United States of America v. Eric T. Conde

*Hon. William C. O’Kelley, U.S. District Judge for the Northern District of
Georgia, sitting by designation.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 02-2393
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UNITED STATES OF AMERICA
v.
ERIC T. CONDE,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
District Court Judge: Garrett E. Brown, Jr.
(D.C. Criminal No. 92-cr-00588)
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Submitted Under Third Circuit L.A.R. 34.1(a)
December 12, 2002
Before: FUENTES and STAPLETON, Circuit Judges,
and O’KELLEY,* District Judge.
(Opinion Filed: December 19, 2002 )
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OPINION OF THE COURT
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1Specifically, the District Court found that Conde had violated the following
supervision conditions: 1) “You shall report to the probation officer as directed by the
Court or probation officer, and shall submit a truthful and complete written report within
the first five days of each month”; 2) “You shall answer truthfully all inquiries by the
probation officer and follow the instructions of the probation officer”; 3) “You shall work
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FUENTES, Circuit Judge:
The District Court revoked Defendant Eric Conde’s supervised release after receiving
Probation Officer Thomas Miller’s violation of supervised release report and holding a hearing
in the matter. Conde appeals the District Court’s decision to revoke his supervised release and
sentence him to 14 months imprisonment. We have jurisdiction to hear this appeal pursuant
to 18 U.S.C. § 3742(a) and 28 U.S.C. §1291.
In 1993, Conde was convicted of distribution of more than five grams of crack cocaine
and receipt of firearms in interstate and foreign commerce. Following his conviction, the
District Court sentenced Conde to 96 months imprisonment and five years supervised release.
Conde served less than the full 96 months, and was released on supervised release. On
November 15, 2000, Conde appeared before the District Court because his probation officer
alleged that he had violated some of the conditions of his supervised release. He pled guilty
to the probation officer’s allegations that he had failed to submit a monthly supervision report
and to inform the U.S. Probation Office of an arrest within 72 hours after its occurrence. The
District Court sentenced Conde to a nine-month custodial term to be followed by 27 months
of supervised release.
Conde was released to supervision again on July 18, 2001. On April 15, 2002,
Probation Officer Miller submitted a violation of supervised release report to the District
Court alleging five violations of supervision conditions.1 On May 2, 2002, the District Court

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regularly at a lawful occupation unless excused by the probation officer for schooling,
training, or other acceptable reasons”; 4) “You shall not frequent places where controlled
substances are illegally sold, used, distributed, or administered”; and 5) “You shall notify
the probation officer within 72 hours of being arrested or questioned by a law enforcement
officer.” (App. pp. 3-4).
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held a hearing regarding the alleged violations during which he heard testimony from Probation
Officer Miller, Investigator Charles Bentham, Conde, and his fiancee, Janielle Stewart. The
District Court found that Conde had violated the conditions alleged by Probation Officer
Miller and, on May 6, 2002, sentenced him to a term of 14 months imprisonment to be
followed by 13 months of supervised release.
At the district court level, the Government has the burden of proving by a preponderance
of the evidence that at least one of the conditions of the defendant’s supervised release was
violated. 18 U.S.C. § 3583(e)(3). If the district court finds that a violation occurred, it has
discretion to revoke or modify the defendant’s supervised release. Id. On appeal, the district
court’s decision to revoke supervised release is reviewed only for abuse of discretion. See
Government of the Virgin Islands v. Martinez, 239 F.3d 293, 297 (3d Cir. 2001).
Conde argues that each of the District Court’s five findings of violations were
unsupported by the record. He also asserts that the District Court was predisposed to rule
against him and that the probation officer “railroaded” him into conduct that was harmless and
lawful. We are not persuaded by Conde’s arguments.
The District Court heard the testimony of four witnesses, including Conde and his
fiancee, reviewed the exhibits presented by the Government and the defense, and made findings
of fact. The District Court found that the Government had met its burden of proof with respect
to each of the violations alleged by Probation Officer Miller.

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We have reviewed the record and find that the District Court’s findings were adequately
supported by the record. The proof presented by the Government established that Conde had,
in fact, failed to file two monthly reports, work regularly, stay away from areas in which drugs
were sold, and report interactions with law enforcement. The evidence submitted by the
defense did not substantially refute the proof presented by the Government; it merely added
context and post hoc explanations for each of Conde’s violations. In any event, the District
Court was in the best position to determine witness credibility. See United States v. Whalen,
82 F.3d 528, 531 (1st Cir. 1996) (holding district court’s credibility determinations
concerning evidence presented at a supervised release revocation hearing not reviewable on
appeal). Thus, we find that the District Court’s decision to revoke Conde’s supervised release
did not constitute an abuse of discretion. We therefore affirm.

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TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
/s/ Julio M. Fuentes
Circuit Judge

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