           Case: 12-15793   Date Filed: 07/09/2013   Page: 1 of 7


                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-15793
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 2:00-cr-14055-DLG-2



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,


                                  versus



LOUIS ALLEN,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                              (July 9, 2013)

Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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      Louis Allen appeals the revocation of his supervised release, imposed for

committing theft by deception. On appeal, Allen argues that the district court erred

in admitting two pieces of hearsay evidence, a video and an affidavit, at his

revocation hearing. He also argues that the district court clearly erred in crediting

witness Michael Johnson’s testimony over his own testimony. Finally, he argues

that the district court abused its discretion in concluding that he violated his

supervised release by committing theft by deception. After thorough review, we

affirm.

                        I. Admission of Video and Affidavit

      Whether the Federal Rules of Evidence apply in a supervised release

revocation hearing is a question of law, and as such is subject to de novo review.

United States v. Frazier, 26 F.3d 110, 112 (11th Cir. 1994). Although we have

held that the Federal Rules of Evidence do not apply in supervised release

revocation hearings, “the admissibility of hearsay is not automatic.” Id. at 114.

Defendants in probation and supervised release revocation proceedings are entitled

to “certain minimal due process requirements,” including the right to confront and

cross-examine witnesses. Id. In determining whether to admit hearsay testimony,

the district court “must balance the defendant’s right to confront adverse witnesses

against the grounds asserted by the government for denying confrontation.” Id. In

addition, the hearsay statement must be reliable. Id.


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      A court’s failure to perform this balancing test may be harmless if the

evidence overwhelmingly demonstrates that the defendant violated the terms of his

supervised release. Id. If admission of hearsay evidence violates due process, “the

defendant bears the burden of showing that the court explicitly relied on the

information;” the defendant must show “(1) that the challenged evidence is

materially false or unreliable, and (2) that it actually served as the basis for the

sentence.” See United States v. Taylor, 931 F.2d 842, 847 (11th Cir. 1991)

(quotation omitted) (discussing the admissibility of hearsay testimony in the

context of a probation revocation hearing); see also Frazier, 26 F.3d at 113

(holding that there is no significant conceptual difference between the revocation

of probation or parole and the revocation of supervised release).

      Here, even assuming arguendo that the district court erred by introducing

the cell phone video (Government Exhibit 4) and the affidavit (Government

Exhibit 5) into evidence without explicitly discussing the balancing test from

Frazier, the error was harmless because Allen failed to show that the challenged

evidence is materially false or unreliable and that it actually served as the basis for

his sentence. Allen failed to meet his burden of showing that the court “explicitly

relied on the information.” See Taylor, 931 F.2d at 847. First, with regard to the

cell phone video, the district court described the video as “two gentlemen who

appeared to be in a dining area of a home and one person appearing to sign some


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document or sign something, to affix a signature to a piece of paper.” The district

court stated that it didn’t even know what the video was supposed to prove or

verify. Therefore, even though the district court stated that it had considered all of

the evidence in the record, nothing in the record explicitly indicates that the district

court actually relied on this video that he had “no clue what it was supposed to

prove or verify.” Additionally, with regard to both the video and the affidavit,

Allen has not met his burden of showing that this evidence is materially false or

unreliable. The video and the affidavit were both consistent with testimony that

the magistrate judge had found credible, and, as we hold infra, the magistrate judge

did not clearly err by crediting Johnson’s account over Allen’s account. See

United States v. Reme, 738 F.2d 1156, 1168 (11th Cir. 1984) (“Whether the

hearsay statement is corroborated or contradicted by other evidence in the record is

also relevant in determining reliability.”). Allen also did not present any evidence

before the district court to meet his burden of showing that the affidavit, which

directly corroborates Johnson’s testimony before the magistrate judge, is false or

unreliable. Accordingly, even assuming arguendo that the district court erred, we

readily conclude that any error was harmless.

                             B. Credibility of Witnesses

      The district court’s findings of fact at a revocation hearing are reviewed for

clear error. United States v. Almand, 992 F.2d 316, 318 (11th Cir. 1993). “The


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credibility of a witness is in the province of the factfinder and this court will not

ordinarily review the factfinder’s determination of credibility.” United States v.

Copeland, 20 F.3d 412, 413 (11th Cir. 1994); see also United States v.

Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (holding, in the context of a

criminal trial, that a court’s choice of who to believe is conclusive unless the judge

credits exceedingly improbable testimony). We defer to the lower court’s

credibility determinations unless the court’s “understanding of the facts appears to

be ‘unbelievable.’” Ramirez-Chilel, 289 F.3d at 749 (citing United States v.

Rivera, 775 F.2d 1559, 1561 (11th Cir. 1985)).

      The district court’s credibility determinations are not “unbelievable.” See id.

Allen contends on appeal that the lower court discredited Allen’s testimony as a

per se matter because of his vested interest in this case and accordingly that we

should reverse the district court in light of our decision in Gallego v. United States,

174 F.3d 1196, 1198-99 (11th Cir. 1999). But the record clearly reflects that the

lower courts did not dismiss Allen’s testimony as a per se matter. Instead, the

magistrate judge—and district court judge—found that the record evidence more

accurately supported Johnson’s testimony and that Allen’s version of the events

“defies common sense” and that it is “unlikely that [the incident] occurred the way

the Defendant testified.” The magistrate judge also specifically found that

Government Exhibit No. 2—the admission of which is not challenged on appeal—


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more closely corroborated the testimony of Johnson than Allen. Our review of the

record in this case clearly indicates that the lower courts carefully reviewed the

testimony and record in making their credibility determinations. See also Ramirez-

Chilel, 289 F.3d at 750 (dismissing the defendant’s argument based on Gallego

because, “after reading the magistrate judge’s report and recommendation, it

appears as if the magistrate judge did not base his credibility determination solely

on the ‘status’ of the witnesses, but rather weighed the testimonies of all the

witnesses, taking into account the interests of the witnesses, the consistencies or

inconsistencies in their testimonies, and their demeanor on the stand”). Both

Johnson and Allen testified before the magistrate judge, and the magistrate

judge’s—and the district court judge’s—credibility findings are not unbelievable;

accordingly, we “find the court’s credibility determinations to be entitled to

deference.” See id.

                       C. Revocation of Supervised Release

      Under 18 U.S.C. § 3583(e), a district court may revoke a term of supervised

release and impose a term of imprisonment upon a defendant who violates the

terms of his supervised release if the government proves such a violation by a

preponderance of the evidence. 18 U.S.C. § 3583(e)(3). Ordinarily, we review a

district court’s revocation of supervised release for abuse of discretion. Frazier, 26

F.3d at 112.


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      Under Alabama law, theft of property by deception requires proof that:

(1) the defendant knowingly obtained property; (2) he obtained the property by

deception; and (3) he intended to deprive the owner of the property. Ex Parte

Stinson, 631 So. 2d 831, 832 (Ala. 1991). Property includes both “money” and

“tangible or intangible personal property.” Ala. Code § 13A-8-1.

      The evidence demonstrated that Johnson gave Allen money after they agreed

that Allen would sell his car to Johnson. Allen then took the car and the money.

Allen’s actions are enough to show by a preponderance of the evidence that Allen

intended to deprive Johnson of property by deception. The fact that Allen did not

have clear title in his name and that the title had been pledged to Cash 2 Go as

security for a loan further supports the conclusion that Allen intended to deprive

Johnson of the property from the inception. Therefore, the government showed by

a preponderance of evidence that Allen violated his supervised release by

committing theft by deception, and the district court did not abuse its discretion in

revoking Allen’s supervised release based on that violation. Accordingly, we

affirm.

      AFFIRMED.




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