United States v. Faunce

United States v. Faunce, 66 F.4th 1244 (10th Cir. 2023): the panel holds it was not plain error for the district court to rely on a sub-section of the state’s criminal mischief statute different than the one cited by the government in the revocation petition. It also rules that, as a matter of first impression, Faunce’s due process rights were not violated by the district court’s decision to let an alleged victim testify by live video. Additionally, that decision was not an abuse of discretion. The panel holds that under plain error review the district court didn’t ‘constructively amend’ the revocation petition by using a different statutory subsection than the government cited. Most importantly, Faunce did not show any error affected a substantial right. The district court found Faunce had violated seven conditions of supervised release. Two of those were grade A violations which dictated the recommended guideline imprisonment range. Even without the criminal mischief violation, the imprisonment range would have been the same. And likewise the sentence imposed. The criminal mischief was a grade C violation that “paled in comparison to the far more serious violations of kidnapping and aggravated assault.” Besides the court could have considered the conduct even if the government hadn’t alleged it violated a supervised release condition. Faunce then made numerous arguments assailing the court’s decision to let the alleged victim testify remotely. None persuaded the panel. Still, our Utah FPD colleagues made an impressive due process challenge to the district court’s decision which allowed the alleged victim to testify by Zoom. They cited empirical studies, movie scenes showing cross-examinations, evidence involving in-court use of technologies like closed-circuit television, Blackstone commentaries and Supreme Court opinions to support the arguments that testimony by video conference dilutes the right of confrontation and that the right to physically confront a witness has a lengthy historical tradition. Due process, they said, gives the accused the right to in-person questioning of adverse witnesses at revocation hearings. Unfortunately, this argument wasn’t made in the district court. Using plain error review the panel decides that “given Faunce’s opportunity to see and hear [the victim] in real time, the district court didn’t commit an obvious or clear error in declining to sua sponte to find a denial of due process.” Per Faunce’s request, the panel next reviewed the district court’s Zoom decision under the Jones/Rule 32.1 balancing test. United States v. Jones, 818 F.3d 1091, 1100 (10th Cir. 2016). In Jones the court adopted Rule 32.1’s balancing test to determine the admissibility of hearsay in revocation proceedings. The panel commented that it wasn’t certain Jones applied because the context here was different. Ordinarily, the balancing test evaluates the reliability of out-of-court statements because of the inability to cross-examine a witness. In comparison, the panel said the balancing here involved the difference between Faunce’s ability to confront the alleged victim in person and through Zoom. It ruled that because the district court considered the balancing arguments from both parties, it correctly decided that credibility still could be evaluated via Zoom. Both the court and Faunce could see the alleged victim’s “mannerisms and body language.” Additionally, as the district court noted, she was not central to the government’s case and there were “practical difficulties [in] obtaining her presence.” Also, the court had “positive experience” with remote hearings throughout the pandemic. The record therefore demonstrated that the district court adequately balanced the parties’ competing interests and it did not abuse its discretion by allowing testimony via Zoom.