United States v. Whalen

Opinion

USCA1 Opinion

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
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          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.


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                                    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
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          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
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          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.
                        ___                               ______________



                                         -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).
          ________



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As  a  result of  the  foregoing, the  judgment  of the



          district court is affirmed.
                            affirmed
                            ________


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