United States v. Pittarelli , 205 F. App'x 188 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4486
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NICHOLAS PITTARELLI,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon, District
Judge. (3:04-cr-00039-001)
Submitted: December 4, 2006 Decided: December 21, 2006
Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY,
Charlottesville, Virginia, for Appellant. John L. Brownlee, United
States Attorney, Jean B. Hudson, Assistant United States Attorney,
Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nicholas Pittarelli appeals the district court’s order
revoking his supervised release. Pittarelli contends the district
court erred in finding that he violated the conditions of his
supervised release and that the court’s ex parte meeting with the
probation officer violated his constitutional rights. We affirm.
We review the district court’s decision to revoke a
defendant’s supervised release for abuse of discretion. 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 by a preponderance of the evidence. 18 U.S.C. § 3583(e)(3)
(2000). After reviewing the materials in the joint appendix, we
conclude the district court did not abuse its discretion in finding
by a preponderance of the evidence that Pittarelli violated the
terms of his supervised release. It is evident that the district
court weighed the contradictory testimony and decided to credit the
probation officer’s version over Pittarelli’s. It is not the
province of this court to second-guess the credibility
determinations of the factfinder. United States v. Saunders, 886
F.2d 56, 60 (4th Cir. 1989).
Pittarelli also contends that the district court’s ex
parte meeting with the probation officer prior to the revocation
hearing violated his constitutional rights. The materials in the
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joint appendix do not reflect that such a meeting occurred, but the
Government assumes for the sake of argument that one took place.
Because Pittarelli raises this issue for the first time
on appeal, review is for plain error. See United States v. White,
405 F.3d 208, 215 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005).
To establish plain error, Pittarelli must show that an error
occurred, that the error was plain, and that the error affected his
substantial rights. Id. A probation officer is “a neutral,
information-gathering agent of the court, not an agent of the
prosecution.” United States v. Johnson, 935 F.2d 47, 50 (4th Cir.
1991) (approving pre-sentence, ex parte meetings and describing
these communications as “nonadversarial”). The probation officer’s
activities here were akin to preparing a presentence report and
discussing the report with the court prior to initial sentencing,
a practice we approved in Johnson. In any event, because
Pittarelli is unable to show any bias or prejudice resulting from
the communication, he cannot show plain error.
Accordingly, we deny Pittarelli’s motion to supplement
the reply brief, deny his motion to proceed pro se, and affirm the
district court’s revocation of his supervised release. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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