United States v. Carthen
| Decision Date | 23 May 2012 |
| Docket Number | Docket No. 10–4817–cr. |
| Citation | 681 F.3d 94 |
| Parties | UNITED STATES of America, Appellee, v. Tyrone L. CARTHEN, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
OPINION TEXT STARTS HERE
Edward S. Zas, of counsel, Federal Defenders of New York, Inc., New York, NY, for Defendant–Appellant.
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, NY, for Defendant–Appellee.
Before: WINTER, McLAUGHLIN, and CABRANES, Circuit Judges.
Tyrone L. Carthen appeals from Judge Irizarry's adoption of Magistrate Judge Azrack's report and recommendation (“R & R”). The R & R recommended revocation of appellant's supervised release because he violated a mandatory condition of his supervision, namely that he “shall not commit another federal, state or local crime.” The revocation stems from appellant's actions against Marquita Cox (“Marquita”), appellant's ex-girlfriend and the mother of three of his children. Appellant primarily claims a violation of the Confrontation Clause and challenges the district court's determination that, under Federal Rule of Criminal Procedure 32.1, good cause existed to allow the government to rely principally upon hearsay evidence in his Violation of Supervised Release (“VOSR”) hearing. We affirm.
On February 26, 2010, after serving a twenty-two month prison sentence for the possession of a firearm by a convicted felon under 18 U.S.C. §§ 922(g)(1) and 924(a)(2), appellant was released from a halfway house in Brooklyn, New York to begin a three-year term of supervised release. On April 5, 2010, Senior Probation Officer Darcy A. Zavatsky learned that appellant might have violated the conditions of his supervised release when appellant reported to the probation department with a Temporary Order of Protection and Family Offense Petition that Marquita had filed against him.
Zavatsky conducted an investigation and was the sole witness at appellant's VOSR hearing. Zavatsky's testimony described statements made to her in a series of interviews with various individuals, statements in various police or court documents, and other corroborating evidence.
On April 27, 2010, the government filed the VOSR Report charging appellant with two counts of violating the mandatory condition of supervision that he “not commit another federal, state or local crime”: (i) conduct constituting felony assault and/or attempted assault (a felony crime of violence), and (ii) conduct constituting assault, attempted assault, aggravated harassment, menacing, reckless endangerment and/or harassment (a misdemeanor offense).
Based on interviews conducted with Marquita, Zavatsky testified that, on the date of his release, appellant arrived at the apartment in which Marquita was staying with her then boyfriend, Manuel Joyner. Appellant grabbed Marquita's throat and threw her against a wall, choking her until she nearly lost consciousness. Appellant demanded to know the whereabouts of Joyner, who was hiding in the bathroom. Appellant stated that he wanted to “put a bird cage over [Marquita's] head,” which she interpreted to mean that he wanted to “break her face.” Marquita ran to the bathroom in which Joyner was hiding and held the door closed from the outside. Appellant jabbed at Marquita's hands with a pair of scissors and, in the process, punctured her skin, ultimately causing a small scar that was observed by Zavatsky. Marquita was able to diffuse the situation by convincing appellant she was no longer in a relationship with Joyner. Marquita recounted the stabbing in a sworn Family Offense Petition later filed in Family Court.
Zavatsky testified further about events that took place on March 15, 2010, based on interviews with Marquita, Joyner, their friend Takima Booker (“Booker”), and Marquita's mother Nancy Cox (“Nancy”), who were at Nancy's home that day. Appellant, lurking outside, began calling Marquita continuously on her cell phone to ask her to go outside to speak to him. Nancy and Booker, out of concern that appellant would harm Marquita, convinced her to stay inside. Nancy then went into the hallway of her residence to ask appellant to leave and remind him that he was not welcome at her home. When appellant refused to leave, Nancy called the police, who responded to the scene and filed a Domestic Incident Report with the 71st precinct recounting Marquita's statement that appellant “verbally harassed her by means of yelling and screaming and knocking on [her mother's] door.”
Based on interviews with Marquita and Booker about events that took place on March 21, 2010, Zavatsky testified, and stated in the VOSR Report, that appellant called Marquita repeatedly and waited for her at her apartment building, confronting her and Booker as they returned. Appellant seized both Booker's and Marquita's cell phones to prevent them from calling anyone, yelled and cursed at Marquita, accused Marquita of lying about where she had been all day, grabbed Marquita around the throat with one hand, choked her, and forced her head into a door. Appellant also slapped Marquita in the face, ripped off her wig, and knocked her pocketbook out of her hands.
Appellant convinced Marquita to return to her apartment with him. Marquita, frightened, asked Booker to accompany them. Zavatsky testified that once in the apartment, appellant again grabbed Marquita around the throat tightly and pressed his fist up against her cheek with force. Booker, who was in a different room at the time, did not witness this attack firsthand, but she confirmed that Marquita told her about it and that she had observed additional red marks on Marquita's face and neck.
When Booker's father called her cell phone later that evening, appellant returned it to her. Booker and Marquita asked to leave the apartment to meet Booker's father. Appellant, concerned Marquita was actually planning to meet Joyner, refused to let them leave alone, and insisted on accompanying them. Appellant repeatedly stated that he would beat Marquita “like [she] was a man” if he saw Joyner on the street.
After about an hour, appellant, Marquita, and Booker returned to the apartment and the women began to plan an escape from appellant. Early the next morning, Marquita and Booker left the apartment to take Marquita's children to school, after which they met Nancy and recounted to her the events from the prior evening. Nancy called Victim Services and reported the assault on Marquita. Marquita willingly went to a shelter for battered women.
On March 23, 2010, Marquita filed a sworn Family Offense Petition in Kings County Family Court and was issued a temporary order of protection, which was followed by a two-year permanent order of protection on April 13, 2010. Appellant has not violated the order of protection or otherwise bothered Marquita since its entry.
As noted, Zavatsky gave the testimony described above based on: (i) the interviews conducted with Marquita, Booker, and Nancy; (ii) Marquita's Family Offense Petition; (iii) the police Domestic Incident Report; and (iv) Zavatsky's observation of a scar on Marquita's right hand. The government called no other witnesses.
We turn now to the evidence regarding the absence of witnesses with personal knowledge of relevant events. Zavatsky testified that on April 8, 2010, Marquita recounted appellant's abusive behavior as described above and agreed to testify at the VOSR hearing. However, during subsequent interviews, Marquita informed Zavatsky that she no longer wished to cooperate because she did not want to be responsible for sending appellant back to jail. On the day of the hearing Marquita stated to Zavatsky and an Assistant United States Attorney that she would not testify and that she would “risk going to jail if she were called to testify and refused.” In these statements, she sought to minimize appellant's conduct by stating that she had exaggerated some of the details in the Family Offense Petition. She also expressed the wish that she had just “taken the ass whipping and not reported what happened.”
The R & R rejected appellant's Confrontation Clause arguments and recommended revocation of appellant's supervised release. On October 25, 2010, after explicitly considering: (i) appellant's interest in cross-examining the hearsay declarants; (ii) the government's reasons for not producing witnesses with personal knowledge of relevant events; and (iii) the reliability of the proffered hearsay, see United States v. Williams, 443 F.3d 35, 45 (2d Cir.2006), the district court adopted the R & R and determined that “good cause” existed under Rule 32.1(b)(2) to allow the hearsay testimony, United States v. Carthen, No. 10–CR–319, 2010 WL 4313384 (E.D.N.Y. Oct. 25, 2010).
On October 28, 2010, Marquita submitted a letter to the court stating that she “lied on Mr. Tyrone Carthen,” that appellant “never put his hands on [her],” and that she “just [does not] want Mr. Carthen to have to spend any more time in jail because of [her].” Based on this letter, appellant filed a motion to reopen the VOSR hearing, which the district court denied.
On November 5, 2010, the district court sentenced appellant, on each count (concurrently), to eighteen months' imprisonment, followed by eighteen months of supervised release. The sentence was based on a Grade “A” violation of supervised release and a Criminal History Category of III.
On appeal, appellant argues that the district court erred in: (i) admitting unreliable hearsay without good cause; (ii) finding that appellant engaged in felonious conduct that constitutes a Grade “A” violation of supervised release; and (iii) failing to reopen the hearing in light of Marquita's recantation.
Revocation proceedings are not deemed part of a criminal prosecut...
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