USA v. Andrew Bell

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-10371
Non-Argument Calendar
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D.C. Docket No. 5:03-cr-00054-SLB-SGC-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDREW BELL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
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(November 23, 2015)
Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
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After finding that Andrew Bell had violated the terms of his supervised
release by committing the crime of arson, the District Court revoked his release
and sentenced him to prison for a term of 60 months. He appeals the District
Court’s decision, arguing that the court erred by admitting hearsay statements at
his revocation hearing without first applying the balancing test laid out by United
States v. Frazier, 26 F.3d 110 (11th Cir. 1994), and denying him minimal due
process requirements. The hearsay Bell complains of consists of Detective Matt
Young’s testimony relating out-of-court statements made by Jeffrey Toney, Akia
Rice’s daughter, Alexis, and the state Fire Marshal, who said that based on his
examination of the scene of the fire, Bell’s ex-wife’s garage, an accelerant had
been used—that arson had been committed. We find no merit in Bell’s appeal and
accordingly affirm.1
Bell did not present his Frazier and due process objections to the District
Court; hence, we review the objections for plain error. Under the plain error
standard, Bell “must show that: (1) an error occurred; (2) the error was plain; (3) it
affected his substantial rights; and (4) it seriously affected the fairness of the
judicial proceedings.” See United States v. Gresham, 325 F.3d 1262, 1265 (11th
Cir. 2003). An error cannot be plain unless the error is “clear under current law.”
1 We review the District Court’s revocation of Bell’s supervised release under the abuse
of discretion standard. United States v. Frazier, 26 F.3d 110, 114 (11th Cir. 1004). We find no
abuse here.
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United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000). The test for
showing that the error affected substantial rights, and thus “the outcome of the
district court proceedings,” is the formulation of a reasonable probability of a
different result, which means a probability “sufficient to undermine confidence in
the outcome.” United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005)
(quotations omitted).
A violation of supervised release need only be proven by a preponderance of
the evidence. 18 U.S.C. § 3583(e)(3); United States v. Cunningham, 607 F.3d,
1264, 1268 (11th Cir. 2010). A defendant’s supervised release can be revoked, and
a term of imprisonment imposed, whether or not the defendant has been subject to
a separate prosecution, and the grade of the violation does not depend on the
conduct charged in the separate proceeding, but the actual conduct of the
defendant. U.S.S.G. § 7B1.1 cmt. n.1.
“Although the Federal Rules of Evidence do not apply in supervised release
revocation hearings, the admissibility of hearsay is not automatic. Defendants
involved in revocation proceedings are entitled to certain minimal due process
requirements.” Frazier, 26 F.3d at 114. Among the due process requirements
available at a revocation hearing is the right to confront and cross-examine adverse
witnesses. Id.; see also Fed. R. Crim. P. 32.1(b)(2)(C) (stating before supervised
release is revoked, “[t]he person is entitled to . . . an opportunity to . . . question
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any adverse witness unless the court determines that the interest of justice does not
require the witness to appear”). The right to cross examine adverse witnesses at a
revocation of supervised release hearing is not absolute; rather, “in deciding
whether or not to admit hearsay testimony, the court must balance the defendant's
right to confront adverse witnesses against the grounds asserted by the government
for denying confrontation.” Frazier, 26 F.3d at 114. Additionally, the hearsay
statement must be reliable. Id. Where, as here, the properly admitted evidence is
sufficient to support the district court's conclusion, any error is harmless. Id.
Bell has not shown, under the plain error standard, that his substantial rights
were affected in this case and that, for such reason, we should vacate the District
Court’s decision and remand the case for further proceedings. To the contrary, the
evidence before the court demonstrated that Bell violated the terms of his
supervised release. Specifically, his ex-wife testified that she saw him pour an
accelerant into her garage and light the building on fire using a lit piece of paper.
Bell’s mother testified, and corroborated several of Bell’s ex-wife’s statements.
And, Bell himself admitted to leaving the Northern District of Alabama without
permission, and hiding in Forest Park, Georgia, under an assumed name after the
fire. Taken all together, there was sufficient evidence to support the court’s
decision to revoke Bell’s supervised release.
AFFIRMED.
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