United States v. Richard Costanzo ( 2023 )

USCA4 Appeal: 22-4640 Doc: 31 Filed: 12/28/2023 Pg: 1 of 4
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-4640
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD ALAN COSTANZO,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at Beaufort.
Bruce H. Hendricks, District Judge. (9:19-cr-00057-BHH-1)
Submitted: July 19, 2023 Decided: December 28, 2023
Before NIEMEYER and RUSHING, Circuit Judges, and FLOYD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Emily Deck Harrill, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Adair F.
Boroughs, United States Attorney, J. Carra Henderson, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Richard Alan Costanzo pled guilty to possession of a firearm as a convicted felon
and was sentenced to five years’ probation. While serving his probation, Costanzo was
charged in state court with criminal domestic violence (“CDV”), second degree. The
district court revoked Costanzo’s supervised release and sentenced him to 37 months of
imprisonment to be followed by 36 months of supervised release. On appeal, Costanzo
challenges the district court’s admission of hearsay evidence at the revocation hearing. We
affirm.
“We review a district court’s evidentiary ruling in a revocation hearing for abuse of
discretion.” United States v. Ferguson, 752 F.3d 613, 616 (4th Cir. 2014). Pursuant to
Fed. R. Crim. P. 32.1(b)(2)(C), a defendant in a revocation proceeding is entitled to an
opportunity to question adverse witnesses unless the court determines that the interest of
justice does not require the witness to appear. Id. “Rule 32.1(b)(2)(C) specifically requires
that, prior to admitting hearsay evidence in a revocation hearing, the 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). While reliability is no longer the test for admissibility, it remains “a critical
factor in the balancing test under Rule 32.1.” Id. at 531. “If hearsay evidence is reliable
and the [g]overnment has offered a satisfactory explanation for not producing the adverse
witness, the hearsay evidence will likely be admissible under Rule 32.1.” Id.We have thoroughly reviewed the record and conclude that the district court
appropriately considered Costanzo’s confrontation rights and applied the balancing test of
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Rule 32.1. The district court did not abuse its discretion in determining that the good cause
proffered by the Government for the victim’s unavailability outweighed Costanzo’s
confrontation interests. See Ferguson, 752 F.3d at 616. As the Government explained, it
made numerous attempts to contact the victim in the months prior to the hearing and
worked with the victim advocate for local law enforcement to try to locate the victim. The
Government also attempted to serve a subpoena on the victim at her last known address,
but the victim could not be found, and therefore the Government could not call her to
testify. We further conclude the district court did not abuse its discretion in finding that
the victim’s statements were reliable because they were made soon after the assault and
were corroborated by other evidence, including photographs, and because the victim
accurately described what Costanzo was wearing despite his claim that he had not seen the
victim that day.
Finally, Costanzo argues that the district court improperly admitted uncorroborated
hearsay evidence that he took the victim’s cell phone, and based upon this improperly
admitted evidence, determined that he violated the conditions of probation by committing
second degree criminal domestic violence (“CDV”), a Grade A violation, rather than third
degree CDV, a Grade C violation. We find no abuse of discretion by the district court in
concluding that reliable evidence supported the determination that Costanzo had
committed second degree CDV by either impeding the victim’s airflow or by taking her
phone to prevent her from calling the police. See S.C. Code. Ann. § 16-25-20(C)(4)(d), (e).
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Accordingly, we affirm the district court’s revocation order. 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
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