United States v. Broderick Jones

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4950
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRODERICK F. JONES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:05-cr-00253-REP-1)
Submitted: May 29, 2014 Decided: June 20, 2014
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Caroline S.
Platt, Appellate Attorney, Robert J. Wagner, Assistant Federal
Public Defender, Alexandria, Virginia, for Appellant. Dana J.
Boente, Acting United States Attorney, Christopher D. Jackson,
Special Assistant United States Attorney, Alexandria, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Broderick F. Jones appeals the district court’s
judgment revoking his supervised release and sentencing him to
eighteen months of imprisonment. He raises two issues on
appeal: (1) whether the district court abused its discretion by
admitting hearsay statements without complying with Fed. R.
Crim. P. 32.1 and this court’s opinion in United States v.
Doswell, 670 F.3d 526, 530 (4th Cir. 2012), and (2) whether
sufficient evidence supports his violation. For the reasons
that follow, we affirm.
Jones argues that the district court erred by
permitting hearsay evidence in the form of a video recording of
the drug purchase at issue made by a confidential informant
(“CI”), rather than presenting the testimony of the CI himself.
A defendant at a revocation hearing has the right to confront
and cross-examine adverse witnesses “unless the hearing officer
specifically finds good cause for not allowing confrontation.”
Morrissey v. Brewer, 408 U.S. 471, 489 (1972). The parameters
of this right are established in Rule 32.1(b)(2)(C), which
states that 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.” Id.; see Doswell, 670
F.3d at 530. The Doswell opinion requires that the district
court “balance the releasee’s interest in confronting an adverse
2
witness against any proffered good cause for denying such
confrontation.” 670 F.3d at 530. If the evidence is reliable
and the Government’s explanation for not producing the witness
is satisfactory, the hearsay evidence will likely be admissible
under Rule 32.1. Id. at 531. Applying these standards, we
conclude that the district court did not abuse its discretion in
allowing the video evidence without the live testimony of the
CI, who was unavailable at trial.
Regarding the second issue, we review the district
court’s revocation of supervised release for abuse of
discretion. United States v. Pregent, 190 F.3d 279, 282 (4th
Cir. 1999). To revoke supervised release, a 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) (2012);
see United States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992).
This standard is met when a court “believe[s] 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 review for clear error factual
determinations underlying the conclusion that a violation
occurred, United States v. Carothers, 337 F.3d 1017, 1019 (8th
Cir. 2003), and credibility determinations made by the district
court at revocation hearings are rarely reviewable on appeal.
United States v. Cates, 613 F.3d 856, 858 (8th Cir. 2010).
3
With these standards in mind, we have carefully
reviewed the record and conclude that the district court did not
clearly err in finding, by a preponderance of the evidence, that
Jones engaged in new criminal conduct, here assisting in the
distribution of heroin to the CI as part of a drug conspiracy.
The video recording of the heroin purchased supports the
district court’s findings along with the testimony of two
officers who witnessed the drug purchase. The court had ample
reason to find that defense counsel’s explanation, that Jones
could have been handing his coconspirator Thomas Henry something
other than drugs or money, was not particularly persuasive.
Accordingly, we affirm the revocation of Jones’
supervised release. We dispense with oral argument because the
facts and legal contentions are adequately represented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
4