[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 29, 2005
No. 04-14583 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 98-00008-CR-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALTON GRIGGS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(April 29, 2005)
Before CARNES, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Alton Griggs appeals the revocation of his supervised release under 18
U.S.C. section 3583(e). Griggs raises three issues on appeal: (1) whether the
district court erred when it denied his motion to dismiss the revocation proceeding;
(2) whether the district court erred when it admitted hearsay testimony at the
revocation proceeding; and (3) whether the district court erroneously concluded
that Griggs had violated a condition of his supervised release. We affirm.
In October 2003, Griggs began serving three years of supervised release
related to a firearms offense. In March 2004, the United States Probation Office
notified the district court that Griggs had violated the terms of his supervised
release. Griggs had been charged with driving with a suspended license and
battery upon his wife. Griggs was reprimanded and continued on supervised
release. In July 2004, the Probation Office petitioned the district court to revoke
Griggs’s supervised release based on a second arrest for battery against his wife
and driving without a license, in addition to the earlier charges. Griggs was
arrested on July 19, 2004. A revocation hearing was scheduled for July 29, 2004,
but Griggs, with the advice of counsel, waived the hearing on July 26, 2004.
Griggs then moved to dismiss the revocation proceeding because of an alleged
violation of Federal Rule of Criminal Procedure 32.1, which requires that a person
held for violation of supervised release must be taken before a magistrate judge
without unnecessary delay for an initial appearance. Fed. R. Crim. P. 32.1(a)(1).
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The district court denied the motion. After hearing testimony, some of which
included hearsay, the district court revoked Griggs’s supervised release and
sentenced Griggs to eight months’ imprisonment. Griggs appeals.
We review the denial of a motion to dismiss, the evidentiary ruling, and the
decision of the district court to revoke supervised release for abuse of discretion.
United States v. Bobo, 344 F.3d 1076, 1082-83 (11th Cir. 2003); United States v.
Frazier, 26 F.3d 110, 112 (11th Cir. 1994); see United States v. Wright, 392 F.3d
1269, 1276 (11th Cir. 2004).
First, Griggs argues that the district court abused its discretion when it
denied Griggs’s motion to dismiss the revocation proceeding. Griggs argues that
he did not receive a timely initial appearance in accord with Rule 32.1 and the
revocation proceeding should have been dismissed. It is undisputed that Griggs
did not appear before the magistrate judge for an initial appearance, but any error
regarding the initial appearance was harmless. During the initial appearance, the
magistrate judge must inform the person in custody of “A) the alleged violation of
probation or supervised release; (B) the person’s right to retain counsel or to
request that counsel be appointed if the person cannot obtain counsel; and (C) the
person’s right, if held in custody, to a preliminary hearing under Rule 32.1(b)(1).”
Fed. R. Crim. P. 32.1. In his waiver of the preliminary or probable cause hearing,
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Griggs showed that he possessed all the information that would have been
provided to him at an initial appearance: Griggs stated that he had been advised of
the charges against him and of his right to a hearing by his attorney, and he waived
his right to a preliminary examination. Griggs, therefore, was not harmed by the
lack of an initial appearance.
Second, Griggs argues that the district court erroneously admitted hearsay
evidence during the revocation hearing concerning the alleged batteries upon his
wife. Griggs objects specifically to the testimony given by Deputy Danny Higgins
and Deputy Tom Sollosi regarding statements made to them by Griggs’s wife and
his wife’s daughter. This argument fails. First, the Federal Rules of Evidence do
not apply in revocation proceedings. Frazier, 26 F.3d at 114. Second, although
hearsay is not automatically admissible at a revocation proceeding, the district
court properly allowed the evidence. See id. The district court found that the
statements were reliable because they were taken shortly after the alleged incidents
had occurred, and Griggs was allowed to cross-examine each witness at the
hearing.
Finally, Griggs argues that the district court abused its discretion when it
revoked his supervised release. The district court was permitted to revoke Griggs’s
supervised release if it found, by a preponderance of the evidence, that Griggs
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violated a condition of his supervised release. 18 U.S.C. § 3583(e)(3). One
condition of Griggs’s release was that he “not commit another Federal, State, or
local crime during the term of supervision and that [he] not unlawfully possess a
controlled substance.” 18 U.S.C. § 3583(d). Sufficient evidence was presented for
the district court to find by a preponderance of the evidence that Griggs had
violated his supervised release by driving without a license, for which he was
convicted, and by committing a battery against his wife. Although Griggs
presented evidence to the contrary, the district court was not required to accept the
testimony of Griggs’s witnesses over the testimony of the witnesses for the
government.
AFFIRMED.
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