United States of America, Plaintiff-appellee, v. Luther Eugene Friend, Jr., Defendant-appellant, 50 F.3d 8 (4th Cir. 1995)

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U.S. Court of Appeals for the Fourth Circuit - 50 F.3d 8 (4th Cir. 1995)

Submitted: January 24, 1995Decided: February 21, 1995

John P. Fishwick, Jr., Fishwick, Jones & Glenn, Roanoke, VA, for Appellant.

Robert P. Crouch, Jr., United States Attorney, Jennie M. Waering, Assistant United States Attorney, Roanoke, VA, for Appellee.

Before HALL, MURNAGHAN, and MICHAEL, Circuit Judges.


Luther Friend appeals from a district court judgment revoking his supervised release. We affirm.

Friend first complains that the evidence was insufficient to support the revocation. All that is required to support the revocation is evidence proven by a preponderance that Friend violated the terms of his release. 18 U.S.C.A. Sec. 3583(e) (3) (West Supp.1994). This Court reviews that determination for abuse of discretion. See United States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992). In the face of Friend's denial, the district court was provided evidence that (1) Friend was caught on his way out of a store with merchandise for which he had no receipts; (2) Friend could not identify any cashier in the store as the one who rang up his "purchases"; and (3) Friend attempted to get his ex-wife to perjure herself and state that she had left with the receipts. We find this evidence sufficient to support the district court's judgment that Friend violated the conditions of his release. The district court, therefore, did not abuse its discretion in revoking Friend's supervised release.

Friend also complains that the district court wrongly denied his motion for a second continuance. We review the district court's denial for abuse of discretion by the court and prejudice to the defendant. United States v. Bakker, 925 F.2d 728, 735 (4th Cir. 1991). Friend feared that his testimony at the revocation hearing would be used against him during his state trial for shoplifting. This provided no basis for a continuance, and we can discern no prejudice from the ruling. Therefore, we affirm the district court judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.