US v. Eric Zuspan

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:09-cr-00081-IMK-JSK-1 Copies to all parties and the district court/agency. [999730679].. [15-4294]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Eric

Wayne

Zuspan

appeals

the

revoking his supervised release.
the

district

court

abused

district

court’s

judgment

On appeal, he contends that

its

discretion

when

it

admitted

hearsay evidence at the revocation hearing and in revoking his
supervised release.
At

a

We affirm.

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.

balance

the

witness

against

32.1(b)(2)(C).

releasee’s

confrontation.”
(4th Cir. 2012).

any

“[T]he

interest

proffered

in

good

district

court

confronting
cause

for

an

must

adverse

denying

such

United States v. Doswell, 670 F.3d 526, 530
“[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,

revocation hearings.”
The

decision

to

hearsay

evidence

is

inadmissible

Id.
admit

hearsay

evidence

at

hearing is reviewed for an abuse of discretion.
F.3d at 529.
review.

at

a

revocation

Doswell, 670

Evidentiary rulings are subject to harmless error

United States v. Johnson, 617 F.3d 286, 292 (4th Cir.
2

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2010).

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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,

reasonable

not

whether

doubt.”

the

error

was

752

F.3d

Ferguson,

harmless
at

beyond

618

a

(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
supervised

that

Zuspan

release.

Government’s

evidence

violated

Moreover,
was

the

conditions

because

sufficient

—

we

without

of

his

conclude

the

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.
Zuspan

failed

to

object

below,
3

we

review

for

plain

Because
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.”
it

Id.

seriously

We have discretion to “correct the error only if
affect[s]

the

fairness,

reputation of judicial proceedings.”

integrity

or

public

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.
amount

of

restitution

loss
to

was

the

established

state

court.

by

Zuspan’s

Moreover,

the

First, the
payment

of

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.
court’s

judgment

We review for abuse of discretion a district
revoking

supervised

factual findings for clear error.

release

but

review

its

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.
(2012); Copley, 978 F.2d at 831.

18 U.S.C. § 3583(e)(3)
“[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
5

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

release

district

and

court

retained

had

authority

discretion

as

to

to

revoke

whether

to

supervised
accept

reject the probation officer’s recommended disposition.

or

See 18

U.S.C. § 3583(e)(3).
Accordingly, we affirm the district court’s judgment.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

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