UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4486

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

NICHOLAS PITTARELLI,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Charlottesville. Norman K. Moon, District

Judge. (3:04-cr-00039-001)

Submitted: December 4, 2006 Decided: December 21, 2006

Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY,

Charlottesville, Virginia, for Appellant. John L. Brownlee, United

States Attorney, Jean B. Hudson, Assistant United States Attorney,

Charlottesville, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Nicholas Pittarelli appeals the district court’s order

revoking his supervised release. Pittarelli contends the district

court erred in finding that he violated the conditions of his

supervised release and that the court’s ex parte meeting with the

probation officer violated his constitutional rights. We affirm.

We review the district court’s decision to revoke a

defendant’s supervised release for abuse of discretion. United

States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992). The district

court need only find a violation of a condition of supervised

release by a preponderance of the evidence. 18 U.S.C. § 3583(e)(3)

(2000). After reviewing the materials in the joint appendix, we

conclude the district court did not abuse its discretion in finding

by a preponderance of the evidence that Pittarelli violated the

terms of his supervised release. It is evident that the district

court weighed the contradictory testimony and decided to credit the

probation officer’s version over Pittarelli’s. It is not the

province of this court to second-guess the credibility

determinations of the factfinder. United States v. Saunders, 886

F.2d 56, 60 (4th Cir. 1989).

Pittarelli also contends that the district court’s ex

parte meeting with the probation officer prior to the revocation

hearing violated his constitutional rights. The materials in the
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joint appendix do not reflect that such a meeting occurred, but the

Government assumes for the sake of argument that one took place.

Because Pittarelli raises this issue for the first time

on appeal, review is for plain error. See United States v. White,

405 F.3d 208, 215 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005).

To establish plain error, Pittarelli must show that an error

occurred, that the error was plain, and that the error affected his

substantial rights. Id. A probation officer is “a neutral,

information-gathering agent of the court, not an agent of the

prosecution.” United States v. Johnson, 935 F.2d 47, 50 (4th Cir.

1991) (approving pre-sentence, ex parte meetings and describing

these communications as “nonadversarial”). The probation officer’s

activities here were akin to preparing a presentence report and

discussing the report with the court prior to initial sentencing,

a practice we approved in Johnson. In any event, because

Pittarelli is unable to show any bias or prejudice resulting from

the communication, he cannot show plain error.

Accordingly, we deny Pittarelli’s motion to supplement

the reply brief, deny his motion to proceed pro se, and affirm the

district court’s revocation of his supervised release. 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.

AFFIRMED