
USCA1 Opinion

	




          August 25, 1995       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE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           August 24, 1995       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE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-
