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
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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
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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.
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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
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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
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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
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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
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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.
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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.
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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).
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As a result of the foregoing, the judgment of the
district court is affirmed.
affirmed
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