                                                            [DO NOT PUBLISH]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



                                          4
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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