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

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,
TORRUELLA,

Chief Judge.
Chief Judge.
___________

Appellant-defendant Archie M.

Whalen ("appellant"

revoking

court

or "Archie Whalen") appeals

his supervised release.

contends that the district

violated his due process rights in failing to make written

findings

of

discretion in

the

evidence

to

the failure

probable cause

charge.

on

which

deciding that his

erred in not dismissing

due

He

from a judgment

relied,

release should be

abused

its

revoked, and

the government's petition for revocation

to provide

to detain him

prompt hearing

pending hearing on

to determine

the revocation

We affirm the district court decision.

I.
I.

Archie

Whalen was

BACKGROUND
BACKGROUND

charged

Christina ("Christina Whalen"), by

1995, in

it

Sullivan, Maine.

with assaulting

his wife,

state authorities on June 24,

At the time of the incident that gave

rise to the

two-year

assault charge, Archie Whalen was in

term

of

supervised released

imposed

the midst of a

on

him by

federal district court in Maine on December 14, 1994.

the

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

their apartment.

Hancock

The district

County Patrol

court also heard

Sergeant Patrick

stairs to

testimony from

Kane ("Sergeant

Kane")

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

However,

left

shin.

Sergeant Kane

shin while his

testified that

report stated that

Christina Whalen

the bruises were

they were

also testified that

-2-

on her

on her right

she had previously

lied

regarding Archie

oath.

There was

Whalen had,

on

similar manner

Whalen in

also evidence

a prior

other proceedings

to

occasion,

to get her husband's

the effect

bruised her

while under

that Christina

own legs

in

supervised release revoked.

Furthermore, while the district court heard testimony from Archie

Whalen

denying that he had injured

Heidi Clement ("Clement"), a

his wife, it also heard from

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

Ultimately,

with

however,

the

the

testimony"

court

of

determined

Archie

that

the

Whalen.

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.
II.

A.
A.

The Due Process Argument

The Due Process Argument

Archie Whalen's

court

DISCUSSION
DISCUSSION

first

argument is

district

violated his due process rights in failing to make written

findings of the evidence on which it relied.

v.

that the

Brewer, 408 U.S. 471

(1972), which states

He

cites Morrissey
_________

that "the minimum

______

requirements

hearing,

of due

process," in

include "a written

the evidence relied on

489;

see also Gagnon

________ ______

(holding

that the

the context

statement by the

of

a revocation

factfinders as to

and reasons for revoking parole."

v.

Scarpelli, 411
___________

Morrissey rule
_________

-3-

U.S. 778,

applies equally

Id. at
___

786 (1973)

to probation

revocations).

Archie Whalen

court's statements

faults as inadequate

that it revoked

the district

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

have

stated

argues that

in writing

the

the evidence

district court

upon

which it

should

relied in

reaching its conclusion.

However, he never sought such a written

statement

the

argument

directly from

for the first time

district court of

issue,

and

effectively

district court.

on appeal, Whalen

the opportunity

has thus

deprived

review.

See
___

us

By making

has deprived the

to consider and

of

a ruling

United States
______________

this

rule on

which

we

the

can

v. Pilgrim Marketing
__________________

Corp., 944 F.2d 14, 21

_____

867 F.2d

(1st Cir. 1991); United States v.

_____________

36, 44 (1st Cir.

1989).

had been formulated below

the

court

to

consider

"If the

objection now raised

there would have been

it

and

rule

Curzi,
_____

opportunity for

accordingly."

Pilgrim
_______

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

_______________

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

"plain error" standard.

955, 956

(1st Cir.

whether

fundamental

miscarriage

McMahon, 938
_______

of

See United States v. Hunnewell, 891 F.2d

___ _____________
_________

1989).

fairness

justice

has

F.2d 1501, 1510

This standard

was

requires

undermined,

occurred.

See
___

(1st Cir. 1991).

find either of these concerns implicated.

and

us to

whether

ask

United States v.
______________

Here we

do not

-4-

Moreover, even if Whalen had properly preserved his due

process

argument

Virtually

"oral

for

appeal,

it would

fail

on

the

merits.

every court to have considered the issue has held that

findings,

requirements

if recorded

of Morrissey
_________

or

transcribed,

when those

can satisfy

findings create

the

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

Copeland, 20 F.3d 412,

________

circuit has

maker relied upon."

United States v.
______________

414 (11th Cir. 1994) (stating

directly held otherwise," although

stated that United States

_____________

that "[n]o

some courts have

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

_____
_____________

F.2d 916, 917 (6th

F.2d 829, 831

Cir. 1993); see United States

___ _____________

(4th Cir. 1992); United States v.

_____________

v. Gilbert, 990
_______

v. Copley, 978
______

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

preponderance

evidence that the

on

or

about

of

defendant did in

June

24,

the
fact

intentionally,

knowingly, and recklessly cause injury or

offensive physical [contact] to Christina
Whalen
law.
finding

in violation
And

so I

of the

am going

Maine state
to make

that

of a violation of the supervised

release provisions.

Furthermore,

that

he had

reviewed

the district judge

all of

the

-5-

stated on

the record

exhibits introduced

at

the

revocation

hearing.

He framed

weighing the credibility of

acknowledged

The

court

that both

concluded

the dispositive issue

as one of

Christina against Archie Whalen, and

witnesses had

that

the

problems in

government

had

that regard.

proved

by

preponderance of the evidence that Whalen had assaulted his wife,

in

violation of

conditions

of

state

his

law,

and

supervised

separate written Memorandum of

court expressly stated, as

facts as

set out

hence

release.

in

violation

Additionally,

the

in

Sentencing Judgment, the district

to its factual findings: "I

in the Report

of

of Revocation [prepared

find the

by the

probation officer]."

That report

factual

concerning

allegations

Memorandum

"the

the

forth fully

the

assault.

The

alleged

also reiterates the district court's conclusions that

defendant violated

release

in turn set

that

he

not

government had met its

assaulted Christina

the

special

commit

any

condition

new

crimes"

of

and

burden of proving that the

Whalen.

court provided "fair notice

In the

supervised

that

the

defendant had

circumstances, the district

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.
B.

Merits of the Revocation Decision

Merits of the Revocation Decision

We briefly review the burden

of proof and standard

of

review attending a

supervised release revocation proceeding

appeal therefrom.

At the district

court level, the

and

government

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

-6-

at least

one of

the

release was violated.

conditions of

the defendant's

supervised

United States v. Portalla, 985 F.2d 621,

_____________
________

622 (1st

Cir. 1993).

violation occurred,

Then,

it has

if the district court

discretion to

finds that a

revoke or modify

defendant's supervised release (except for a violation

firearms

or

revocation

appeal,

controlled

substance

is mandatory).

the

district

See
___

court's

offenses,

18 U.S.C.

decision

in

involving

which

3583(e), (g).

to

revoke

release based on its finding of a violation is reviewed

abuse of discretion.

United States v. Morin, 889

_____________
_____

the

case

On

supervised

only for

F.2d 328, 331

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

clear showing

of an

abuse of

discretion"); see also United

_________ ______

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

______
_____

contexts

where a district

action based

on its

court has discretion

findings of

fact,

And, as in other

to take certain

the court's

subsidiary

factfinding as to whether or not a violation occurred is reviewed

for clear error.

Cf.
___

(1st

(district court's

abuse

Cir. 1995)

of

discretion,

error); United States

_____________

Cir.

United States v. Winter, 70 F.3d

_____________
______

1995) (trial

underlying

contempt order

factual

court's

denial of

reviewed for

findings

v. Mart nez-Molina, 64 F.3d

_______________

motion

655, 659

for

clear

719, 732 (1st

to withdraw

plea

reviewed for abuse of discretion, subsidiary findings of fact for

clear error).

Whalen

discretion

in

argues

revoking

that

his

the

district

court

supervised release,

abused

and

that

its

it

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

-7-

the

court itself

Whalen

characterized as problematic

violated the

conditions of

his release.

problems associated with Christina Whalen's

appellant's argument

it

over

the

factfinder's

testimony

Wytrwal v.

of

discretion

to

even

though it

Saco School

finds

Bd., 70

It

portions

other portions

F.3d 165,

Whatever

the

erred in crediting

Archie Whalen.

credit

find that

testimony, we reject

that the district court

testimony

-- to

is

of

within

witness'

dubious.

171 (1st

See
___

Cir. 1995)

_______

________________

(upholding

a district

portions

of a

court's decision

witness'

to credit

testimony, despite

only certain

finding that

other

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

Cir.

1968).

Such

unique role of the

Begosian, 65
________

to

credibility

determinations

the

factfinder, see Flanders & Medeiros, Inc. v.

___ __________________________

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

upset, particularly

in

a domestic

district court's findings regarding

record,

are within

see, e.g., United States

___ ____ _____________

violence situation,

the

credibility, based on a cold

v. Bartelho, 71
________

F.3d 436, 440

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

particularities

of

domestic

discounting of alleged victim's

abuse

situations

in

justifying

denials of abuse); United States

_____________

v.

Henry, 48
_____

Bowman,

F.3d 1282,

1284-85 (same).

See generally Alana

______________

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

violence"

are "very

common

"minimizing" and "denying the

behavioral patterns

-8-

among battered

women").

Taking these

factors into account, in addition

corroboration

of

witnesses, we

conclude that the

err

Christina

in finding that Archie

alleged by the

Whalen's

statements

district court did

by

to the

other

not clearly

Whalen assaulted Christina Whalen as

government, and that the court did

discretion in revoking Whalen's supervised release.

not abuse its

-9-

C.
C.

The Probable Cause Argument

The Probable Cause Argument

Appellant also

by failing to hold

Rule

of Criminal

that

person

contends that the district

a probable cause hearing pursuant

Procedure 32.1

held in

custody

(providing, in

for

an

court erred

to Federal

relevant part,

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

proceeding shall be dismissed").

Whalen was arrested by

1995.

The

pending

a hearing

before a

issue

At this

testimony

to

of

promptly moved

judge on

Christina Whalen,

for his

matter.

he

had

1995.

judge was whether

federal

obtained

The

sole

Whalen should be

government offered

probation

officer,

who

Whalen and testified

through

her former husband, her

detention,

Whalen appeared

July 5,

preliminary hearing, the

Whalen's

exist, the

federal authorities on June 30,

alleged assault on Christina

information

not to

His argument is unavailing.

the revocation

before the magistrate

described the

as

on

federal magistrate

detained.

the

government then

is found

interviews

with

friend Heidi Clement,

and another friend.

Whalen's

The

attorney.

probation officer was cross-examined by

Based

on the

testimony

and

information

presented, the magistrate judge ordered Whalen detained.

To the

judge

extent that

the hearing before

the magistrate

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

____________________

A Rule 32.1 hearing may be held before a magistrate judge, if

the district

court provides the magistrate

to

See
___

do

so.

Fed. R.

Crim.

-10-

judge with authority

P. 32.1(a);

United States v.
______________

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

specific

question

specifically

on

July

of

probable

cause.

The

magistrate

judge

stated on the record that the only issue before him

5 was

whether Whalen

revocation hearing.

should

be detained

pending the

Whalen made no objection and did not request

a separate determination of probable cause at any time before the

revocation hearing itself.

Whalen

the

any

circumstances, we find that

waived any right to a hearing designated specifically for

purpose

ignoring

In these

of assessing

probable

cause.

Furthermore,

even

the waiver, Whalen has made no showing that he suffered

cognizable

prejudice from

hearing specifically

the

lack

designated as such.

of a

probable

cause

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

[defendant's]

"the

delay . . .

ability to

contest

prejudicially

revocation").

affected

The

the

district

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

III.
III.

CONCLUSION
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

result of

district court is affirmed.

affirmed
________

the

foregoing, the

judgment

of the

-12-