USCA11 Case: 22-13918 Document: 33-1 Date Filed: 08/04/2023 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13918
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD DOUGLAS TRAVIS,
Defendant- Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:12-cr-00055-LC-1
____________________
USCA11 Case: 22-13918 Document: 33-1 Date Filed: 08/04/2023 Page: 2 of 6
2 Opinion of the Court 22-13918
Before JORDAN, BRANCH, and TJOFLAT, Circuit Judges.
PER CURIAM:
Richard Travis appeals the District Court for the Northern
District of Florida’s order revoking his supervised release and im-
posing a 21-month sentence, arguing that the Court failed to con-
duct the proper balancing test under United States v. Frazier,
26 F.3d
110 (11th Cir. 1994), before admitting hearsay evidence during his
revocation hearing. While the District Court did err in failing to
perform a Frazier test, Travis has not shown that this error was
harmful. Therefore, we affirm.
I.
A federal grand jury in the Northern District of Florida in-
dicted Richard Travis on one count of possessing a firearm as a
felon, in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2). Travis
initially pleaded not guilty, but later pleaded guilty to the charge.
The District Court sentenced him to 96 months’ imprisonment fol-
lowed by three years’ supervised release. Travis appealed, and this
Court affirmed his sentence. See United States v. Travis,
747 F.3d
1312 (11th Cir. 2014) (per curiam). Travis’s supervised release term
began on August 20, 2021.
In May 2022, United States Probation Officer Elizabeth Lane
petitioned for a warrant for Travis, alleging that he had violated six
conditions of his supervised release: (1) changing residence without
informing the Probation Officer; (2) being unemployed without ex-
cuse; (3) failing to attend mental health counseling; (4) committing
USCA11 Case: 22-13918 Document: 33-1 Date Filed: 08/04/2023 Page: 3 of 6
22-13918 Opinion of the Court 3
criminal mischief and burglary; (5) committing criminal mischief,
burglary, and false imprisonment; and (6) committing sexual bat-
tery on an underage victim.
At the revocation hearing, Travis, through counsel, admit-
ted the first four violations of his supervised release; he contested
violations five and six because those charges were dismissed by the
state court. The Government introduced video evidence of police
interviewing the alleged minor victim from violation six, as well as
social media messages between Travis and the alleged victim, but
the Government did not present the victim as a witness. Travis
objected to the introduction of the video and the social media con-
versation on confrontation grounds because he did not have the
opportunity to cross-examine the victim.
Travis argued that United States v. Frazier,
26 F.3d 110 (11th
Cir. 1994), required the District Court to conduct a balancing test
to decide if the hearsay evidence should be admitted. The Govern-
ment argued that the hearsay evidence was reliable because other
evidence in the record can corroborate the statement. The Gov-
ernment also stated that they tried to get the victim to testify, but
suspected that she did not show up because there was a warrant for
her arrest. The District Court overruled Travis’s objection without
commenting on Frazier, conducting a balancing test, or giving any
kind of reasoning.
The District Court determined that, in addition to the four
violations Travis admitted to, he committed violations five and six.
Violation six was a Grade B violation, and when combined with
USCA11 Case: 22-13918 Document: 33-1 Date Filed: 08/04/2023 Page: 4 of 6
4 Opinion of the Court 22-13918
Travis’s criminal history category of VI, the recommended guide-
line range was 21 to 24 months. The District Court said it had con-
sidered the
18 U.S.C. § 3553(a) factors, the applicable guideline rec-
ommendations, and all the evidence, statements, and information
in the violation report, and that it was sentencing Travis to 21
months’ imprisonment. Neither Travis nor the Government ob-
jected.
Travis timely appealed, arguing that the District Court vio-
lated his due process rights when it admitted hearsay evidence
without conducting the balancing test required by Frazier. With-
out that hearsay evidence, according to Travis, his violation would
only have been a Grade C violation, with a lower guideline sen-
tence range and a resulting lower sentence.
II.
We review a district court’s revocation of supervised release
for abuse of discretion.
Id. A district court may revoke a term of
supervised release if it finds by a preponderance of the evidence
that the defendant violated a condition of supervised release.
18
U.S.C. § 3583(e)(3).
The Federal Rules of Evidence and the Sixth Amendment do
not apply in revocation hearings. Frazier,
26 F.3d at 114; see also
United States v. Reese,
775 F.3d 1327, 1329 (11th Cir. 2015). How-
ever, hearsay is not automatically admissible, because minimal due
process requirements still apply. Frazier,
26 F.3d at 114. This in-
cludes the right to confront and cross-examine adverse witnesses,
unless the factfinder finds good cause for not requiring it.
Id. A
USCA11 Case: 22-13918 Document: 33-1 Date Filed: 08/04/2023 Page: 5 of 6
22-13918 Opinion of the Court 5
district court must balance the defendant’s right to confrontation
against the government’s grounds for denying it and must ensure
the hearsay statement is reliable.
Id. In Frazier, we held that the
district court erred because it “made no finding that the hearsay
was reliable, nor did it weigh Frazier’s right of confrontation
against the Government’s reasons for not producing the witness.”
Id.
If hearsay evidence is admitted in violation of due process,
though, the defendant must show that the error was harmful. See
id. This requires showing that the challenged evidence is materi-
ally false or unreliable and that it actually served as the basis for the
sentence. United States v. Taylor,
931 F.2d 842, 847 (11th Cir. 1991).
Here, the District Court erred by admitting the hearsay evi-
dence without conducting an explicit Frazier balancing test. See Fra-
zier,
26 F.3d at 114. However, Travis has not shown harmful error.
He made no such showing before the District Court and has not
demonstrated on appeal that the challenged evidence is materially
false or unreliable. See Taylor,
931 F.2d at 847.
The Government presented significant evidence that Travis
violated the terms of his supervised release. It presented Facebook
logs of Travis saying, “I’m ready to give you this dick again,” im-
plying that he had previously had sex with the alleged victim. The
Government corroborated this with testimony that the account be-
longed to Travis, including his probation officer verifying that the
Facebook logs showed a conversation with Travis’s ex-girlfriend
USCA11 Case: 22-13918 Document: 33-1 Date Filed: 08/04/2023 Page: 6 of 6
6 Opinion of the Court 22-13918
and that she recognized the account’s profile picture as being
Travis. Therefore, any error was harmless.
AFFIRMED.
