United States v. Whalen

August 25, 1995 [NOT FOR PUBLICATION]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August 24, 1995 [NOT FOR PUBLICATION]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.

-3-

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

-4-

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

-5-

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.

-6-

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

-7-

"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

-8-

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.

-9-

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,

-10-

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

-11-

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.

-12-

(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.

-13-

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,

-14-

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.

-15-