United States v. Carthen, No. 10-4817 (2d Cir. 2012)
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Defendant appealed from the adoption by the district court of a magistrate judge's report and recommendation to revoke his supervised release for violating a mandatory condition of supervision that he "shall not commit another federal, state, or local crime." Defendant principally disputed the district court's determination that, under Federal Rule of Criminal Procedure 32.1, good cause existed to allow the government to introduce hearsay evidence during his Violation of Supervised Release (VOSR) hearing. The court held that defendant was not deprived of his constitutional right to confront and cross-examine adverse witnesses; the evidence presented at the VOSR hearing was sufficient to support the district court's finding that defendant committed felony assault under New York law; and the district court did not err in denying defendant's request to reopen the VOSR hearing.
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10-4817-cr United States v. Carthen 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2011 4 (Argued: August 24, 2011 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Decided: May 23, 2012) Docket No. 10-4817-cr - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - UNITED STATES OF AMERICA, Appellee, v. TYRONE L. CARTHEN, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B e f o r e: WINTER, McLAUGHLIN, and CABRANES, Circuit Judges. 20 Appeal from the adoption by the United States District Court 21 for the Eastern District of New York (Dora L. Irizarry, Judge) of 22 a magistrate judge s (John M. Azrack, Magistrate Judge)report and 23 recommendation to revoke appellant s supervised release for 24 violating a mandatory condition of supervision that he shall not 25 commit another federal, state, or local crime. 26 principally disputes the district court s determination that, 27 under Federal Rule of Criminal Procedure 32.1, good cause existed 28 to allow the government to introduce hearsay evidence during his 29 Violation of Supervised Release hearing. 1 Appellant We affirm. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 EDWARD S. ZAS, of counsel, Federal Defenders of New York, Inc., New York, New York, for DefendantAppellant. TYLER J. SMITH, Assistant United States Attorney, of counsel (Susan Corkery, Assistant United States Attorney, of counsel) on the brief for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, New York, for Defendant-Appellee. WINTER, Circuit Judge: Tyrone L. Carthen appeals from Judge Irizarry s adoption of 17 Magistrate Judge Azrack s report and recommendation ( R & R ). 18 The R & R recommended revocation of appellant s supervised 19 release because he violated a mandatory condition of his 20 supervision, namely that he shall not commit another federal, 21 state or local crime. 22 actions against Marquita Cox ( Marquita ), appellant s ex- 23 girlfriend and the mother of three of his children. 24 primarily claims a violation of the Confrontation Clause and 25 challenges the district court s determination that, under Federal 26 Rule of Criminal Procedure 32.1, good cause existed to allow the 27 government to rely principally upon hearsay evidence in his 28 Violation of Supervised Release ( VOSR ) hearing. The revocation stems from appellant s Appellant We affirm. 29 BACKGROUND 30 On February 26, 2010, after serving a twenty-two month 31 prison sentence for the possession of a firearm by a convicted 32 felon under 18 U.S.C. §§ 922(g)(1) and 924(a)(2), appellant was 2 1 released from a halfway house in Brooklyn, New York to begin a 2 three-year term of supervised release. 3 Probation Officer Darcy A. Zavatsky learned that appellant might 4 have violated the conditions of his supervised release when 5 appellant reported to the probation department with a Temporary 6 Order of Protection and Family Offense Petition that Marquita had 7 filed against him. 8 9 On April 5, 2010, Senior Zavatsky conducted an investigation and was the sole witness at appellant s VOSR hearing. Zavatsky s testimony described 10 statements made to her in a series of interviews with various 11 individuals, statements in various police or court documents, and 12 other corroborating evidence. 13 On April 27, 2010, the government filed the VOSR Report 14 charging appellant with two counts of violating the mandatory 15 condition of supervision that he not commit another federal, 16 state or local crime : 17 and/or attempted assault (a felony crime of violence), and (ii) 18 conduct constituting assault, attempted assault, aggravated 19 harassment, menacing, reckless endangerment and/or harassment (a 20 misdemeanor offense). (i) conduct constituting felony assault 21 Based on interviews conducted with Marquita, Zavatsky 22 testified that, on the date of his release, appellant arrived at 23 the apartment in which Marquita was staying with her then 24 boyfriend, Manuel Joyner. 25 and threw her against a wall, choking her until she nearly lost Appellant grabbed Marquita s throat 3 1 consciousness. Appellant demanded to know the whereabouts of 2 Joyner, who was hiding in the bathroom. 3 wanted to put a bird cage over [Marquita s] head, which she 4 interpreted to mean that he wanted to break her face. 5 ran to the bathroom in which Joyner was hiding and held the door 6 closed from the outside. 7 with a pair of scissors and, in the process, punctured her skin, 8 ultimately causing a small scar that was observed by Zavatsky. 9 Marquita was able to diffuse the situation by convincing Appellant stated that he Marquita Appellant jabbed at Marquita s hands 10 appellant she was no longer in a relationship with Joyner. 11 Marquita recounted the stabbing in a sworn Family Offense 12 Petition later filed in Family Court. 13 Zavatsky testified further about events that took place on 14 March 15, 2010, based on interviews with Marquita, Joyner, their 15 friend Takima Booker ( Booker ), and Marquita s mother Nancy Cox 16 ( Nancy ), who were at Nancy's home that day. 17 outside, began calling Marquita continuously on her cell phone to 18 ask her to go outside to speak to him. 19 concern that appellant would harm Marquita, convinced her to stay 20 inside. 21 appellant to leave and remind him that he was not welcome at her 22 home. 23 who responded to the scene and filed a Domestic Incident Report 24 with the 71st precinct recounting Marquita s statement that 25 appellant verbally harassed her by means of yelling and 26 screaming and knocking on [her mother s] door. Appellant, lurking Nancy and Booker, out of Nancy then went into the hallway of her residence to ask When appellant refused to leave, Nancy called the police, 4 1 Based on interviews with Marquita and Booker about events 2 that took place on March 21, 2010, Zavatsky testified, and stated 3 in the VOSR Report, that appellant called Marquita repeatedly and 4 waited for her at her apartment building, confronting her and 5 Booker as they returned. 6 Marquita s cell phones to prevent them from calling anyone, 7 yelled and cursed at Marquita, accused Marquita of lying about 8 where she had been all day, grabbed Marquita around the throat 9 with one hand, choked her, and forced her head into a door. Appellant seized both Booker s and 10 Appellant also slapped Marquita in the face, ripped off her wig, 11 and knocked her pocketbook out of her hands. 12 Appellant convinced Marquita to return to her apartment with 13 him. Marquita, frightened, asked Booker to accompany them. 14 Zavatsky testified that once in the apartment, appellant again 15 grabbed Marquita around the throat tightly and pressed his fist 16 up against her cheek with force. 17 room at the time, did not witness this attack firsthand, but she 18 confirmed that Marquita told her about it and that she had 19 observed additional red marks on Marquita s face and neck. 20 When Booker s father called her cell phone later that Booker, who was in a different 21 evening, appellant returned it to her. 22 to leave the apartment to meet Booker s father. 23 concerned Marquita was actually planning to meet Joyner, refused 24 to let them leave alone, and insisted on accompanying them. 25 Appellant repeatedly stated that he would beat Marquita like 26 [she] was a man if he saw Joyner on the street. 5 Booker and Marquita asked Appellant, 1 After about an hour, appellant, Marquita, and Booker 2 returned to the apartment and the women began to plan an escape 3 from appellant. 4 the apartment to take Marquita s children to school, after which 5 they met Nancy and recounted to her the events from the prior 6 evening. 7 on Marquita. 8 women. 9 Early the next morning, Marquita and Booker left Nancy called Victim Services and reported the assault Marquita willingly went to a shelter for battered On March 23, 2010, Marquita filed a sworn Family Offense 10 Petition in Kings County Family Court and was issued a temporary 11 order of protection, which was followed by a two-year permanent 12 order of protection on April 13, 2010. 13 violated the order of protection or otherwise bothered Marquita 14 since its entry. 15 Appellant has not As noted, Zavatsky gave the testimony described above based 16 on: 17 Nancy; (ii) Marquita s Family Offense Petition; (iii) the police 18 Domestic Incident Report; and (iv) Zavatsky s observation of a 19 scar on Marquita s right hand. 20 witnesses. 21 (i) the interviews conducted with Marquita, Booker, and The government called no other We turn now to the evidence regarding the absence of 22 witnesses with personal knowledge of relevant events. Zavatsky 23 testified that on April 8, 2010, Marquita recounted appellant s 24 abusive behavior as described above and agreed to testify at the 25 VOSR hearing. 26 informed Zavatsky that she no longer wished to cooperate because However, during subsequent interviews, Marquita 6 1 she did not want to be responsible for sending appellant back to 2 jail. 3 an Assistant United States Attorney that she would not testify 4 and that she would risk going to jail if she were called to 5 testify and refused. 6 minimize appellant s conduct by stating that she had exaggerated 7 some of the details in the Family Offense Petition. 8 expressed the wish that she had just taken the ass whipping and 9 not reported what happened. On the day of the hearing Marquita stated to Zavatsky and In these statements, she sought to She also 10 The R & R rejected appellant s Confrontation Clause 11 arguments and recommended revocation of appellant s supervised 12 release. 13 appellant s interest in cross-examining the hearsay declarants; 14 (ii) the government s reasons for not producing witnesses with 15 personal knowledge of relevant events; and (iii) the reliability 16 of the proffered hearsay, see United States v. Williams, 443 F.3d 17 35, 45 (2d Cir. 2006), the district court adopted the R & R and 18 determined that good cause existed under Rule 32.1(b)(2) to 19 allow the hearsay testimony, United States v. Carthen, No. 10-CR- 20 319, 2010 WL 4313384 (E.D.N.Y. Oct. 25, 2010). 21 On October 25, 2010, after explicitly considering: (i) On October 28, 2010, Marquita submitted a letter to the 22 court stating that she lied on Mr. Tyrone Carthen, that 23 appellant never put his hands on [her], and that she just 24 [does not] want Mr. Carthen to have to spend any more time in 25 jail because of [her]. Based on this letter, appellant filed a 7 1 motion to reopen the VOSR hearing, which the district court 2 denied. 3 On November 5, 2010, the district court sentenced appellant, 4 on each count (concurrently), to eighteen months imprisonment, 5 followed by eighteen months of supervised release. 6 was based on a Grade A violation of supervised release and a 7 Criminal History Category of III. 8 9 The sentence On appeal, appellant argues that the district court erred in: (i) admitting unreliable hearsay without good cause; (ii) 10 finding that appellant engaged in felonious conduct that 11 constitutes a Grade A violation of supervised release; and 12 (iii) failing to reopen the hearing in light of Marquita s 13 recantation. 14 15 16 DISCUSSION a) Good Cause for Admitting Hearsay Revocation proceedings are not deemed part of a criminal 17 prosecution, and, therefore, defendants in such proceedings are 18 not entitled to the full panoply of rights that criminal 19 defendants generally enjoy. 20 480 (1972). 21 hearsay evidence do not strictly apply, see, e.g., Williams, 443 22 F.3d at 45; United States v. Aspinall, 389 F.3d 332, 342-43 (2d 23 Cir. 2004), abrogation on other grounds recognized by United 24 States v. Fleming, 397 F.3d 95, 99 n.5 (2d Cir. 2005); United 25 States v. Chin, 224 F.3d 121, 124 (2d Cir. 2000), and at a VOSR 26 hearing, the alleged violation of supervised-release need only be Morrissey v. Brewer, 408 U.S. 471, The Confrontation Clause prohibitions against 8 1 proven by a preponderance of the evidence, not beyond a 2 reasonable doubt, see United States v. McNeil, 415 F.3d 273, 277 3 (2d Cir. 2005). 4 confront and cross-examine adverse witnesses (unless the [court] 5 specifically finds good cause for not allowing confrontation). 6 Morrissey, 408 U.S. at 489; see also Fed. R. Crim. P. 7 32.1(b)(2)(C) (defendants must have an opportunity to question 8 adverse witnesses unless the court determines that the interest 9 of justice does not require the witness to appear ). 10 In a VOSR hearing, a defendant has the right to A proffered hearsay statement that falls within an 11 established exception is of course admissible in a VOSR hearing. 12 For statements that would be inadmissible under the Federal Rules 13 of Evidence, a determination of good cause requires the court 14 to balance the defendant s interest in confronting the 15 declarant[] against[] . . . the government s reasons for not 16 producing the witness and the reliability of the proffered 17 hearsay. 18 entitled to little weight if the defendant caused the declarant s 19 absence by way of intimidation. 20 Williams, 443 F.3d at 45. The defendant s interest is Id. We review a district court s balancing of the Rule 32.1 21 factors for abuse of discretion. Id. at 46. [A] district court 22 abuses or exceeds the discretion accorded to it when (1) its 23 decision rests on an error of law (such as application of the 24 wrong legal principle) or a clearly erroneous factual finding, or 25 (2) its decision . . . cannot be located within the range of 26 permissible decisions. United States v. Jones, 299 F.3d 103, 9 1 112 (2d Cir. 2002) (quoting Zervos v. Verizon N.Y., Inc., 252 2 F.3d 163, 169 (2d Cir. 2001)(internal quotation marks 3 omitted)(omission in original)). 4 In balancing the various interests under Rule 32.1, the 5 district court acknowledged appellant s strong interest in 6 confronting Marquita. 7 government s reason for not calling her was reasonable in that 8 she repeatedly refused to testify. 9 found that the hearsay evidence was reliable as a whole. However, the court also concluded that the Finally, the district court We 10 conclude that the finding of good cause for the admission of the 11 hearsay statements was amply supported. 12 For purposes of analysis, the reasonableness of the 13 government s not calling Marquita at the VOSR hearing turns in 14 large part on weighing the reliability of her earlier statements 15 regarding domestic abuse against her desire not to testify as 16 expressed just prior to the hearing. 17 significant indicia of reliability. 18 interviews with Marquita, as well as interviews with Booker and 19 Nancy. 20 a scar on Marquita s right hand consistent with the wound 21 Marquita had described in her account of the events of February 22 26, 2010, in which appellant stabbed her right hand with a 23 scissor blade. 24 evidence in the NYPD Domestic Incident Report, Marquita s Family 25 Offense Petition, the temporary and permanent orders of 26 protection, and the fact that Marquita sought protection from 27 appellant at a shelter for victims of domestic violence. The earlier statements bore Zavatsky had conducted six Their stories corroborated each other. Zavatsky observed The district court found additional corroborating 10 1 The hearsay portions of this evidence were detailed, 2 credible, and sometimes under oath. 3 chat. 4 court order that was admissible as an official record, see Fed. 5 R. Evid. 803(8) (public records exception); the scar that was 6 personally observed by Zavatsky; and Marquita s report to the 7 shelter that was not hearsay under Fed. R. Evid. 801(a) because 8 it was not intended as an assertion. 9 They were not idle chit- They were also corroborated by other evidence, including a Also, Marquita s expressed desire not to testify was not an 10 unusual reaction by a victim of domestic abuse. 11 sought at that time not to testify and to minimize the extent of 12 that abuse, she actually confirmed the truth of her earlier 13 statements in saying that she should have just taken the ass 14 whipping. 15 And, while she We have held that good cause justifying the absence of a 16 declarant exists when a defendant has a history of violent 17 conduct [that] ma[kes] reprisal against [the declarant] a 18 possibility. 19 Jackson, 347 Fed. App x 701, 703 (2d Cir. 2009), cert. denied, 20 130 S. Ct. 1544 (2010), we found good cause not to call an 21 assault victim to testify after she had recanted her original 22 accusations because she had previously offered a sworn and 23 recorded account of her assault, and additional independent 24 evidence corroborated her original statements. 25 United States v. Hall, 419 F.3d 980, 988 n.6 (9th Cir. 2005) 26 (noting well recognized difficulty of securing cooperation of 27 domestic violence victims and that most common reason for Jones, 299 F.3d at 113. 11 In United States v. Id.; see also 1 dismissal of domestic violence crimes is non-cooperation of 2 victims); United States v. Martin, 382 F.3d 840, 846 (8th Cir. 3 2004) (holding hearsay statements of rape victim admissible where 4 she refused to testify and statements were corroborated by other 5 evidence). 6 Finally, as in Jones, appellant has a history of violence. 7 Appellant was previously arrested for a number of charges related 8 to violence against the mother of his two oldest children. 9 to that, appellant had been convicted of misdemeanor assault on a 10 Prior female and misdemeanor simple assault. 11 Regarding the failure to call Booker and Nancy, the 12 government asserts that it expected Nancy to refuse to testify 13 because she would align with her daughter out of loyalty. 14 Moreover, the government believed her testimony to be of less 15 importance than Marquita s because the only pertinent event of 16 which she had first-hand knowledge was the incident on March 15, 17 2010, which was already detailed in the NYPD report. 18 government further argues that it believed Booker to be in 19 Delaware, which, it argued, was enough for a finding of good 20 cause. 21 Nancy to testify, the failure to pursue them does not fatally 22 undermine the finding of good cause given the strength of the 23 record viewed as a whole. 24 The Although it would have been preferable to ask Booker or Thus, the district court did not abuse its discretion in 25 balancing the interests under Rule 32.1. 26 was not deprived of his constitutional right to confront and 27 cross-examine adverse witnesses. 12 Accordingly, appellant 1 b) Finding of Felonious Conduct 2 Appellant argues that the government presented legally 3 insufficient evidence to prove assault in the second degree or 4 attempted assault in the second degree -- the two felonies 5 enumerated in Count 1 of the Violation Report. 6 concedes that the evidence presented at the VOSR hearing was 7 insufficient to prove assault in the second degree. 8 question, therefore, is whether the evidence presented was 9 sufficient to establish attempted assault in the second degree. 10 Under New York law, attempted assault in the second degree The government The 11 requires that a defendant, with intent to cause physical injury 12 to another person, attempt to cause such injury to such person 13 . . . by means of a deadly weapon or a dangerous instrument. 14 N.Y. Penal Law § 120.05(2). 15 impairment of physical condition or substantial pain. 16 10.00(9). 17 such a wound need not be severe or intense to be substantial, 18 but at a minimum the injury must cause some pain or, to some 19 extent, result in some [physical] impairment. 20 Kruppenbacher, 917 N.Y.S.2d 405, 410 (3d Dep t. 2011) (internal 21 quotation marks omitted). 22 physical injury presented only an insignificant scar, which is 23 insufficient to establish assault in the second degree; however, 24 where the defendant harbored an intent to harm the victim when 25 he attacked her with the dangerous instrument, that is legally 26 sufficient evidence to establish that he attempted to assault. 27 Id. Physical injury is defined as Id. § To constitute physical injury, the pain caused by People v. In Kruppenbacher, the evidence of 13 1 On several different occasions, appellant physically 2 attacked and expressed a desire to injure Marquita severely. He 3 grabbed her around the throat, threw her against a wall, and used 4 scissors to get her hands off the doorknob, ultimately stabbing 5 her in her right hand. 6 leaving only a small scar, Marquita could have been injured more 7 severely, resulting in physical impairment or substantial pain. Although the injury was relatively minor, 8 Appellant s actions easily support an inference that he had 9 no qualms about seriously injuring Marquita and indeed wished to 10 do so. Therefore, the evidence presented at the VOSR hearing was 11 sufficient to support the district court s finding, by a 12 preponderance of evidence, that appellant committed attempted 13 felony assault under New York law. 14 c) Reopening the VOSR Hearing 15 Appellant also argues that the district court erred in 16 declining to reopen the VOSR hearing in light of Marquita s 17 October 28, 2010, letter stating that she lied on [sic] Mr. 18 Tyrone Carthen, that appellant never put his hands on [her], 19 and that she just [does not] want Mr. Carthen to have to spend 20 any more time in jail because of [her]. 21 Although we have not explicitly ruled on the proper standard 22 of review of a district court s denial of a motion to reopen a 23 revocation hearing, the standard clearly is one of abuse of 24 discretion. 25 deference properly accorded a district court s decision[] 26 regarding evidentiary matters and the general conduct of trials. 27 United States v. Bayless, 201 F.3d 116, 131 (2d Cir. 2000) That standard accurately reflects the degree of 14 1 (applying abuse of discretion to reconsideration of a suppression 2 motion because of new evidence); see also United States v. Gotti, 3 794 F.2d 773, 780 (2d Cir. 1986) (applying abuse of discretion 4 standard to denial of motion to reopen bail hearing). 5 In the analogous context of motions for a new trial, 6 witness recantations are viewed with the utmost suspicion, 7 Haouari v. United States, 510 F.3d 350, 353 (2d Cir. 2007) 8 (quoting Ortega v. Duncan, 333 F.3d 102, 107 (2d Cir. 2003)), 9 particularly in the context of recantations from victims of 10 domestic violence, see O Laughlin v. O Brien, 577 F.3d 1, 4 (1st 11 Cir. 2009) (noting that victims of domestic violence often recant 12 or refuse to cooperate). 13 Factors considered in reviewing a district court s decision 14 to decline an evidentiary hearing involving a recanting witness 15 include: 16 original proceeding; the existence of evidence corroborating 17 either the conviction or the recantation; . . . the temporal 18 proximity of the trial testimony and the purported recantation; 19 the consistency of the recantation with the witness s comments 20 and behavior before, during, and after trial; and the existence 21 of evidence of outside influence suggesting either coerced 22 testimony or coerced recantation. 23 F.3d 876, 884 (8th Cir. 2008). 24 effect on the ultimate disposition of the matter, a district 25 court may decline to reopen the revocation hearing. 26 States v. Mitchell, 429 Fed. App x 271, 276 (4th Cir. 2011). the importance of the witness s testimony in the United States v. Rojas, 520 Where the evidence could have no 15 United 1 The district court did not find Marquita s letter 2 sufficiently credible to undermine her earlier corroborated and 3 sworn accounts of the attacks. 4 discretion. That finding was not an abuse of 5 Marquita s effort to minimize appellant s conduct is 6 consistent with the guilt she expressed for reporting the abuse 7 instead of tak[ing] the ass-whipping and not report[ing] what 8 happened. 9 to be responsible for appellant returning to prison. It is also consistent with her expressed desire not 10 Furthermore, the district court was entitled to consider that 11 such a recantation is not unusual in domestic violence cases. 12 Victims of this type of violence often are protective of, and 13 deny allegations against, their abusers. 14 In contrast to the recantation, Marquita s original story 15 was corroborated by the scar on her hand; Zavatsky s interviews 16 with Booker and Nancy; her own sworn and graphically detailed 17 testimony in her March 23, 2010, Family Offense Petition; the 18 NYPD Domestic Incident Report; and the fact that Marquita went to 19 a domestic violence shelter in a self-evident attempt to escape 20 appellant. 21 appellant s request to reopen the VOSR hearing. Therefore, the district court did not err in denying 22 23 24 CONCLUSION For the foregoing reasons, the order of the district court is affirmed. 16
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