19-333
United States of America v. Tabb

                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
28th day of February, two thousand twenty.

Present:         ROSEMARY S. POOLER,
                 GERARD E. LYNCH,
                             Circuit Judges.
                 JESSE M. FURMAN,1
                             District Judge.

_____________________________________________________

UNITED STATES OF AMERICA,

                                   Appellee,

                         v.                                                    19-333

ZIMMIAN TABB, AKA Sealed Defendant # 2,2

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:           Justine A. Harris (Yu Han, on the brief), Sher Tremonte LLP, New
                                   York, N.Y.

Appearing for Appellee:            Rebekah Donaleski, Assistant United States Attorney (David
                                   Denton, Daniel B. Tehrani, Assistant United States Attorneys, on
1
  Judge Jesse M. Furman, United States District Court for the Southern District of New York,
sitting by designation.
2
  The Clerk of Court is directed to amend the caption as above.
                               the brief), for Geoffrey S. Berman, United States Attorney for the
                               Southern District of New York, New York, N.Y.

Appeal from the United States District Court for the Southern District of New York (Hellerstein,
J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Appellant Zimmian Tabb appeals from the February 4, 2019 judgment of conviction of
the United States District Court for the Southern District of New York (Hellerstein, J.) for
Tabb’s violation of the terms of his supervised release, following the district court’s finding after
a two-day hearing that Tabb committed the federal crime of arson, in violation of 18 U.S.C.
§ 844(i). We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.

        “We review evidentiary rulings by the district court for abuse of discretion,” United
States v. Lebedev, 932 F.3d 40, 49 (2d Cir. 2019), including the district court’s balancing of
factors under Fed. R. Crim. P. 32.1 to admit hearsay statements into a violation of supervised
release hearing. United States v. Williams, 443 F.3d 35, 46 (2d Cir. 2006). “Abuse of discretion
encompasses clearly erroneous findings of fact and misapplications of the law.” Id.

       In violations of supervised release proceedings, Fed. R. Crim. P. 32.1(b)(1)(B)(iii)
requires district courts to determine whether good cause exists to deny the defendant the
opportunity to confront an adverse witness when the government seeks to introduce hearsay
statements. Williams, 443 F.3d at 45. “In making that determination, the court must balance, on
the one hand, the defendant’s interest in confronting the declarant, against, on the other hand, the
government’s reasons for not producing the witness and the reliability of the proffered hearsay.”
Id. On appeal, Tabb contends that the district court erred in admitting and relying on the hearsay
statements of one of the victims of the arson, Victim-1.

        We conclude that the district court did not abuse its discretion in admitting and crediting
Victim-1’s hearsay statements. Over the course of the proceedings, and prior to making its final
determination, the district court conducted the balancing required under Rule 32.1. The record is
clear that the district court considered Tabb’s interest in cross-examining Victim-1—noting at
one point that if testimony was “important, it shouldn’t be” presented through hearsay, J.A. 37—
and that Victim-1 had a well-founded fear of retribution established by the testimony of police
detectives and proffers from the prosecution. The district court also considered the reliability of
each of Victim-1’s statements and ultimately credited only some of them, including sworn
statements about the threats made by Tabb that were corroborated by text message and
surveillance video evidence. The district court expressly declined to rely on other statements
challenged on appeal, including those in which Victim-1 characterized what was shown by the
surveillance videos. The district court therefore did not abuse its discretion in admitting and
crediting some of Victim-1’s statements under Fed. R. Crim. P. 32.1.




                                                  2
         We also conclude that the district court did not clearly err in finding, by a preponderance
of the evidence, that Tabb committed the federal crime of arson in violation of the terms of his
supervised release. See United States v. Carlton, 442 F.3d 802, 810 (2d Cir. 2006) (“[W]e review
a district court’s finding of a violation of supervised release only for an abuse of discretion and
its factual findings for clear error.”). Tabb has not shown any clear error in the district court’s
finding that the individuals captured on surveillance video leaving the white BMW associated
with Tabb were the same individuals captured on other surveillance video lighting the fire. Tabb
also contends that the district court erred in relying on text messages between Tabb and Victim-1
and in accepting the government’s proffer that one of the apartments in Victim-1’s home was
Section 8 housing, but Tabb raised neither of these challenges before the district court. Tabb
therefore provides no basis to conclude the district court abused its discretion in finding that a
preponderance of the evidence established that Tabb committed the federal crime of arson.
Indeed, this conclusion was supported by ample evidence, including surveillance video, license
plate reader data, statements by Victim-1, testimony by police officers, and text messages
showing that Tabb threatened Victim-1.

        Lastly, we conclude that the district court properly denied Tabb’s motion to dismiss the
specifications of the violations of the terms of his supervised release. This Court reviews de novo
the district court’s denial of a motion to dismiss on due process grounds. See United States v.
Sanchez, 225 F.3d 172, 175 (2d Cir. 2000). A delay between the violation of supervised release
and the execution of a violation warrant may violate due process “if the delay does in fact
prejudice the defendant by substantially limiting the ability to defend against the charge that the
conditions of supervised release were violated.” United States v. Ramos, 401 F.3d 111, 116 (2d
Cir. 2005). Tabb has not satisfied this standard. As the district court explained in its August 7,
2018 opinion, any testimony that could have been obtained from Victim-1’s father, Victim-3,
would not have substantially assisted Tabb’s defense, and the possibility of finding alibi
witnesses, additional video footage, or other evidence that would support the defense was
speculative. Tabb also has failed to demonstrate how further inspection of the fire debris
recovered at the scene would have substantially assisted in his defense. Accordingly, the district
court properly denied the motion to dismiss.

        We have considered the remainder of Tabb’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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