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United States v. Faunce.

No. 22-4019. 5/9/2023. D.Utah. Judge Bacharach. Supervised Release—Revocation—Constructive Amendment of Revocation Petition—Due Process—Remote Testimony—Fed. R. Crim. P. 32.1(b)(2)(C).

May 9, 2023

Faunce was on supervised release when he allegedly beat his ex-girlfriend, E.B., and locked her in an RV. The government petitioned for revocation, alleging that Faunce had committed two grade A violations (kidnapping and aggravated assault) and five grade C violations. One of the grade C violations involved criminal mischief for breaking the rear window of E.B.’s car. The courthouse was closed due to the COVID-19 pandemic, so the district court scheduled the revocation hearing via Zoom. However, the courthouse then arranged to reopen on the day of the revocation hearing, so the court granted Faunce’s request to conduct the hearing in-person and allowed E.B. to testify by Zoom. The district court found that Faunce had committed kidnapping, aggravated assault, criminal mischief, and other violations of the terms of his supervised release and sentenced him to two years in prison and one more year of supervised release.

On appeal, Faunce argued that the district court deprived him of notice by constructively amending the petition by applying a different statutory subsection than the government had cited. In a prehearing memorandum, the government cited a specific subsection of the Utah statute on criminal mischief. But during the revocation hearing, the district court invoked a different subsection, finding that it more clearly applied. However, even without the finding of criminal mischief, given the other violations, the district court’s classification of the conduct as criminal mischief didn’t materially affect the decision to revoke supervised release, the guideline range, or the sentence selection. Accordingly, the alleged constructive amendment would not have affected Faunce’s substantial rights, so he failed to show plain error.

Faunce also contended that the district court denied him due process by allowing E.B. to testify remotely. However, Faunce was able to see and hear E.B. in real time and to cross-examine her. Further, no circuit court caselaw establishes a due process violation from a witness’s remote testimony at a revocation hearing, so a possible denial of due process wouldn’t have been obvious or clear.

Faunce further argued that the district court abused its discretion and violated Fed. R. Crim. P. 32.1(b)(2)(C) by failing to properly balance the competing factors before allowing the remote testimony. Assuming for the sake of argument that Rule 32.1(b)(2)(C) required a balancing test, the district court would have satisfied the requirement because it balanced the government’s reasons for excusing E.B.’s in-person appearance against Faunce’s right of confrontation in his ability to probe E.B.’s reliability by questioning her through Zoom rather than in-person. And the district court acted within its discretion by allowing E.B. to testify by Zoom because it reasonably weighed every consideration that had been presented.

The revocation of Faunce’s supervised release and the sentence were affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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