August 25, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 94-2304
UNITED STATES OF AMERICA,
Appellee,
v.
ARCHIE M. WHALEN,
Defendant, Appellant.
ERRATA SHEET
The opinion of this court issued on August 24, 1995 is
amended as follows:
On page 4, line 13: substitute "III." for "II."
On page 12, line 5: delete the first "other" to appear on
that line.
August 24, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 94-2304
UNITED STATES OF AMERICA,
Appellee,
v.
ARCHIE M. WHALEN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
Before
Torruella, Chief Judge,
Lynch, Circuit Judge,
and Casellas,* District Judge
William Maselli for defendant, appellant Archie M. Whalen.
F. Mark Terison, with whom Jay P. McCloskey, United States
Attorney, and James L. McCarthy, Assistant United States
Attorney, were on brief for the United States.
*Of the District of Puerto Rico, sitting by designation.
Per Curiam. Archie Whalen, while serving a federal
Per Curiam.
three-year term of supervised release, was arrested on state
charges of assaulting and criminally threatening his wife and
children. That arrest led to a revocation of his supervised
release by the district court and a sentence of six months
imprisonment and an additional two-year term of supervised
release. Whalen appeals, claiming that the district court's
findings were factually unsupported. We affirm.
I. Background
In August 1991, Whalen was convicted in federal
court of various firearms offenses and sentenced to a two-
year prison term, to be followed by a three-year term of
supervised release. The supervised release term began in
April 1993.1 One of the conditions of the release was that
Whalen not commit any new crimes, whether state, federal, or
local.
On October 26, 1994, the defendant was arrested in
New York on state charges resulting from a violent domestic
dispute with his wife Christina Whalen and her children.
Consequently, a petition to revoke Whalen's supervised
release was filed. The petition alleged that Whalen had
violated New York penal law by (1) threatening his wife and
her children; (2) physically assaulting his wife; and (3)
1On January 5, 1993, the custodial portion of the
sentence was reduced to 21 months, thus allowing for the
release date in April.
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attempting to contact his wife in violation of a state court
order, issued following his arrest, directing him not to do
so.
After an evidentiary hearing at which the
government presented, inter alia, sworn statements by
Christina Whalen attesting to the assault, the district court
found by a preponderance of the evidence that Archie Whalen
had committed the acts alleged and ordered that his release
be revoked.
II. Mootness
During the pendency of this appeal, Whalen
completed his prison term and resumed a term of supervised
release. Apparently, shortly after being released from his
six-month prison term, Whalen again assaulted his wife. On
July 27, 1995, the district court again revoked Whalen's
supervised release and imposed a sentence of 12 months, with
no further term of supervised release. The government now
argues that this second revocation makes the controversy over
the first revocation moot because the first revocation will
no longer have any legally significant effect on Whalen in
the future. As the government points out, however, there is
at least one set of circumstances in which the first
revocation could affect Whalen in a legally significant way.
Under the Guidelines, two criminal history points are
assessed if the defendant commits a federal offense within
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two years of his release from imprisonment on a sentence of
at least 60 days. United States Sentencing Commission,
Guidelines Manual, 4A1.1(e). A prison term served for
revocation of supervised release "may affect the points for
4A1.1(e) in respect to the recency of last release from
confinement." U.S.S.G. 4A1.2(k)(2)(A). Should the second
revocation of supervised release be vacated on appeal and
Whalen commit an offense within two years of his release date
on the first revocation, the first revocation will affect the
calculation of Whalen's release date for purposes of applying
the criminal history provisions of the Sentencing Guidelines.
Thus there could be a benefit to Whalen should the first
revocation be vacated. In light of such a potential
collateral consequence, see Carafas v. LaVallee, 391 U.S.
234, 237 (1968), the controversy is not moot.
III. Evidentiary Sufficiency
A. The Evidence
The domestic violence incident took place when the
Whalens were in their car searching for Christina Whalen's
son Robert, who had run away following a dispute with the
defendant. Embroiled in an argument with her husband,
Christina Whalen got out of the car and refused to get back
in. Archie Whalen dragged her back into the car, kicking her
over and over in the leg, and repeatedly closing the car door
on her leg and hip area. Christina Whalen was later treated
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at a local hospital emergency room for injuries suffered from
the assault. Archie Whalen was arrested. The next day a
local court ordered Archie Whalen not to have any contact
with Christina Whalen. In violation of the order, he
promptly telephoned his wife.
The key pieces of documentary evidence introduced
at the revocation hearing were:
(1) Christina Whalen's sworn statement dated
October 27, 1994 (attached to the New
York Prosecutor's Information) concerning
the events of October 26, 1994;
(2) Christina Whalen's sworn statement dated
October 28, 1994 concerning the
defendant's attempt to call her from jail
on that day; and
(3) Handwritten notes of Brenda Catterson (a
social worker for the Maine Dept. of
Human Services) concerning a phone
conversation she had with Christina
Whalen on October 27, 1994.
The district judge heard testimony from six witnesses:
(1) William Beck, Whalen's probation officer
from 1991-1994;
(2) James Gardella, Whalen's probation
officer since 1994 (when Whalen moved to
New York);
(3) Christina Whalen, the defendant's wife;
(4) Brenda Catterson, a social worker in the
Maine Child Protective Services Division
of the Maine Department of Human
Services;
(5) Marie Kelly Harding, a supervisor in the
Child Protective Services Division of the
Maine Department of Human Services; and
(6) Defendant Archie Whalen.
Because Archie Whalen claims that this evidence was not
adequate, this evidence is summarized below.
1. The October 27 Sworn Statement.
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This sworn statement by Christina Whalen describes
the assault of October 26:
On or about October 26, 1994 at around 6:15
PM, my husband Archie Whalen during an on-going
argument threatened me and my children with
physical harm or death if I didn't get in the car
with him and go looking for my son, Robert Kealy,
who had left the house earlier after having a
verbal dispute with him.
I was dragged into the vehicle by Archie
Whalen, and was repeatedly kicked in the leg by him
when I attempted to exit the vehicle. At one
point, I was able to escape from the car, and
Archie tried to pull me back into the vehicle.
During that time, Archie repeatedly closed the car
door on my leg and hip area, causing great pain and
bruising.
2. The October 28 Sworn Statement.
Christina Whalen declares in this statement that
she received a collect call from the defendant on October 27,
after he had been ordered not to contact her. When she
recognized that the call was from her husband, she "was
terrified to hear his voice and immediately hung up the
telephone."
3. Brenda Catterson's Handwritten Notes.
These notes reflect a telephone conversation
between Catterson and Christina Whalen on October 27, 1994.
Christina Whalen had left a message at the Department of
Human Services that she was having an "emergency" and wanted
someone to call back. When Catterson called, Christina
Whalen told her that she had confronted defendant about his
relationship with her daughter Melissa, and that he became
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"verbally belligerent." Her son Robert entered the room and
attempted to defend his mother and warned defendant that he
had better not harm her. The defendant responded by telling
Robert that "he'd break every bone in his body and kill all
three of them before he'd go back to prison."
4. William Beck's Testimony.
Beck, defendant's original probation officer,
received a phone call from Christina Whalen on October 27,
1994. She told him that defendant had been arrested and that
she was upset and worried about the defendant's relationship
with her children. On October 28, she called Beck again
saying that the defendant had tried to call her collect from
jail, but that she had hung up immediately upon recognizing
his voice.
5. James Gardella's Testimony.
Gardella, defendant's probation officer in New
York, learned from a local assistant district attorney on
October 27, 1994, that the defendant had been arrested. Upon
receiving the news, Gardella then interviewed Christina
Whalen and her two children. Christina Whalen told Gardella
that the defendant had kicked her and offered to show him the
bruises on her leg. She also told Gardella that she was
frightened of defendant, and was afraid of the repercussions
of having filed charges against him. Gardella asked Robert
whether Archie Whalen had ever threatened him. Robert
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replied that the defendant had indeed threatened to "break
every bone in his body." In speaking with Melissa, Gardella
learned that the defendant had offered to buy her beer, and
that he had told her that he, not her mother, was the only
person Melissa should trust.
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6. Brenda Catterson's Testimony.
Catterson's testimony basically repeated the
contents of her handwritten notes of the telephone call from
Christina Whalen on October 27, 1994.
7. Marie Kelly Harding's Testimony.
Harding testified about a conversation in March
1994, before the incident, in which Christina Whalen had
expressed that she was frightened of the defendant, that she
feared he would kill her, and that she was worried that he
might harm her children.
8. Christina Whalen's Testimony.
Christina Whalen, in testimony, recanted her prior
written statements. She testified that she believed that
Archie Whalen had not intentionally tried to injure her on
October 26, and that the bruises on her leg resulted when he
accidentally closed the car door on her leg. She said that
she had been out of control that evening, and had even told
the defendant and her daughter that she wanted to kill
herself. She testified that she had made up the story about
being assaulted only after the police officer who arrived at
the scene threatened to place her in jail and take away her
children if she failed to tell the truth about why she and
her husband were arguing. As for the defendant's attempt to
telephone her on October 27 in violation of a court order,
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she testified that she had given the defendant permission to
call, because her son Robert wanted to talk to him.
9. Defendant's Testimony.
Archie Whalen denied assaulting his wife. He
admitted threatening to "break every bone" in Robert's body,
but explained that "[i]t was a figure of speech to let him
know how serious I was about him not using drugs."
B. Reliability of the Evidence
Archie Whalen contends that because Christina
backed away at the revocation hearing from her prior sworn
statements, those sworn statements and her oral statements to
Beck, Gardella, and Catterson all lacked sufficient indicia
of reliability to form a basis for revocation. Archie Whalen
argues there was no other evidence supporting the
government's petition and so the district court's decision
should be reversed. Whalen is wrong.
The standard of proof facing the government in a
revocation proceeding is a preponderance of the evidence.
United States v. Portalla, 985 F.2d 621, 622 (1st Cir. 1993).
On appellate review, the evidence must be viewed in the light
most favorable to the government. Id. A district court's
revocation decision "will not be reversed absent a clear
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showing of an abuse of discretion." United States v. Morin,
889 F.2d 328, 331 (1st Cir. 1989).2
As Whalen appropriately concedes, the Rules of
Evidence do not apply in a revocation hearing. See Portalla,
985 F.2d at 622. The evidence relied upon by the court must
be reliable, and the district court has broad discretion to
decide questions of reliability, as well as questions of
witness credibility. Id. Here, it was more than reasonable
for the district court to conclude the evidence was reliable.
The written statements of Christina Whalen describing the
events of October 26-27, 1994 were made under oath and were
corroborated by the testimony of Beck, Gardella, and
Catterson. Cf. United States v. Zuleta-Alvarez, 922 F.2d 33,
37 (1st Cir. 1990) (holding corroborated statements made
under oath to be reliable), cert. denied, 500 U.S. 927
2As a threshold matter, it does not appear that the
defendant raised any objection based on unreliability of
evidence at the hearing. Instead, the defendant's objections
seemed to rest on relevance grounds. See, e.g., December 14,
1994 Revocation Hearing Transcript at 15 ("Your Honor, I
realize the rules of evidence don't apply here, but I would
ask the court to exercise its discretion to limit the
evidence today to information tending to prove or disprove
the violations charged in the revocation report."); see also
December 14, 1994 Revocation Hearing Transcript at 28
(arguing that Christina Whalen's sworn statements are "not
helpful" to show that the conduct occurred); December 14,
1994 Revocation Hearing Transcript at 63 (asking court to
"limit the evidence to the violations alleged"); December 14,
1994 Revocation Hearing Transcript at 65 (same).
Accordingly, the district court's conclusions may be subject
only to plain error review. We need not resolve that
question here because no error occurred.
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(1991). Furthermore, Christina Whalen verified at the
revocation hearing that the written statements were in fact
her own. Indeed, she repeated at the hearing that the
defendant had slammed a car door on her leg; she only denied
believing that he had intentionally done so. Similarly, she
never denied at the hearing that the defendant had attempted
to call her in violation of a court order on October 27; she
claimed only that she had invited him to do so.
Catterson's notes were a contemporaneous record of
an "emergency" telephone conversation with Christina Whalen,
and the contents were fully verified by Catterson's
testimony. Additionally, the statement in the notes that the
defendant had threatened to "break every bone" in Robert's
body was corroborated by the testimony of Gardella. Indeed,
the defendant himself admitted to making that statement.
Finally, Christina Whalen's recantation of her
prior written statements at the revocation hearing did not
render those sworn statements unreliable. The district court
had far-ranging latitude to credit or discredit her courtroom
testimony, and there is no basis for disturbing that
credibility determination here. See Portalla, 985 F.2d at
624. The district court was well aware that the evidence at
the hearing encompassed "a very strong mixture of truth and
fiction," and decided that the defendant had in fact
committed the violations described.
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This was far from unreasonable. The court could
sensibly have determined, for example, that Christina
Whalen's in-court change of heart concerning the alleged
assault was attributable to concern for her own safety. The
testimony of several other witnesses (particularly Gardella)
established that she feared the defendant and was
particularly afraid of retaliation for her filing of assault
charges against him. This pattern of behavior among women in
abusive relationships has been recognized in a growing body
of academic literature. See generally Eva Jefferson
Paterson, How The Legal System Responds to Battered Women, in
Battered Women 79, 86 (Donna M. Moore ed., 1979) (many women
change their minds about pressing charges out of fear of
further violence from the assailant); see also Lenore E.
Walker, The Battered Woman Syndrome (1984) (analyzing the
psychological characteristics of women in abusive
relationships). The district court clearly did not abuse its
discretion in concluding that "there is no way . . . that
Christina Whalen could make this scenario up out of whole
cloth, and particularly with the background evidence that is
here to support it."
The record, viewed in the light most favorable to
the government, amply demonstrates that the district court
did not abuse its discretion in revoking defendant's
supervised release. See United States v. Gallo, 20 F.3d 7,
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14 (1st Cir. 1994) ("[I]t is enough if the proof, reasonably
viewed, satisfies the court that a violation occurred.").
Finally, the defendant argues in rather cursory
fashion that the district court failed adequately to disclose
in its ruling the precise basis for his revocation decision.
This argument is without merit. The district court explained
its ruling from the bench. The court clearly announced its
conclusion that the defendant had committed all of the
violations of New York penal law alleged in the revocation
petition, namely: "that the defendant did in fact threaten
his wife and children, whether he meant it or not, and that
he did in fact cause his wife to be assaulted and he did in
fact telephone his wife in violation of the order of
protection." This clear statement, preceded by an
elaboration of the court's interpretation of the evidence
that had been presented, gave the defendant ample notice of
the reasons that his supervised release was being revoked.
Affirmed.
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