,   the    probation
    5
    officer could not promise that Zuspan’s supervised release would
    not be revoked after the state charges were dismissed because
    only   the   district         court   had   authority      to    revoke   supervised
    release    and   retained       discretion      as   to   whether    to   accept    or
    reject the probation officer’s recommended disposition.                         See 18
    U.S.C. § 3583(e)(3).
    Accordingly, we affirm the district court’s judgment.                        We
    dispense     with      oral     argument    because       the    facts    and    legal
    contentions      are   adequately      presented     in    the    materials     before
    this court and argument would not aid the decisional process.
    AFFIRMED
    6
    

Document Info

Docket Number: 15-4294

Citation Numbers: 636 F. App'x 150

Filed Date: 1/6/2016

Precedential Status: Non-Precedential

Modified Date: 1/13/2023