United States v. Tomas Rodriguez , 479 F. App'x 325 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-15434 ELEVENTH CIRCUIT
Non-Argument Calendar JULY 10, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-tp-20079-KMM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
TOMAS RODRIGUEZ,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 10, 2012)
Before EDMONDSON, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
Tomas Rodriguez appeals the revocation of his supervised release pursuant
to 18 U.S.C. § 3583(e). The district court found that Rodriguez violated the
conditions of his supervised release by (1) committing identity theft in violation of
18 U.S.C. § 1028; (2) failing to notify the probation office of a change in
employment which involved obtaining a second job at 1-800-WeAnswer; and (3)
associating with Riyadh Nagi, a convicted felon.1 A district court may revoke a
term of supervised release if the court “finds by a preponderance of the evidence
that the defendant violated a condition of supervised release.” 18 U.S.C.
§ 3583(e)(3).
We review for abuse of discretion a district court’s judgment revoking a
defendant’s supervised release. United States v. Velasquez Velasquez, 524 F.3d
1248, 1252 (11th Cir. 2008). We review a district court’s findings of fact for clear
error. United States v. Almand, 992 F.2d 316, 318 (11th Cir. 1993).
Rodriguez first argues that this reporting requirement was ambiguous and did not
clearly apply to “additional employment.” We disagree. Rodriguez was on notice
that, as a condition of supervised release, he had to report “any change in
1
Conditions of supervised release included the following: (1) “The defendant shall not
commit another federal, state or local crime”; (2) “the defendant shall notify the probation officer
at least ten days prior to any change in residence or employment”; and (3) “the defendant shall
not associate with any persons engaged in criminal activity and shall not associate with any
person convicted of a felony, unless granted permission to do so by the probation officer.” (Id. at
4).
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residence or employment.” A plain reading of this supervised release condition
suggests that “any change” is broad enough to apply to the circumstances in this
case, where a defendant obtains employment additional to any previously reported
employment.
Rodriguez also argues that the district court erred in considering hearsay
evidence as a basis for finding that he engaged in identity theft. At the revocation
hearing, it was alleged that Rodriguez used his new place of employment,
1-800-WeAnswer, to obtain the personal information of an elderly gentleman,
Bernard Greenberg. It was further alleged that Rodriguez and Nagi opened a QVC
Shopping Network (“QVC”) account using Greenberg’s name and social security
number, and made purchases under this account.
The government introduced documentation indicating that Greenberg’s
medical information, which included Greenberg’s name, address, phone number,
date of birth, and social security number, was accessed by Rodriguez on March 31,
2010. Nagi provided a written statement to law enforcement, in which he wrote
that Rodriguez had informed Nagi he was in the medical billing field and had
access to personal information, that Rodriguez provided that information, and that
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Nagi and Rodriguez filled out an application for a QVC card.2 The defense
objected to the introduction of this statement on hearsay grounds, and because it
was not “sworn,” but the magistrate judge overruled the objection.
Finally, Michael Kennedy, a detective with the Broward County Sheriff's
Office, testified at the hearing that he had conducted surveillance on Nagi at a
Dunkin’ Donuts on June 28, 2010, and that Rodriguez was present with Nagi at
the Dunkin’ Donuts. During a search of Nagi’s garbage on June 24, 2010,
Kennedy found several QVC packing slips Greenberg’s name. Kennedy contacted
Greenberg who told Kennedy that he had not ordered any items from QVC.
Greenberg later received a bill from QVC, which was sent to his residence.
The magistrate judge found by a preponderance of the evidence that
Rodriguez had committed identity theft, in violation of 18 U.S.C. § 1028(a)(7),
based on the following circumstantial evidence: (1) Rodriguez accessed
Greenberg’s information; (2) a QVC account was opened in Greenberg’s name;
(3) someone made unauthorized purchases on the QVC card; (4) QVC packaging
materials in Greenberg’s name were found in Nagi’s trash during a “trash pull”;
and (5) Rodriguez and Nagi were seen four days after the trash pull at a Dunkin’
2
Nagi later pled nolo contendere to the identity theft charge in his own supervised release
revocation proceedings.
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Donuts on Nagi’s laptop computer.
Although the Federal Rules of Evidence do not apply in the context of a
supervised release revocation hearing, hearsay statements must be reliable. In
deciding whether to admit hearsay testimony of an absent witness, the district
court must (1) make findings that the hearsay was reliable; and (2) “balance the
defendant’s right to confront adverse witnesses against the grounds asserted by the
government for denying confrontation.” United States v. Frazier, 26 F.3d 110,
114 (11th Cir. 1994). Rodriguez argues that the magistrate erred by relying on
Nagi’s hearsay statements in finding that Rodriguez committed identity theft
because these statements were hearsay and Rodriguez was not given an
opportunity to confront Nagi and cross-examine him. Indeed, it was error for the
magistrate to fail to make findings as to the reliability of the admitted hearsay or to
conduct the Frazier balancing test. However, such error was harmless because
other, properly considered circumstantial evidence was sufficient to support the
court’s conclusion that Rodriguez committed the crime of identity theft while on
supervised release by a preponderance of the evidence. Further, we hold that the
court properly found that Rodriguez was required, and failed, to report his
additional employment, and that he was associating with a convicted felon in
violation of his supervised release. Accordingly, the district court did not abuse
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its discretion by revoking Rodriguez’s supervised release.
AFFIRMED.
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