United States v. Eric Zuspan

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.
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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.
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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
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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
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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
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