505 F. App'x 843
11th Cir.2013Background
- McKenzie appeals a 36-month sentence for revocation of supervised release after a prior 92-month drug-trafficking term.
- He began a 5-year supervised release, during which a petition alleged six violations.
- District court held a revocation hearing and found all violations, including sale of cocaine, proven by the government.
- McKenzie contends the government failed to prove the cocaine sale and raises evidentiary challenges on appeal.
- The government must prove violations by a preponderance of the evidence; the district court’s factual findings are reviewed for clear error.
- Evidence included a CI-led cocaine sale monitored by Agent Battle via live video and audio feeds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the sale of cocaine proven by preponderance of the evidence? | McKenzie argues the sale was not proven. | McKenzie’s last name is used for both: government argues sale proven. | Yes; preponderance shown. |
| Is Agent Battle’s identification of McKenzie as the seller hearsay? | McKenzie argues testimony relied on hearsay. | Government contends testimony was non-hearsay perception of live feed. | Not hearsay; testimony admissible. |
| Did the best evidence rule bar Agent Battle’s testimony? | McKenzie argues best evidence rule applies because video not played. | Government contends best evidence rule inapplicable; testimony proved identity from live feed. | Inapplicable; testimony allowed. |
| Was the video recording required to be authenticated since not admitted? | McKenzie suggests lack of admission requires authentication. | Video not admitted; authentication not required for testimony about live feed. | No authentication error; not required. |
Key Cases Cited
- United States v. Sweeting, 437 F.3d 1105 (11th Cir. 2006) (preponderance standard for supervised release violations)
- United States v. Almand, 992 F.2d 316 (11th Cir. 1993) (clear-error review of factual findings)
- United States v. Gresham, 325 F.3d 1262 (11th Cir. 2003) (plain-error framework for revocation findings)
- United States v. Robertson, 493 F.3d 1322 (11th Cir. 2007) (substantial-evidence standard for factual findings)
- United States v. Frazier, 26 F.3d 110 (11th Cir. 1994) (best evidence considerations in revocation hearings)
- United States v. Howard, 953 F.2d 610 (11th Cir. 1992) (best evidence rule not applicable to testimony about monitored communications)