[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 26, 2008
No. 06-14187 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 96-00477-CR-UUB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH S. TRAVERS,
a.k.a. LARRY THOMAS
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 26, 2008)
Before TJOFLAT, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
On May 20, 1999, appellant, having been convicted by a jury on seven
counts of mail fraud, eight counts of bankruptcy fraud, one count of equity
skimming, and eleven counts of money laundering, was sentenced by the district
court to concurrent prison sentences of seventy-eight months on the money
laundering counts and sixty months on the mail fraud and bankruptcy fraud counts
and to a three-year term of supervised release. Included in the sentencing package
was an order requiring appellant to pay restitution to the Veterans Administration
and the Department of Housing and Urban Development in the total sum of
$571,049.
On November 10, 2005, after appellant had been released from prison, the
probation officer monitoring his term of supervised release petitioned the district
court to revoke his supervised release on the ground that he had failed to comply
with conditions of his release, in that (1) he filed false monthly reports, (2)
answered untruthfully the probation officer’s inquiries, and (3) failed to make
required restitution payments. The court referred the matter to a magistrate judge,
who held an evidentiary hearing at which the probation officer, a deputy district
court clerk, appellant and his wife testified. See magistrate judge’s Report and
Recommendation (“R&R”). The judge credited the testimony of the probation
officer and the deputy clerk, found appellant’s testimony false “in all material
respects, ” and concluded that appellant had “violated each of the three conditions
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of supervised release set-forth in the [petition for revocation.]. Id. The district
court affirmed and adopted the R&R , revoked appellant’s supervised release,
sentenced appellant to prison for three months, and imposed a new thirty-three
months term of supervised release. Appellant now appeals.
Appellant asks us to set aside the court’s judgment on the ground that there
was no evidence that he intentionally violated the conditions of supervised release;
in fact, the evidence was that he made a good faith attempt to comply with those
conditions. Citing his own testimony and that of his wife, he contends that (1) it is
uncontroverted that he purchased money orders to make all of his restitution
payments; (2) he made additional payments when he learned that all of his money
orders had not been received by the court clerk’s office; and (3) he did not bring
his account current merely to avoid an adverse decision in his revocation
proceeding. Put another way, the magistrate judge had no basis for discrediting
his testimony.
A district court’s revocation of supervised release is reviewed for an abuse
of discretion. United States v. Frazier, 26 F.3d 110, 112 (11th Cir. 1994). A court
may revoke a term of supervised release if it “finds by a preponderance of the
evidence that the person violated a condition of supervised release.” United States
v. Almand, 992 F.2d 316, 318 n.6 (11th Cir. 1993) (quotation omitted); see also
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United States v. Robinson, 893 F.2d 1244, 1245 (11th Cir. 1990) (holding that in a
probation revocation proceeding, “all that is required is that the evidence
reasonably satisfy the judge that the conduct of the probationer has not been as
good as required by the conditions of the probation; evidence that would establish
guilt beyond a reasonable doubt is not required” (quotation omitted)). Moreover,
“[a] district court’s findings of fact are binding on this [C]ourt unless clearly
erroneous.” Almand, 992 F.2d at 318 (quotation omitted).
The magistrate judge found appellant’s testimony unworthy of belief. The
evidence fully supported that finding, and the district court properly adopted it.
Appellant violated the conditions of his supervised release. The judgment of the
district court is, accordingly,
AFFIRMED.
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