United States v. Frederickson

• Citation: 988 F.3d 76
• Decision Date: 16 February 2021
• Docket Number: No. 20-1033,20-1033
• Parties: UNITED STATES of America, Appellee, v. Daniel FREDERICKSON, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

988 F.3d 76

UNITED STATES of America, Appellee,

v.Daniel FREDERICKSON, Defendant, Appellant.

No. 20-1033

United States Court of Appeals, First Circuit.

February 16, 2021

Leonardo A. Angiulo, Worcester, MA, for appellant.

Lucy Sun, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

Before Lynch, Lipez, and Barron, Circuit Judges.

LIPEZ, Circuit Judge.

In August 2019, the United States Probation Department in Worcester, Massachusetts ("the Probation Office" or "Probation"), petitioned for the arrest of appellant Daniel Frederickson for violating his supervised release by committing a new offense -- assaulting a U.S. Probation Office employee. A criminal complaint was also issued against Frederickson for the alleged assault. After a three-day trial, a jury acquitted Frederickson of the criminal assault charge. Subsequently, the district judge who presided at the jury trial also presided at a supervised release revocation hearing and revoked Frederickson's supervised release on the basis of the same conduct. The court sentenced Frederickson to twenty-four months in prison followed by eight months of supervised release.

Frederickson appeals, alleging that the court improperly used acquitted conduct to revoke his supervised release, that the evidence did not support a finding of revocation, and that the sentence imposed was unreasonable. After careful review, we affirm.

I.

We recount the facts as presented at Frederickson's revocation hearing in the light most favorable to the government, see United States v. Oquendo-Rivera, 586 F.3d 63, 66-67 (1st Cir. 2009), except where presenting conflicting testimony is necessary to understand the legal issues in this appeal. At the revocation hearing, the parties relied primarily on transcripts of Frederickson's criminal assault trial. The government supplemented its evidence with two additional witnesses, but Frederickson relied solely on his presentation at trial, which consisted of his testimony as the only witness in his defense. Hence, in recounting the facts, we rely heavily on memorialized trial testimony as proffered by the parties and supplemented by the government at the revocation hearing.

A. Supervised Release and the Assault

In November 2017, Frederickson pled guilty to conspiracy to possess with intent to distribute steroids, in violation of 21 U.S.C. § 846, and possession of a tableting machine, in violation of 21 U.S.C. § 843(a)(6). He was sentenced to three years of supervised release. As a condition of his release, Frederickson was required to submit to regularly scheduled drug testing at the U.S. Probation Office. He was also prohibited from committing any additional state or federal crimes.

Paul Walter, who was twenty-six years old at the time of these events, was a student intern in the Probation Office beginning in January 2017. As an intern, he was responsible for, among other things, answering the phone, handling faxes, monitoring home detention, and collecting urine samples. Walter testified that, beginning in late 2017, he collected urine samples from Frederickson one to three times a month until August 20, 2019.

On that date, Frederickson arrived at the Probation Office for a scheduled urine test. Walter greeted Frederickson, observed him pass through a metal detector, and unlocked the bathroom door for Frederickson to enter from the lobby. Walter then entered the bathroom from a second door leading to the offices, handed Frederickson a urine sample cup, and left the bathroom through that same door to allow Frederickson to provide the sample. Shortly thereafter, Frederickson either knocked on the door to the offices or yelled for Walter to reenter the bathroom. Walter and Frederickson provided conflicting accounts of what happened next.

Walter contends that when he reentered the bathroom, he inspected Frederickson's sample and determined that there was an insufficient amount of urine. Walter asked whether Frederickson needed additional time or a glass of water to produce a sufficient sample, but Frederickson declined. Walter testified that Frederickson suddenly began walking toward him and asking questions such as "Why are we here?" and "What do you even do here?" Walter tried to leave the bathroom but was met by a closed fist punch to the left side of his face by Frederickson. Walter contends that Frederickson proceeded to violently assault him by placing him in a chokehold, strangling him, and slamming his head against a wall, table, and the floor while Walter pleaded for his life.

According to Frederickson, when Walter initially entered the bathroom to provide the sample cup, Walter made several comments about Frederickson's appearance, such as, "[y]ou look good," and "you have really nice calf muscles," and asked Frederickson whether he had been working out. Frederickson testified that he felt as though Walter was "hitting on [him]." According to Frederickson, when Walter reentered the bathroom to inspect the sample, he said it was insufficient and proceeded to "pat" Frederickson's genitals, and stated "you can do a little better than that." Frederickson said he was "stunned" by Walter's sexual assault and immediately punched Walter in his left eye. Frederickson contends that thereafter he was in a state of shock and remembers only that he ended up on the bathroom floor holding Walter down by his shoulders and asking him "What the hell was that?" and "What do you even do here?"

The only other individual present in the Probation Office at the time of the assault was Probation Officer Ryan Skal, who testified at the trial that he heard a loud thumping coming from the bathroom and went to investigate. When he opened the bathroom door, Officer Skal observed Frederickson holding Walter in a chokehold on the floor. He testified that Walter appeared to be struggling to breathe. He closed the bathroom door and ran to call for emergency services. After calling 911 and reporting the assault, Officer Skal returned to the bathroom and observed Frederickson continuing to strangle Walter. Skal urged Frederickson to desist and, "after a few prompts," Frederickson acquiesced. Officer Skal then ordered Frederickson to leave the Probation Office immediately, and Frederickson complied. Officer Skal did not testify that Frederickson had told him that Walter had sexually assaulted him.

After Frederickson left the Probation Office, Worcester Police Officer Keith Garlick recognized Frederickson's name because he was "familiar with the family." Officer Garlick notified Frederickson's family of the assault allegations and, shortly thereafter, Frederickson's sister drove him to the Worcester Police Station. Officer Garlick testified, as one of the two additional witnesses presented by the government at the revocation hearing, that he arrested Frederickson without Mirandizing¹ him and that Frederickson remained silent and had no visible injuries.

B. The Jury Verdict and Supervised Release Revocation

Frederickson was indicted on one count of assaulting a federal employee, in violation of 18 U.S.C. § 111. The Worcester District Court had also issued a criminal complaint charging Frederickson with various state crimes, but all were dismissed after Frederickson was federally indicted. The Probation Office separately sought revocation of Frederickson's supervised release for his November 2017 offense on the ground that Frederickson had violated the conditions of his release by "committ[ing] another federal, state, or local crime." At the government's request, the court continued the revocation hearing until after the assault trial.

The trial occurred in December 2019 and lasted three days. On the final day, the court instructed the jury on the elements of forcibly assaulting a federal employee. The court also instructed the jury on self-defense:

The defendant has testified that he acted in self-defense. Therefore, in addition to proving all the elements of the crime beyond a reasonable doubt, the [g]overnment must also prove beyond a reasonable doubt that the defendant did not act in self-defense. A defendant may use force in self-defense against a federal officer if: One, the defendant reasonably believed that the use of force was necessary to defend himself against an immediate use of unlawful force or unlawful contact; and two, the defendant used no more force than appeared reasonably necessary in the circumstances. However, a person who is the initial aggressor cannot later claim self-defense as a justification for the assault.

After approximately three hours of deliberations, the jury returned a verdict of not guilty.

Directly following the acquittal, the court convened a bail hearing regarding Frederickson's ongoing detention for his alleged supervised release violation based on the same conduct -- assaulting Walter. Despite the acquittal, the government insisted on pursuing the supervised release violation, given the lower burden of proof (by a preponderance of the evidence) applicable at revocation proceedings. The court ordered Frederickson detained pending the revocation hearing.

The day before the revocation hearing, the court convened a telephone conference primarily to hear argument as to "whether the court may consider acquitted conduct in reaching its decision on revocation." At that hearing, the government notified Frederickson that it intended to argue at the revocation hearing that Frederickson violated supervised release by (1) assaulting a federal employee in violation of 18 U.S.C. § 111 (the federal assault charge that was the subject of the criminal trial), and (2) committing simple assault and battery in violation of Mass. Gen. Laws ch. 265, § 13A (the state assault and battery charge that was dismissed).

The revocation hearing was held on December 20, 2019. At the outset, the court announced its legal conclusions as to the issues discussed at the telephone conference. The court concluded that nothing "preven...