1 **10-4817-cr United States v. Carthen** 

UNITED STATES COURT OF APPEALS 1

FOR THE SECOND CIRCUIT 2 August Term, 2011 3 (Argued: August 24, 2011 Decided: May 23, 2012) 4 Docket No. 10-4817-cr 5

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 6 UNITED STATES OF AMERICA, 7 8 Appellee, 9 10 v. 11 12 TYRONE L. CARTHEN, 13 14 Defendant-Appellant

. 15 16

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 17 18 B e f o r e: WINTER, McLAUGHLIN, and CABRANES, CircuitJudges

. 19 Appeal from the adoption by the United States District Court 20 for the Eastern District of New York (Dora L. Irizarry, Judge) of 21 a magistrate judge’s (John M. Azrack, MagistrateJudge)report and 22 recommendation to revoke appellant’s supervised release for 23 violating a mandatory condition of supervision that he “shall not 24 commit another federal, state, or local crime.” Appellant 25 principally disputes the district court’s determination that, 26 under Federal Rule of Criminal Procedure 32.1, good cause existed 27 to allow the government to introduce hearsay evidence during his 28 Violation of Supervised Release hearing. We affirm. 292 EDWARD S. ZAS, of counsel , Federal 1 Defenders of New York, Inc., New 2 York, New York, forDefendant3 Appellant

. 4 5 TYLER J. SMITH, Assistant United 6 States Attorney, of counsel(Susan 7 Corkery, Assistant United States 8 Attorney, of counsel ) on the brief 9 forLoretta E. Lynch, United States 10 Attorney for the Eastern District 11 of New York, Brooklyn, New York, 12 forDefendant-Appellee

. 13 14 WINTER, Circuit Judge: 15 Tyrone L. Carthen appeals from Judge Irizarry’s adoption of 16 Magistrate Judge Azrack’s report and recommendation (“R & R”). 17 The R & R recommended revocation of appellant’s supervised 18 release because he violated a mandatory condition of his 19 supervision, namely that he “shall not commit another federal, 20 state or local crime.” The revocation stems from appellant’s 21 actions against Marquita Cox (“Marquita”), appellant’s ex22 girlfriend and the mother of three of his children. Appellant 23 primarily claims a violation of the Confrontation Clause and 24 challenges the district court’s determination that, under Federal 25 Rule of Criminal Procedure 32.1, good cause existed to allow the 26 government to rely principally upon hearsay evidence in his 27 Violation of Supervised Release (“VOSR”) hearing. We affirm. 28

BACKGROUND 29 On February 26, 2010, after serving a twenty-two month 30 prison sentence for the possession of a firearm by a convicted 31 felon under 18 U.S.C. §§ 922(g)(1) and 924(a)(2), appellant was 323 released from a halfway house in Brooklyn, New York to begin a 1 three-year term of supervised release. On April 5, 2010, Senior 2 Probation Officer Darcy A. Zavatsky learned that appellant might 3 have violated the conditions of his supervised release when 4 appellant reported to the probation department with a Temporary 5 Order of Protection and Family Offense Petition that Marquita had 6 filed against him. 7 Zavatsky conducted an investigation and was the sole witness 8 at appellant’s VOSR hearing. Zavatsky’s testimony described 9 statements made to her in a series of interviews with various 10 individuals, statements in various police or court documents, and 11 other corroborating evidence. 12 On April 27, 2010, the government filed the VOSR Report 13 charging appellant with two counts of violating the mandatory 14 condition of supervision that he “not commit another federal, 15 state or local crime”: (i) conduct constituting felony assault 16 and/or attempted assault (a felony crime of violence), and (ii) 17 conduct constituting assault, attempted assault, aggravated 18 harassment, menacing, reckless endangerment and/or harassment (a 19 misdemeanor offense). 20 Based on interviews conducted with Marquita, Zavatsky 21 testified that, on the date of his release, appellant arrived at 22 the apartment in which Marquita was staying with her then 23 boyfriend, Manuel Joyner. Appellant grabbed Marquita’s throat 24 and threw her against a wall, choking her until she nearly lost 254 consciousness. Appellant demanded to know the whereabouts of 1 Joyner, who was hiding in the bathroom. Appellant stated that he 2 wanted to “put a bird cage over [Marquita’s] head,” which she 3 interpreted to mean that he wanted to “break her face.” Marquita 4 ran to the bathroom in which Joyner was hiding and held the door 5 closed from the outside. Appellant jabbed at Marquita’s hands 6 with a pair of scissors and, in the process, punctured her skin, 7 ultimately causing a small scar that was observed by Zavatsky. 8 Marquita was able to diffuse the situation by convincing 9 appellant she was no longer in a relationship with Joyner. 10 Marquita recounted the stabbing in a sworn Family Offense 11 Petition later filed in Family Court. 12 Zavatsky testified further about events that took place on 13 March 15, 2010, based on interviews with Marquita, Joyner, their 14 friend Takima Booker (“Booker”), and Marquita’s mother Nancy Cox 15 (“Nancy”), who were at Nancy's home that day. Appellant, lurking 16 outside, began calling Marquita continuously on her cell phone to 17 ask her to go outside to speak to him. Nancy and Booker, out of 18 concern that appellant would harm Marquita, convinced her to stay 19 inside. Nancy then went into the hallway of her residence to ask 20 appellant to leave and remind him that he was not welcome at her 21 home. When appellant refused to leave, Nancy called the police, 22 who responded to the scene and filed a Domestic Incident Report 23 with the 71st precinct recounting Marquita’s statement that 24 appellant “verbally harassed her by means of yelling and 25 screaming and knocking on [her mother’s] door.” 265 Based on interviews with Marquita and Booker about events 1 that took place on March 21, 2010, Zavatsky testified, and stated 2 in the VOSR Report, that appellant called Marquita repeatedly and 3 waited for her at her apartment building, confronting her and 4 Booker as they returned. Appellant seized both Booker’s and 5 Marquita’s cell phones to prevent them from calling anyone, 6 yelled and cursed at Marquita, accused Marquita of lying about 7 where she had been all day, grabbed Marquita around the throat 8 with one hand, choked her, and forced her head into a door. 9 Appellant also slapped Marquita in the face, ripped off her wig, 10 and knocked her pocketbook out of her hands. 11 Appellant convinced Marquita to return to her apartment with 12 him. Marquita, frightened, asked Booker to accompany them. 13 Zavatsky testified that once in the apartment, appellant again 14 grabbed Marquita around the throat tightly and pressed his fist 15 up against her cheek with force. Booker, who was in a different 16 room at the time, did not witness this attack firsthand, but she 17 confirmed that Marquita told her about it and that she had 18 observed additional red marks on Marquita’s face and neck. 19 When Booker’s father called her cell phone later that 20 evening, appellant returned it to her. Booker and Marquita asked 21 to leave the apartment to meet Booker’s father. Appellant, 22 concerned Marquita was actually planning to meet Joyner, refused 23 to let them leave alone, and insisted on accompanying them. 24 Appellant repeatedly stated that he would beat Marquita “like 25 [she] was a man” if he saw Joyner on the street. 266 After about an hour, appellant, Marquita, and Booker 1 returned to the apartment and the women began to plan an escape 2 from appellant. Early the next morning, Marquita and Booker left 3 the apartment to take Marquita’s children to school, after which 4 they met Nancy and recounted to her the events from the prior 5 evening. Nancy called Victim Services and reported the assault 6 on Marquita. Marquita willingly went to a shelter for battered 7

women. 8 On March 23, 2010, Marquita filed a sworn Family Offense 9 Petition in Kings County Family Court and was issued a temporary 10 order of protection, which was followed by a two-year permanent 11 order of protection on April 13, 2010. Appellant has not 12 violated the order of protection or otherwise bothered Marquita 13 since its entry. 14 As noted, Zavatsky gave the testimony described above based 15 on: (i) the interviews conducted with Marquita, Booker, and 16 Nancy; (ii) Marquita’s Family Offense Petition; (iii) the police 17 Domestic Incident Report; and (iv) Zavatsky’s observation of a 18 scar on Marquita’s right hand. The government called no other 19 witnesses. 20 We turn now to the evidence regarding the absence of 21 witnesses with personal knowledge of relevant events. Zavatsky 22 testified that on April 8, 2010, Marquita recounted appellant’s 23 abusive behavior as described above and agreed to testify at the 24 VOSR hearing. However, during subsequent interviews, Marquita 25 informed Zavatsky that she no longer wished to cooperate because 267 she did not want to be responsible for sending appellant back to 1 jail. On the day of the hearing Marquita stated to Zavatsky and 2 an Assistant United States Attorney that she would not testify 3 and that she would “risk going to jail if she were called to 4 testify and refused.” In these statements, she sought to 5 minimize appellant’s conduct by stating that she had exaggerated 6 some of the details in the Family Offense Petition. She also 7 expressed the wish that she had just “taken the ass whipping and 8 not reported what happened.” 9 The R & R rejected appellant’s Confrontation Clause 10 arguments and recommended revocation of appellant’s supervised 11 release. On October 25, 2010, after explicitly considering: (i) 12 appellant’s interest in cross-examining the hearsay declarants; 13 (ii) the government’s reasons for not producing witnesses with 14 personal knowledge of relevant events; and (iii) the reliability 15 of the proffered hearsay, seeUnited States v. Williams , 443 F.3d 16 35, 45 (2d Cir. 2006), the district court adopted the R & R and 17 determined that “good cause” existed under Rule 32.1(b)(2) to 18 allow the hearsay testimony, United States v. Carthen, No. 10-CR19 319, 2010 WL 4313384 (E.D.N.Y. Oct. 25, 2010). 20 On October 28, 2010, Marquita submitted a letter to the 21 court stating that she “lied on Mr. Tyrone Carthen,” that 22 appellant “never put his hands on [her],” and that she “just 23 [does not] want Mr. Carthen to have to spend any more time in 24 jail because of [her].” Based on this letter, appellant filed a 258 motion to reopen the VOSR hearing, which the district court 1 denied. 2 On November 5, 2010, the district court sentenced appellant, 3 on each count (concurrently), to eighteen months’ imprisonment, 4 followed by eighteen months of supervised release. The sentence 5 was based on a Grade “A” violation of supervised release and a 6 Criminal History Category of III. 7 On appeal, appellant argues that the district court erred 8 in: (i) admitting unreliable hearsay without good cause; (ii) 9 finding that appellant engaged in felonious conduct that 10 constitutes a Grade “A” violation of supervised release; and 11 (iii) failing to reopen the hearing in light of Marquita’s 12 recantation. 13

DISCUSSION 14 a) Good Cause for Admitting Hearsay 15 Revocation proceedings are not deemed part of a criminal 16 prosecution, and, therefore, defendants in such proceedings are 17 not entitled to “the full panoply of rights” that criminal 18 defendants generally enjoy. Morrissey v. Brewer, 408 U.S. 471, 19 480 (1972). The Confrontation Clause prohibitions against 20 hearsay evidence do not strictly apply, see, e.g. , Williams , 443 21 F.3d at 45; United States v. Aspinall , 389 F.3d 332, 342-43 (2d 22 Cir. 2004), abrogation on other grounds recognized byUnited 23 States v. Fleming, 397 F.3d 95, 99 n.5 (2d Cir. 2005); United 24 States v. Chin, 224 F.3d 121, 124 (2d Cir. 2000), and at a VOSR 25 hearing, the alleged violation of supervised-release need only be 269 proven by a preponderance of the evidence, not beyond a 1 reasonable doubt, seeUnited States v. McNeil , 415 F.3d 273, 277 2 (2d Cir. 2005). In a VOSR hearing, a defendant has “the right to 3 confront and cross-examine adverse witnesses (unless the [court] 4 specifically finds good cause for not allowing confrontation).” 5 Morrissey, 408 U.S. at 489; see alsoFed. R. Crim. P. 6 32.1(b)(2)(C) (defendants must have an opportunity to question 7 adverse witnesses “unless the court determines that the interest 8 of justice does not require the witness to appear”). 9 A proffered hearsay statement that falls within an 10 established exception is of course admissible in a VOSR hearing. 11 For statements that would be inadmissible under the Federal Rules 12 of Evidence, a determination of “good cause” requires the court 13 to balance “the defendant’s interest in confronting the 14 declarant[] against[] . . . the government’s reasons for not 15 producing the witness and the reliability of the proffered 16 hearsay.” Williams , 443 F.3d at 45. The defendant’s interest is 17 entitled to little weight if the defendant caused the declarant’s 18 absence by way of intimidation. Id. 19 We review a district court’s balancing of the Rule 32.1 20 factors for abuse of discretion. Id.at 46. “[A] district court 21 ‘abuses’ or ‘exceeds’ the discretion accorded to it when (1) its 22 decision rests on an error of law (such as application of the 23 wrong legal principle) or a clearly erroneous factual finding, or 24 (2) its decision . . . cannot be located within the range of 25 permissible decisions.” United States v. Jones , 299 F.3d 103, 2610 112 (2d Cir. 2002) (quoting Zervos v. Verizon N.Y., Inc. , 252 1 F.3d 163, 169 (2d Cir. 2001)(internal quotation marks 2 omitted)(omission in original)). 3 In balancing the various interests under Rule 32.1, the 4 district court acknowledged appellant’s strong interest in 5 confronting Marquita. However, the court also concluded that the 6 government’s reason for not calling her was reasonable in that 7 she repeatedly refused to testify. Finally, the district court 8 found that the hearsay evidence was reliable as a whole. We 9 conclude that the finding of good cause for the admission of the 10 hearsay statements was amply supported. 11 For purposes of analysis, the reasonableness of the 12 government’s not calling Marquita at the VOSR hearing turns in 13 large part on weighing the reliability of her earlier statements 14 regarding domestic abuse against her desire not to testify as 15 expressed just prior to the hearing. The earlier statements bore 16 significant indicia of reliability. Zavatsky had conducted six 17 interviews with Marquita, as well as interviews with Booker and 18 Nancy. Their stories corroborated each other. Zavatsky observed 19 a scar on Marquita’s right hand consistent with the wound 20 Marquita had described in her account of the events of February 21 26, 2010, in which appellant stabbed her right hand with a 22 scissor blade. The district court found additional corroborating 23 evidence in the NYPD Domestic Incident Report, Marquita’s Family 24 Offense Petition, the temporary and permanent orders of 25 protection, and the fact that Marquita sought protection from 26 appellant at a shelter for victims of domestic violence. 2711 The hearsay portions of this evidence were detailed, 1 credible, and sometimes under oath. They were not idle chit2 chat. They were also corroborated by other evidence, including a 3 court order that was admissible as an official record, seeFed. 4 R. Evid. 803(8) (public records exception); the scar that was 5 personally observed by Zavatsky; and Marquita’s report to the 6 shelter that was not hearsay under Fed. R. Evid. 801(a) because 7 it was not intended as an assertion. 8 Also, Marquita’s expressed desire not to testify was not an 9 unusual reaction by a victim of domestic abuse. And, while she 10 sought at that time not to testify and to minimize the extent of 11 that abuse, she actually confirmed the truth of her earlier 12 statements in saying that she should have just “taken the ass 13 whipping.” 14 We have held that good cause justifying the absence of a 15 declarant exists when a defendant has a “history of violent 16 conduct [that] ma[kes] reprisal against [the declarant] a 17 possibility.” Jones , 299 F.3d at 113. In United States v. 18 Jackson, 347 Fed. App’x 701, 703 (2d Cir. 2009), cert. denied, 19 130 S. Ct. 1544 (2010), we found good cause not to call an 20 assault victim to testify after she had “recanted her original 21 accusations” because she had previously offered a “sworn and 22 recorded account of her assault,” and additional independent 23 evidence corroborated her original statements. Id. ; seealso 24 United States v. Hall , 419 F.3d 980, 988 n.6 (9th Cir. 2005) 25 (noting “well recognized” difficulty of securing cooperation of 26 domestic violence victims and that most common reason for 2712 dismissal of domestic violence crimes is non-cooperation of 1 victims); United States v. Martin, 382 F.3d 840, 846 (8th Cir. 2 2004) (holding hearsay statements of rape victim admissible where 3 she refused to testify and statements were corroborated by other 4 evidence). 5 Finally, as in Jones , appellant has a history of violence. 6 Appellant was previously arrested for a number of charges related 7 to violence against the mother of his two oldest children. Prior 8 to that, appellant had been convicted of misdemeanor assault on a 9 female and misdemeanor simple assault. 10 Regarding the failure to call Booker and Nancy, the 11 government asserts that it expected Nancy to refuse to testify 12 because she would align with her daughter out of loyalty. 13 Moreover, the government believed her testimony to be of less 14 importance than Marquita’s because the only pertinent event of 15 which she had first-hand knowledge was the incident on March 15, 16 2010, which was already detailed in the NYPD report. The 17 government further argues that it believed Booker to be in 18 Delaware, which, it argued, was enough for a finding of good 19 cause. Although it would have been preferable to ask Booker or 20 Nancy to testify, the failure to pursue them does not fatally 21 undermine the finding of good cause given the strength of the 22 record viewed as a whole. 23 Thus, the district court did not abuse its discretion in 24 balancing the interests under Rule 32.1. Accordingly, appellant 25 was not deprived of his constitutional right to confront and 26 cross-examine adverse witnesses. 2713 b) Finding of Felonious Conduct 1 Appellant argues that the government presented legally 2 insufficient evidence to prove assault in the second degree or 3 attempted assault in the second degree -- the two felonies 4 enumerated in Count 1 of the Violation Report. The government 5 concedes that the evidence presented at the VOSR hearing was 6 insufficient to prove assault in the second degree. The 7 question, therefore, is whether the evidence presented was 8 sufficient to establish attempted assault in the second degree. 9 Under New York law, attempted assault in the second degree 10 requires that a defendant, “with intent to cause physical injury 11 to another person,” attempt to cause “such injury to such person 12 . . . by means of a deadly weapon or a dangerous instrument.” 13 N.Y. Penal Law § 120.05(2). Physical injury is defined as 14 “impairment of physical condition or substantial pain.” Id. § 15 10.00(9). To constitute physical injury, the “pain caused by 16 such a wound need not be severe or intense to be substantial,” 17 but at a minimum the injury must “cause some pain or, to some 18 extent, result in some [physical] impairment.” People v. 19 Kruppenbacher, 917 N.Y.S.2d 405, 410 (3d Dep’t. 2011) (internal 20 quotation marks omitted). In Kruppenbacher, the evidence of 21 physical injury presented only an “insignificant” scar, which is 22 insufficient to establish assault in the second degree; however, 23 where the “defendant harbored an intent to harm the victim when 24 he attacked her with” the dangerous instrument, that is legally 25 sufficient evidence to establish that he attempted to assault. 26 Id. 2714 On several different occasions, appellant physically 1 attacked and expressed a desire to injure Marquita severely. He 2 grabbed her around the throat, threw her against a wall, and used 3 scissors to get her hands off the doorknob, ultimately stabbing 4 her in her right hand. Although the injury was relatively minor, 5 leaving only a small scar, Marquita could have been injured more 6 severely, resulting in physical impairment or substantial pain. 7 Appellant’s actions easily support an inference that he had 8 no qualms about seriously injuring Marquita and indeed wished to 9 do so. Therefore, the evidence presented at the VOSR hearing was 10 sufficient to support the district court’s finding, by a 11 preponderance of evidence, that appellant committed attempted 12 felony assault under New York law. 13 c) Reopening the VOSR Hearing 14 Appellant also argues that the district court erred in 15 declining to reopen the VOSR hearing in light of Marquita’s 16 October 28, 2010, letter stating that she “lied on [sic] Mr. 17 Tyrone Carthen,” that appellant “never put his hands on [her],” 18 and that she “just [does not] want Mr. Carthen to have to spend 19 any more time in jail because of [her].” 20 Although we have not explicitly ruled on the proper standard 21 of review of a district court’s denial of a motion to reopen a 22 revocation hearing, the standard clearly is one of abuse of 23 discretion. That “standard accurately reflects the degree of 24 deference properly accorded a district court’s decision[] 25 regarding evidentiary matters and the general conduct of trials.” 26 United States v. Bayless , 201 F.3d 116, 131 (2d Cir. 2000) 2715 (applying abuse of discretion to reconsideration of a suppression 1 motion because of new evidence); see alsoUnited States v. Gotti , 2 794 F.2d 773, 780 (2d Cir. 1986) (applying abuse of discretion 3 standard to denial of motion to reopen bail hearing). 4 In the analogous context of motions for a new trial, 5 witness recantations are viewed “with the utmost suspicion,” 6 Haouari v. United States , 510 F.3d 350, 353 (2d Cir. 2007) 7 (quoting Ortega v. Duncan, 333 F.3d 102, 107 (2d Cir. 2003)), 8 particularly in the context of recantations from victims of 9 domestic violence, seeO’Laughlin v. O’Brien, 577 F.3d 1, 4 (1st 10 Cir. 2009) (noting that victims of domestic violence often recant 11 or refuse to cooperate). 12 Factors considered in reviewing a district court’s decision 13 to decline an evidentiary hearing involving a recanting witness 14 include: the importance of the witness’s testimony in the 15 original proceeding; “the existence of evidence corroborating 16 either the conviction or the recantation; . . . the temporal 17 proximity of the trial testimony and the purported recantation; 18 the consistency of the recantation with the witness’s comments 19 and behavior before, during, and after trial; and the existence 20 of evidence of outside influence suggesting either coerced 21 testimony or coerced recantation.” United States v. Rojas , 520 22 F.3d 876, 884 (8th Cir. 2008). Where the evidence “could have no 23 effect on the ultimate disposition of the matter,” a district 24 court may decline to reopen the revocation hearing. United 25 States v. Mitchell , 429 Fed. App’x 271, 276 (4th Cir. 2011). 2616 The district court did not find Marquita’s letter 1 sufficiently credible to undermine her earlier corroborated and 2 sworn accounts of the attacks. That finding was not an abuse of 3 discretion. 4 Marquita’s effort to minimize appellant’s conduct is 5 consistent with the guilt she expressed for reporting the abuse 6 instead of “tak[ing] the ass-whipping and not report[ing] what 7 happened.” It is also consistent with her expressed desire not 8 to be responsible for appellant returning to prison. 9 Furthermore, the district court was entitled to consider that 10 such a recantation is not unusual in domestic violence cases. 11 Victims of this type of violence often are protective of, and 12 deny allegations against, their abusers. 13 In contrast to the recantation, Marquita’s original story 14 was corroborated by the scar on her hand; Zavatsky’s interviews 15 with Booker and Nancy; her own sworn and graphically detailed 16 testimony in her March 23, 2010, Family Offense Petition; the 17 NYPD Domestic Incident Report; and the fact that Marquita went to 18 a domestic violence shelter in a self-evident attempt to escape 19 appellant. Therefore, the district court did not err in denying 20 appellant’s request to reopen the VOSR hearing. 21

CONCLUSION 22 For the foregoing reasons, the order of the district court 23 is affirmed. 24