United States v. Whalen

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1816

UNITED STATES,

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,

Cyr and Lynch, Circuit Judges.

Mark A. Perry, by Appointment of the Court, with whom

Archer, Perry & Jordan, P.A., was on brief for appellant.

F. Mark Terison, Assistant United States Attorney, with whom

Jay P. McCloskey, United States Attorney, and James L. McCarthy,

Assistant United States Attorney, were on brief for appellee.

April 25, 1996

TORRUELLA, Chief Judge. Appellant-defendant Archie M.
TORRUELLA, Chief Judge.

Whalen ("appellant" or "Archie Whalen") appeals from a judgment

revoking his supervised release. He contends that the district

court violated his due process rights in failing to make written

findings of the evidence on which it relied, abused its

discretion in deciding that his release should be revoked, and

erred in not dismissing the government's petition for revocation

due to the failure to provide a prompt hearing to determine

probable cause to detain him pending hearing on the revocation

charge. We affirm the district court decision.

I. BACKGROUND
I. BACKGROUND

Archie Whalen was charged with assaulting his wife,

Christina ("Christina Whalen"), by state authorities on June 24,

1995, in Sullivan, Maine. At the time of the incident that gave

rise to the assault charge, Archie Whalen was in the midst of a

two-year term of supervised released imposed on him by the

federal district court in Maine on December 14, 1994. During the

resulting revocation hearing before the district court, Christina

Whalen testified that her husband inflicted bruises on her left

leg when he grabbed her and dragged her up a flight of stairs to

their apartment. The district court also heard testimony from

Hancock County Patrol Sergeant Patrick Kane ("Sergeant Kane")

that he had seen her bruises two days after the incident alleged.

However, Sergeant Kane testified that the bruises were on her

left shin while his report stated that they were on her right

shin. Christina Whalen also testified that she had previously

-2-

lied regarding Archie Whalen in other proceedings while under

oath. There was also evidence to the effect that Christina

Whalen had, on a prior occasion, bruised her own legs in a

similar manner to get her husband's supervised release revoked.

Furthermore, while the district court heard testimony from Archie

Whalen denying that he had injured his wife, it also heard from

Heidi Clement ("Clement"), a co-worker of Christina Whalen's, to

whom he stated that he "was wrong to have hurt her."

The district court acknowledged that Christina Whalen

"played fast and loose with the truth" and that there was also "a

lot of problems with the testimony" of Archie Whalen.

Ultimately, however, the court determined that the record

established by a preponderance of the evidence that Archie Whalen

violated the terms of his supervised release by committing the

state crime of assault against his wife.

II. DISCUSSION
II. DISCUSSION

A. The Due Process Argument
A. The Due Process Argument

Archie Whalen's first argument is that the district

court violated his due process rights in failing to make written

findings of the evidence on which it relied. He cites Morrissey

v. Brewer, 408 U.S. 471 (1972), which states that "the minimum

requirements of due process," in the context of a revocation

hearing, include "a written statement by the factfinders as to

the evidence relied on and reasons for revoking parole." Id. at

489; see also Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973)

(holding that the Morrissey rule applies equally to probation

-3-

revocations). Archie Whalen faults as inadequate the district

court's statements that it revoked his release term because he

committed a state crime by assaulting his wife, and that it found

the facts to be as set forth in the Report of Revocation prepared

by Whalen's probation officer.

Archie Whalen argues that the district court should

have stated in writing the evidence upon which it relied in

reaching its conclusion. However, he never sought such a written

statement directly from the district court. By making this

argument for the first time on appeal, Whalen has deprived the

district court of the opportunity to consider and rule on the

issue, and has thus deprived us of a ruling which we can

effectively review. See United States v. Pilgrim Marketing

Corp., 944 F.2d 14, 21 (1st Cir. 1991); United States v. Curzi,

867 F.2d 36, 44 (1st Cir. 1989). "If the objection now raised

had been formulated below there would have been opportunity for

the court to consider it and rule accordingly." Pilgrim

Marketing Corp., 944 F.2d at 21.

As a result, we consider appellant's argument under the

"plain error" standard. See United States v. Hunnewell, 891 F.2d

955, 956 (1st Cir. 1989). This standard requires us to ask

whether fundamental fairness was undermined, and whether a

miscarriage of justice has occurred. See United States v.

McMahon, 938 F.2d 1501, 1510 (1st Cir. 1991). Here we do not

find either of these concerns implicated.

-4-

Moreover, even if Whalen had properly preserved his due

process argument for appeal, it would fail on the merits.

Virtually every court to have considered the issue has held that

"oral findings, if recorded or transcribed, can satisfy the

requirements of Morrissey when those findings create a record

sufficiently complete to advise the parties and the reviewing

court of the reasons for the revocation of supervised release and

the evidence the decision maker relied upon." United States v.

Copeland, 20 F.3d 412, 414 (11th Cir. 1994) (stating that "[n]o

circuit has directly held otherwise," although some courts have

stated that United States v. Lacey, 648 F.2d 441, 445 (5th Cir.

1981), holds that written statements are required notwithstanding

the availability of a transcript of the court's findings, "based

on a misinterpretation of Lacey"); United States v. Gilbert, 990

F.2d 916, 917 (6th Cir. 1993); see United States v. Copley, 978

F.2d 829, 831 (4th Cir. 1992); United States v. Barth, 899 F.2d

199, 201-02 (2d Cir. 1990); United States v. Yancey, 827 F.2d 83,

89 (7th Cir. 1987), cert. denied, 485 U.S. 967 (1988). The

transcript of the district court's ruling stated that it was

persuaded by a preponderance of the
evidence that the defendant did in fact
on or about June 24, intentionally,
knowingly, and recklessly cause injury or
offensive physical [contact] to Christina
Whalen in violation of the Maine state
law. And so I am going to make that
finding of a violation of the supervised
release provisions.

Furthermore, the district judge stated on the record

that he had reviewed all of the exhibits introduced at the

-5-

revocation hearing. He framed the dispositive issue as one of

weighing the credibility of Christina against Archie Whalen, and

acknowledged that both witnesses had problems in that regard.

The court concluded that the government had proved by a

preponderance of the evidence that Whalen had assaulted his wife,

in violation of state law, and hence in violation of the

conditions of his supervised release. Additionally, in a

separate written Memorandum of Sentencing Judgment, the district

court expressly stated, as to its factual findings: "I find the

facts as set out in the Report of Revocation [prepared by the

probation officer]." That report in turn set forth fully the

factual allegations concerning the alleged assault. The

Memorandum also reiterates the district court's conclusions that

"the defendant violated the special condition of supervised

release that he not commit any new crimes" and that the

government had met its burden of proving that the defendant had

assaulted Christina Whalen. In the circumstances, the district

court provided "fair notice to the defendant of the reasons for

the revocation . . . [and] an adequate record from which to build

an appeal." Morrissey, 408 U.S. at 490. There was no violation

of Whalen's due process rights.

B. Merits of the Revocation Decision
B. Merits of the Revocation Decision

We briefly review the burden of proof and standard of

review attending a supervised release revocation proceeding and

appeal therefrom. At the district court level, the government

has the burden of proving by a preponderance of the evidence that

-6-

at least one of the conditions of the defendant's supervised

release was violated. United States v. Portalla, 985 F.2d 621,

622 (1st Cir. 1993). Then, if the district court finds that a

violation occurred, it has discretion to revoke or modify the

defendant's supervised release (except for a violation involving

firearms or controlled substance offenses, in which case

revocation is mandatory). See 18 U.S.C. 3583(e), (g). On

appeal, the district court's decision to revoke supervised

release based on its finding of a violation is reviewed only for

abuse of discretion. United States v. Morin, 889 F.2d 328, 331

(1st Cir. 1989) (revocation decision "will not be reversed absent

a clear showing of an abuse of discretion"); see also United

States v. Gallo, 20 F.3d 7, 13 (1st Cir. 1994). And, as in other

contexts where a district court has discretion to take certain

action based on its findings of fact, the court's subsidiary

factfinding as to whether or not a violation occurred is reviewed

for clear error. Cf. United States v. Winter, 70 F.3d 655, 659

(1st Cir. 1995) (district court's contempt order reviewed for

abuse of discretion, underlying factual findings for clear

error); United States v. Mart nez-Molina, 64 F.3d 719, 732 (1st

Cir. 1995) (trial court's denial of motion to withdraw plea

reviewed for abuse of discretion, subsidiary findings of fact for

clear error).

Whalen argues that the district court abused its

discretion in revoking his supervised release, and that it

clearly erred in relying on Christina Whalen's testimony -- which

-7-

the court itself characterized as problematic -- to find that

Whalen violated the conditions of his release. Whatever the

problems associated with Christina Whalen's testimony, we reject

appellant's argument that the district court erred in crediting

it over the testimony of Archie Whalen. It is within a

factfinder's discretion to credit portions of a witness'

testimony even though it finds other portions dubious. See

Wytrwal v. Saco School Bd., 70 F.3d 165, 171 (1st Cir. 1995)

(upholding a district court's decision to credit only certain

portions of a witness' testimony, despite finding that other

portions were fabrications); NLRB v. Izzi, 395 F.2d 241, 243 (1st

Cir. 1968). Such credibility determinations are within the

unique role of the factfinder, see Flanders & Medeiros, Inc. v.

Begosian, 65 F.3d 198, 204 n.4 (1st Cir. 1995), and we are loath

to upset, particularly in a domestic violence situation, the

district court's findings regarding credibility, based on a cold

record, see, e.g., United States v. Bartelho, 71 F.3d 436, 440

(taking into account, in reviewing finding of probable cause, the

particularities of domestic abuse situations in justifying

discounting of alleged victim's denials of abuse); United States

v. Henry, 48 F.3d 1282, 1284-85 (same). See generally Alana

Bowman, A Matter of Justice: Overcoming Juror Bias in

Prosecutions of Batterers Through Expert Witness Testimony of the

Common Experiences of Battered Women, 2 S. Cal. Rev. L. & Women's

Stud. 219, 245 (1992) (noting that "minimizing" and "denying the

violence" are "very common behavioral patterns among battered

-8-

women"). Taking these factors into account, in addition to the

corroboration of Christina Whalen's statements by other

witnesses, we conclude that the district court did not clearly

err in finding that Archie Whalen assaulted Christina Whalen as

alleged by the government, and that the court did not abuse its

discretion in revoking Whalen's supervised release.

-9-

C. The Probable Cause Argument
C. The Probable Cause Argument

Appellant also contends that the district court erred

by failing to hold a probable cause hearing pursuant to Federal

Rule of Criminal Procedure 32.1 (providing, in relevant part,

that a person held in custody for an alleged violation of

supervised release conditions is entitled to a "prompt hearing"

to determine probable cause to detain the person for a revocation

hearing, and "[i]f probable cause is found not to exist, the

proceeding shall be dismissed"). His argument is unavailing.

Whalen was arrested by federal authorities on June 30,

1995. The government then promptly moved for his detention,

pending a hearing on the revocation matter. Whalen appeared

before a federal magistrate judge on July 5, 1995. The sole

issue before the magistrate judge was whether Whalen should be

detained. At this preliminary hearing, the government offered

the testimony of Whalen's federal probation officer, who

described the alleged assault on Christina Whalen and testified

as to information he had obtained through interviews with

Christina Whalen, her former husband, her friend Heidi Clement,

and another friend. The probation officer was cross-examined by

Whalen's attorney. Based on the testimony and information

presented, the magistrate judge ordered Whalen detained.

To the extent that the hearing before the magistrate

judge was not sufficient to satisfy Rule 32.1,1 Whalen should be

1 A Rule 32.1 hearing may be held before a magistrate judge, if
the district court provides the magistrate judge with authority
to do so. See Fed. R. Crim. P. 32.1(a); United States v.

-10-

deemed to have waived his rights to any additional hearing on the

specific question of probable cause. The magistrate judge

specifically stated on the record that the only issue before him

on July 5 was whether Whalen should be detained pending the

revocation hearing. Whalen made no objection and did not request

a separate determination of probable cause at any time before the

revocation hearing itself. In these circumstances, we find that

Whalen waived any right to a hearing designated specifically for

the purpose of assessing probable cause. Furthermore, even

ignoring the waiver, Whalen has made no showing that he suffered

any cognizable prejudice from the lack of a probable cause

hearing specifically designated as such. Cf. United States v.

Wickham, 618 F.2d 1307 (9th Cir. 1979) (for defendant to succeed

in making a "promptness" challenge to a revocation proceeding, he

must show that "the delay . . . prejudicially affected the

[defendant's] ability to contest revocation"). The district

court did not err in refusing to dismiss the revocation petition.

III. CONCLUSION
III. CONCLUSION

Although we realize that district judges are overworked

and pressed for time, we urge as much detail as possible in their

rulings revoking supervised release, consistent with the dictates

of Morrissey. In this case, however, we find that Whalen's due

process rights were not violated, that the district court did not

abuse its discretion in revoking Whalen's supervised release, and

that there was no cognizable violation of Fed. R. Crim. P. 32.1.

Williams, 919 F.2d 266, 270 (5th Cir. 1990).

-11-

As a result of the foregoing, the judgment of the

district court is affirmed.
affirmed

-12-