USCA4 Appeal: 22-4640 Doc: 31 Filed: 12/28/2023 Pg: 1 of 4

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4640

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RICHARD ALAN COSTANZO,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Beaufort. Bruce H. Hendricks, District Judge. (9:19-cr-00057-BHH-1)

Submitted: July 19, 2023 Decided: December 28, 2023

Before NIEMEYER and RUSHING, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Emily Deck Harrill, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Adair F. Boroughs, United States Attorney, J. Carra Henderson, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-4640 Doc: 31 Filed: 12/28/2023 Pg: 2 of 4

PER CURIAM:

Richard Alan Costanzo pled guilty to possession of a firearm as a convicted felon

and was sentenced to five years’ probation. While serving his probation, Costanzo was

charged in state court with criminal domestic violence (“CDV”), second degree. The

district court revoked Costanzo’s supervised release and sentenced him to 37 months of

imprisonment to be followed by 36 months of supervised release. On appeal, Costanzo

challenges the district court’s admission of hearsay evidence at the revocation hearing. We

affirm.

“We review a district court’s evidentiary ruling in a revocation hearing for abuse of

discretion.” United States v. Ferguson,

(4th Cir. 2014). Pursuant to

Fed. R. Crim. P. 32.1(b)(2)(C), a defendant in a revocation proceeding is entitled to an

opportunity to question adverse witnesses unless the court determines that the interest of

justice does not require the witness to appear.

“Rule 32.1(b)(2)(C) specifically requires

that, prior to admitting hearsay evidence in a revocation hearing, the district court must

balance the releasee’s interest in confronting an adverse witness against any proffered good

cause for denying such confrontation.” United States v. Doswell,

(4th Cir. 2012). While reliability is no longer the test for admissibility, it remains “a critical

factor in the balancing test under Rule 32.1.”

. “If hearsay evidence is reliable

and the [g]overnment has offered a satisfactory explanation for not producing the adverse

witness, the hearsay evidence will likely be admissible under Rule 32.1.”

We have thoroughly reviewed the record and conclude that the district court

appropriately considered Costanzo’s confrontation rights and applied the balancing test of

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Rule 32.1. The district court did not abuse its discretion in determining that the good cause

proffered by the Government for the victim’s unavailability outweighed Costanzo’s

confrontation interests. See Ferguson,

. As the Government explained, it

made numerous attempts to contact the victim in the months prior to the hearing and

worked with the victim advocate for local law enforcement to try to locate the victim. The

Government also attempted to serve a subpoena on the victim at her last known address,

but the victim could not be found, and therefore the Government could not call her to

testify. We further conclude the district court did not abuse its discretion in finding that

the victim’s statements were reliable because they were made soon after the assault and

were corroborated by other evidence, including photographs, and because the victim

accurately described what Costanzo was wearing despite his claim that he had not seen the

victim that day.

Finally, Costanzo argues that the district court improperly admitted uncorroborated

hearsay evidence that he took the victim’s cell phone, and based upon this improperly

admitted evidence, determined that he violated the conditions of probation by committing

second degree criminal domestic violence (“CDV”), a Grade A violation, rather than third

degree CDV, a Grade C violation. We find no abuse of discretion by the district court in

concluding that reliable evidence supported the determination that Costanzo had

committed second degree CDV by either impeding the victim’s airflow or by taking her

phone to prevent her from calling the police. See S.C. Code. Ann. § 16-25-20(C)(4)(d), (e).

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Accordingly, we affirm the district court’s revocation order. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

AFFIRMED

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