United States v. Frederickson ( 2021 )

United States Court of Appeals
For the First Circuit
No. 20-1033
UNITED STATES OF AMERICA,
Appellee,
v.
DANIEL FREDERICKSON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Landya B. McCafferty, U.S. District Judge]
Before
Lynch, Lipez, and Barron,
Circuit Judges.
Leonardo A. Angiulo for appellant.
Lucy Sun, Assistant United States Attorney, with whom Andrew
E. Lelling, United States Attorney, was on brief, for appellee.
February 16, 2021
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
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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.
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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.
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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
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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
1 See Miranda v. Arizona, 384 U.S. 436, 444-45, 467-74 (1966).
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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 --
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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 "prevent[ed] [it] from considering whether the
defendant violated 18 U.S.C. [§] 111 under a preponderance of the
evidence standard, and on that basis [the court could revoke
Frederickson's] supervised release." The court further concluded
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that it could also consider whether Frederickson's conduct
violated state or local law.
Frederickson argued that he acted in self-defense,
relying on his memorialized trial testimony. The government
similarly relied on the evidence it presented at trial, which
consisted of photographic evidence of Walter's injuries and the
crime scene, Walter's medical records, and the testimony of four
witnesses -- Walter; Officer Skal; Officer Anthony Correa, who
responded to the 911 call at the Probation Office; and Barbara
Hazen, a receptionist at the Probation Office who did not witness
the assault but arrived at the office shortly after the assault
occurred. The government supplemented its evidence at the
revocation hearing with the live testimony of two additional
witnesses: (1) Officer Keith Garlick, who testified that
Frederickson had no visible injuries and did not report being
sexually assaulted; and (2) Alicia Howarth, a Probation supervisor
who testified that Walter's employment file contained no
disciplinary proceedings or allegations of sexual assault.
After orally reviewing the evidence, the court stated
that it "intend[ed] to use the self-defense instruction, the law
that [it] gave the jury in the trial." It further clarified that
it had assessed the evidence and would apply the preponderance of
the evidence standard. The court proceeded to announce its
findings on self-defense before turning to the elements of assault.
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Regarding self-defense, the court concluded that "the
government ha[d] met its burden [of demonstrating] by a
preponderance of the evidence that the defendant did not act in
lawful self-defense [because] . . . [e]ven if the defendant
believed that Paul Walter unlawfully had physical contact with
him, the defendant used more force than appeared reasonably
necessary in the circumstances." The court noted that the only
unlawful physical contact that Frederickson testified to was
Walter's sexual assault at the beginning of the encounter, which
the court found did not justify Frederickson's prolonged
retaliation. With respect to the alleged sexual assault, the court
noted that
there [was] just no reason for
Mr. Frederickson not to say to Officer Skal or
to anyone that night "I was sexually
assaulted. . . . I'm on top of him because he
assaulted me" . . . . Mr. Frederickson
remained without any sort of responsiveness
and didn't mention to Officer Garlick, who
apparently knows the family, "Officer Garlick,
I was sexually assaulted" and talk to him,
tell him that. Nothing. There was nothing
that was mentioned.
Turning to the elements of assault and battery, the court
held that there, too, the government had met its burden on each
element of 18 U.S.C. § 111 and Mass. Gen. Laws ch. 265, § 13A. It
concluded that Frederickson willfully touched Walter in an
offensive manner likely to cause bodily harm. The court noted
that "Mr. Walter testified that Mr. Frederickson began to make him
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feel uneasy in terms of the questions and the look on his face,
and then out of the blue, according to Mr. Walter," Frederickson
struck him. The court stated that it found that the assault had
occurred "by a preponderance" and "frankly [that it was]
undisputed[,] because Mr. Frederickson admitted that he sucker
punched Mr. Walter."
The court revoked Frederickson's supervised release and
imposed the maximum allowable sentence -- twenty-four months in
prison followed by eight months of supervised release.
II.
On appeal, Frederickson challenges the revocation of his
supervised release as well as the sentence imposed by the district
court. Specifically, he argues that: (1) the district court was
barred from relying on acquitted conduct to revoke his supervised
release; (2) even if the acquitted conduct could be used, the
record does not support a finding of revocation; and (3) the
sentence imposed is unreasonable.
A. Acquitted Conduct as a Basis for Revocation
Frederickson contends that the government was
collaterally estopped from relying on acquitted conduct to
demonstrate that he committed a crime in violation of the terms of
his supervised release. As noted, prior to the revocation hearing,
the court conducted a telephonic hearing to consider whether
acquitted conduct could be used at the revocation hearing. Hence,
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we review this preserved issue of law de novo. United States v.
Cruz-Rivera, 904 F.3d 63, 65 (1st Cir. 2018).
The Fifth Amendment guarantee against double jeopardy
bars the government from retrying an individual for the "same"
offense. U.S. Const. amend. V. In Ashe v. Swenson, the Supreme
Court identified collateral estoppel as an "ingredient" in the
Fifth Amendment's prohibition on double jeopardy. 397 U.S. 436,
442-46 (1970). In effect, collateral estoppel applies the
principles of double jeopardy to a subsequent prosecution of a
"different" offense if, "to secure a conviction[,] the prosecution
must prevail on an issue the jury necessarily resolved in the
defendant's favor in the first trial." Currier v. Virginia, 138
S. Ct. 2144, 2150 (2018). For Ashe's collateral estoppel bar to
apply, "[the court] must be able to say that 'it would have been
irrational for the jury' in the first trial to acquit without
finding in the defendant's favor on a fact essential to conviction
in the second." Id. at 2150 (quoting Yeager v. United States, 557
U.S. 110, 127 (2009) (Kennedy, J., concurring in part and
concurring in the judgment)).
We recognize that there is a broader argument that
collateral estoppel, as grounded in the Double Jeopardy Clause,
simply does not apply to revocation proceedings, which often entail
a loss of liberty but are not criminal prosecutions. See United
States v. Correa-Torres, 326 F.3d 18, 22 (1st Cir. 2003). Indeed,
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the Tenth Circuit has stated that a "revocation proceeding . . .
simply is not a criminal prosecution to which Double Jeopardy
protections apply." Lynch v. O'Dell, 163 Fed. App'x 704, 707 (10th
Cir. 2006). The government attempts, in a perfunctory manner, to
raise a similar argument. Even if we excused the government's
probable waiver of this argument, we would decline to reach it,
opting instead for affirmance on the narrow ground that collateral
estoppel, assuming it applies, does not bar the government's use
of acquitted conduct in this case.2
Although we have not previously addressed whether
collateral estoppel prohibits the use of acquitted conduct to
revoke supervised release, we do not write on a blank page. In
United States v. Watts, the Supreme Court held that "an acquittal
in a criminal case does not preclude the [g]overnment from
relitigating an issue when it is presented in a subsequent action
governed by a lower standard of proof." 519 U.S. 148, 156 (1997)
(per curiam) (quoting Dowling v. United States, 493 U.S. 342, 349
(1990)). In Watts, the police discovered cocaine base and two
Apparently concerned that we might rule otherwise -- that
2
the Double Jeopardy Clause barred the government's use of acquitted
conduct to seek revocation -- the government, for the first time
on appeal, invokes the dual sovereignty doctrine to argue that
double jeopardy does not apply at all because the government sought
revocation on the basis of Frederickson's simultaneous violation
of state law. Since we are only assuming that collateral estoppel,
grounded in the Double Jeopardy Clause, applies here, we need not
consider the government's dual sovereignty argument.
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loaded guns in the defendant's home. Id. at 149. A jury convicted
the defendant of possession with intent to distribute but acquitted
on the charge of using a firearm in relation to a drug offense.
Id. at 149-50. At sentencing, the district court nevertheless
found by a preponderance of the evidence that the defendant had
used the guns in connection with the drug offense and, therefore,
was subject to an increased sentence. Id. at 150.
The Ninth Circuit vacated Watts' sentence and remanded
for resentencing. United States v. Watts, 67 F.3d 790, 796-98
(9th Cir. 1995). The circuit court reasoned that, although a
district court can consider conduct "other than that of which a
defendant was convicted" in calculating a sentence, it could not
"reconsider facts that the jury necessarily rejected by its
acquittal of the defendant on another count." Id. at 796.
The Supreme Court reversed, concluding that the Ninth
Circuit "failed to appreciate the significance of the different
standards of proof that govern at trial and sentencing," and
"misunderstood the preclusive effect of an acquittal" when it held
that the government was barred from relitigating the acquitted gun
charge at sentencing. Watts, 519 U.S. at 155. The Court explained
that "it is impossible to know exactly why a jury found a defendant
not guilty on a certain charge" in the absence of specific factual
findings. Id. An acquittal, the Court reasoned, does not
establish that the jury rejected any facts or concluded that the
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defendant was innocent of the charged conduct; it establishes only
that the government failed to prove an essential element of the
offense beyond a reasonable doubt. Id. Hence, the Court
concluded, the jury's acquittal on the gun charge did not "preclude
a finding by a preponderance of the evidence," at sentencing, "that
the defendant did, in fact, use or carry . . . a weapon . . . in
connection with a drug offense." Id. at 157. In other words,
collateral estoppel did not bar the district court's examination
of the acquitted conduct in light of the lower burden of proof.
See id.The subsequent proceeding here, a revocation hearing, is
similarly governed by a lower standard of proof. To prove
Frederickson violated the terms of his supervised release, the
government needed only to show by a preponderance of the evidence
that he committed a crime while on supervised release. See, e.g.,
United States v. Marino, 833 F.3d 1, 8 (1st Cir. 2016). Applying
the straightforward logic of Watts, we conclude, as have several
of our sister circuits, that the government's use of acquitted
conduct to prove assault by a preponderance of the evidence at
revocation does not violate principles of collateral estoppel.
See, e.g., United States v. Waller, 616 Fed. App'x 628, 629 (4th
Cir. 2015) (holding that "[b]ecause the standard of proof is less
than that required for a criminal conviction," a district court
may revoke supervised release "even if the defendant is acquitted
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on criminal charges arising from the same conduct"); Poirier v.
Doyle, 40 Fed. App'x 211, 213 (7th Cir. 2002) (allowing the
"revocation of parole [even when] based on criminal conduct for
which the defendant was acquitted"); see also United States v.
Teran, 98 F.3d 831, 836 (5th Cir. 1996) ("Regardless of [the
defendant's] acquittal by a jury, the revoking court had a
preponderance of evidence before it to support the finding of th[e]
probation violation."); United States v. McPherson, 814 F. App'x
957, 962 (6th Cir. 2020) (similar); Standlee v. Rhay, 557 F.2d
1303, 1305-06 (9th Cir. 1977) (similar).
Frederickson nevertheless argues that where, as here,
the acquitted conduct is the sole basis for a deprivation of
liberty rather than a factor in determining the degree of
punishment at sentencing, Watts is inapplicable and collateral
estoppel should apply. However, Frederickson misunderstands the
liberty interests at stake in a revocation hearing. Although
revocation often leads to reimprisonment, and thus "entail[s] a
loss of freedom and a deprivation of liberty," it is not considered
an independent criminal prosecution. Correa-Torres, 326 F.3d at
22. Revoking supervised release deprives an individual "only of
[] conditional liberty" dependent upon observing the restrictions
imposed by the district court as a condition of release from
imprisonment for the earlier criminal conviction. See Morrissey
v. Brewer, 408 U.S. 471, 480 (1972). For that reason, the grounds
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for revocation "need only be found by a judge under a preponderance
of the evidence standard, not by a jury beyond a reasonable doubt."
Johnson v. United States, 529 U.S. 694, 700 (2000).
Frederickson also contends that Watts is inapplicable
because a conclusive finding of self-defense can be gleaned from
the jury's verdict. He argues that, because he conceded that he
assaulted Walter -- though he disputes the severity of the assault
-- the only explanation for the jury's verdict of not guilty is
that he prevailed on his theory of self-defense.
Assuming arguendo that the jury's verdict was based on
self-defense, which, as we have explained, is impossible to know
conclusively, see Watts, 519 U.S. at 155, Frederickson's argument
would still fail because of the differing burdens of proof. At
trial, Frederickson initially was required only to proffer
evidence of self-defense that could support a reasonable jury
finding in his favor. See United States v. Bello, 194 F.3d 18, 27
(1st Cir. 1999) (quoting Mathews v. United States, 485 U.S. 58, 63
(1988)). Having met that low threshold, Frederickson was then
entitled to the instruction that the court gave, as we quoted in
Section I(B): that the government had the burden of disproving
self-defense beyond a reasonable doubt. See United States v. Wilk,
572 F.3d 1229, 1237-38 (11th Cir. 2009); Pattern Criminal Jury
Instruction for the District Courts of the First Circuit § 5.04
(1997); see also Tr. of Jury Trial Day 3 at 34, United States v.
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Frederickson, 4:19-cr-40039-LBM-1 (Dec. 1, 2019). Applying the
reasoning of Watts, the verdict for Frederickson only meant that
the government failed to disprove self-defense beyond a reasonable
doubt. The government faced a different, lesser burden at the
revocation hearing: disproving self-defense by a preponderance of
the evidence. See 18 U.S.C. § 3583(e)(3); see also Watts, 519
U.S. at 155-57.
Frederickson also invokes principles of fundamental
fairness to argue that collateral estoppel should apply because
the court, at the government's request, delayed the revocation
proceeding until after the criminal trial, allowing the government
to get the proverbial "second bite at the apple." This argument
misapprehends the dual effect of new criminal conduct committed
while on supervised release. In addition to running afoul of a
criminal statute, the offending conduct simultaneously and
independently violates the terms of release for the initial
offense. See United States v. McInnis, 429 F.3d 1, 5 (1st Cir.
2005). The government is entitled to pursue both a new criminal
conviction and revocation as "part of the penalty for the initial
offense." Id. In doing so, nothing compels the government to
choose a particular sequence because a violation of supervised
release does not depend upon whether the violative conduct is the
subject of a criminal charge or conviction. U.S. Sent'g Guidelines
Manual § 7B1.1, cmt. 1 (U.S. Sent'g Comm'n 2018) (explaining how
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to calculate the grade of a supervised release violation).
Practically speaking, the government may seek to secure a criminal
conviction first because, once it has proven that the defendant
committed a new crime beyond a reasonable doubt, that conviction
necessarily demonstrates by a preponderance of the evidence at
revocation that the defendant violated the terms of supervised
release by committing a new crime.
Frederickson nevertheless urges us to adopt the
reasoning of Commonwealth v. Brown, 469 A.2d 1371 (Pa. 1983), a
case that predates Watts, in which the Supreme Court of
Pennsylvania concluded that Pennsylvania law reflects a "clear
assumption" that when a revocation hearing is delayed until after
a criminal trial based on the same conduct, "the [government] will
be bound by the finding of the criminal trial" at the revocation
hearing. Id. at 1376-78. Pennsylvania law obviously does not
apply in this case, and Frederickson does not point to any similar
assumption in federal law. Indeed, as we have explained, nothing
prohibits the government from seeking, in no particular order, to
hold a defendant accountable for both committing a new criminal
offense and violating a term of supervised release.
Lastly, Frederickson argues that delaying his revocation
hearing until after his trial deprived him of procedural due
process. Frederickson misunderstands the procedures due him prior
to revoking his supervised release. In the context of revocation,
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procedural due process is satisfied if, in a timely manner, the
defendant is afforded,
(A) written notice . . . ; (B) disclosure of
the evidence against [him]; (C) an opportunity
to appear, present evidence, and question any
adverse witness unless the court determines
that the interest of justice does not require
the witness to appear; (D) notice of [his]
right to . . . counsel . . . ; and (E) an
opportunity to make a statement and present
any information in mitigation.
Fed. R. Crim. P. 32.1(b)(2). Frederickson does not argue that he
was deprived of any of those procedural protections. Moreover, at
Frederickson's revocation hearing, which occurred less than five
months after the assault on Walter, the court relied, almost
exclusively, on evidence proffered and examined at trial. In
effect, then, Frederickson received much more than due process
requires at revocation: he received all of the due process
protections that come hand-in-hand with a criminal trial on the
merits. Frederickson's due process argument fails.
B. Sufficiency of the Evidence
Frederickson contends that even if acquitted conduct can
be used to revoke supervised release, the evidence presented by
the government was insufficient to prove, by a preponderance of
the evidence, that he committed an assault and was not acting in
self-defense. We review a district court's decision to revoke
supervised release for abuse of discretion and factual findings
supporting that decision for clear error. Oquendo-Rivera, 586
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F.3d at 66-67. As we have previously recognized, sufficiency
challenges to supervised release revocations are "notoriously hard
to win," because (1) we must view the evidence in the light most
favorable to the government, (2) the district court's choice among
competing, yet plausible, inferences from the evidence does not
amount to clear error, and (3) credibility determinations are
primarily for the district court. Marino, 833 F.3d at 8.
The district court concluded that Frederickson did not
act in lawful self-defense when he assaulted Walter because "[e]ven
if [Frederickson] believed that Paul Walter unlawfully had
physical contact with him, [Frederickson] used more force than
appeared reasonably necessary in the circumstances." Frederickson
contends that the record does not support the severe, protracted
assault described by the court. Frederickson points to
inconsistencies between Walter's testimony, Officer Skal's
testimony, and Walter's medical records. He also questions the
district court's reluctance to credit his claim of sexual assault.
At trial, Walter testified that the assault began with
a closed fist punch delivered by Frederickson to Walter's left
eye. He then described the ensuing altercation as follows:
Mr. Frederickson grabbed me in a front
chokehold, slammed my head against the wall,
the table, and eventually to the floor. . . .
As I was kicking the door and I still had air
to speak, I was screaming for help, kicking
the door, the floors, walls, in an attempt to
make any noise so somebody could hear
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me. . . . I felt a lot of pain and kind of,
I guess, shock. . . . I was being strangled
against my will . . . . [I said] You're going
to kill me. . . . I told [Officer Skal] "Get
him off me. He's going to kill me." . . .
Officer Skal left the bathroom. . . . At this
point I had pretty much given up that anybody
was going to be in the office. . . . My body
began to not tense up as much, and I kind of
accepted that I might be breathing my last
breath underneath that toilet. . . . Some
time later [Officer Skal] came [back] . . . .
Mr. Frederickson was still on top of me.
Officer Skal told him to "Get off him," and
Mr. Frederickson eventually complied with
that. . . . [After Frederickson left,] I
attempted to get up . . . . I got out towards
the lobby door, crawling. I then attempted to
stand up, and I fell over and slammed my head
against the wall in the lobby.
Walter testified that when he went to the hospital, he
was experiencing severe symptoms:
[His] face felt extremely swollen . . . [his]
jaw [felt] broken. [He] couldn't really open
[his] left eye. [His] leg was extremely
strained. [He] couldn't really walk. [His]
neck was strained . . . . [He] had a cut in
. . . [his] back [and] head and swelling of
the back of [his] head.
He further testified that he told the doctors that he had sustained
a punch to the face with a closed fist, he was strangled, his leg
hurt, his face was swollen, and he had a headache.
Frederickson points to notes in the emergency room
doctor's medical report indicating that Walter was negative for
neck pain, skin wounds, dizziness, trouble swallowing, nosebleeds,
nausea, change in vision, and headaches, as support for his
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argument that the assault was not as severe as Walter claimed at
trial. Although there were small discrepancies in the report vis-
á-vis Walter's testimony, the medical records in their totality
support Walter's description of a severe assault. The records
identify Walter's reason for visiting the emergency room as an
"assault[] while at work . . . in locked bathroom, [patient] was
punched to [left] side of face, slammed down on the ground, hit
[right] side of face, strangled [for] 'a couple minutes.'" The
records further state that Walter presented as "assaulted by
client, was choked and struck with fist on left jaw," reported
pain in his jaw and leg, was positive for facial swelling, and
contusions of the head and face. Moreover, the court placed
considerable weight on the photographs of Walter's injuries and of
blood on the wall after the altercation. The court also found the
corroborating testimony of Officer Skal "utterly credible."
Officer Skal's testimony did corroborate Walter's
description of the assault in all major respects. Specifically,
Officer Skal testified that he heard thumping in the bathroom,
opened the bathroom door, saw Frederickson on top of and choking
Walter, perceived the situation as "extremely dangerous," and
immediately retreated to call 911. The assault then continued
while Officer Skal left the bathroom, called 911, reported the
assault, and entered the bathroom a second time to observe
Frederickson still on top of Walter. Officer Skal further
- 23 -
testified -- and Officer Garlick later corroborated -- that
Frederickson had no visible injuries following the altercation.
Frederickson points to several inconsistencies in the
testimony of Walter and Officer Skal: (1) Walter said the reason
Officer Skal entered the bathroom was that Walter was screaming
for help and kicking the door, floor, and wall, while Officer Skal
testified that it was because he heard a "thumping sound, almost
like a bowling ball hitting a marble floor"; (2) Walter testified
that his head was under the toilet when Officer Skal entered the
bathroom, while Officer Skal testified that Walter's head was
"positioned almost under the sink"; (3) Walter testified that he
and Frederickson were in the same spot when Officer Skal returned
the second time, while Officer Skal testified that "[t]hey were
not . . . [and Walter's] body was a little bit more upright"; and
(4) Walter testified that he got out of the bathroom by crawling
out of the door and into the lobby covered in blood, while Officer
Skal testified that he helped Walter out of the bathroom.
The minor inconsistencies cited by Frederickson do not
undermine the court's determination that the combined testimony of
Walter and Officer Skal supported Walter's version of events. The
court explained that Officer Skal "was there. He heard what was
happening. He opened the door twice, and both times saw [Mr.]
Walter being assaulted in a manner consistent with Mr. Walter's
testimony." As we have explained, credibility determinations are
- 24 -
primarily for the district court, Marino, 833 F.3d at 8, and the
court resolved the inconsistencies cited by Frederickson by
explaining, "I think both Officer Skal and Walter [we]re [] in
shock on some level, and so the fact that they might not remember
certain details about the way the legs were and the arms were
flailing during the assault, that in the [c]ourt's view, is
understandable."
Frederickson also contends that the court erred in
doubting his allegation of sexual assault primarily because he
failed to report the assault. Frederickson faults the court for
"speculating" and "prescrib[ing]" how he should have processed the
assault. At the revocation hearing, the court concluded that it
could discern no reason for Frederickson's failure to tell Officer
Skal or Officer Garlick that he was sexually assaulted, or to
otherwise report Walter for such a serious offense. As we describe
in more detail when discussing the reasonableness of
Frederickson's sentence, the court's skepticism regarding
Frederickson's alleged failure to report was but one factor
supporting its conclusion that Frederickson lacked credibility.3
3 See, e.g., Reyes v. Mitchell, 2020 WL 1550238, No. 18-40147-
WGY, slip op. at 10-13 (D. Mass. Apr. 1, 2020) (explaining that a
delay or failure to report a sexual assault can be used to impeach
a witness' credibility). That is not to say, however, that a delay
or failure to report should be viewed uncritically as the sole
basis for disbelieving a victim of sexual assault. Indeed,
research shows that sexual assault victims "experience a range of
conduct, suffer a range of harms, [] respond [to assault] in
- 25 -
Viewing the evidence in the light most favorable to the
government, as we must, we conclude that the district court's
finding that Frederickson assaulted Walter in excess of the bounds
of lawful self-defense is not clearly erroneous and, therefore,
the court did not abuse its discretion in revoking Frederickson's
supervised release.
C. Reasonableness of the Sentence
Frederickson claims that the court erred in imposing an
unreasonably long sentence based on improper sentencing factors
and without resolving critical factual conflicts. We review a
district court's chosen sentence for abuse of discretion. United
States v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011). The
"touchstone" of our review is reasonableness, which may involve
both procedural and substantive inquiries. Id.In assessing procedural unreasonableness, we ask whether
the court made any procedural errors during the sentencing phase,
such as "failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to
consider the 18 U.S.C. § 3553(a) factors, selecting a sentence
divergent ways," and may choose not to report or to delay reporting
because they feel responsible, embarrassed, ashamed, or for a
variety of other reasons. See, e.g., Jamie R. Abrams, The #METOO
Movement: An Invitation for Feminist Critique of the Rape Crisis
Framing, 52 U. Rich. L. Rev. 749, 772-776 (May 2018); see also
Kathryn M. Stanchi, The Paradox of the Fresh Complaint Rule, 37
B.C.L.R. 441, 459-462 (May 1996).
- 26 -
based on clearly erroneous facts, or failing to adequately explain
the chosen sentence -- including an explanation for any deviation
from the Guidelines range." United States v. Politano, 522 F.3d
69, 72 (1st Cir. 2008) (quoting Gall v. United States, 522 U.S.
38, 51 (2007)). If no procedural errors have been committed, and
the appellant is arguing substantive unreasonableness, we ask
whether the district court provided a "plausible" explanation for
its sentencing determination and whether, based on the totality of
the circumstances, the overall result is "defensible." United
States v. Innarelli, 524 F.3d 286, 292 (1st Cir. 2008).
Frederickson says that he is challenging only the
substantive reasonableness of his sentence but, as the government
notes, two of his arguments -- that the court failed to consider
all appropriate sentencing factors and failed to resolve critical
factual issues -- raise procedural concerns. See Politano, 522
F.3d at 72. Hence, we begin our review of the alleged procedural
errors with a brief overview of Frederickson's sentencing hearing.
The court began its sentencing explanation by stating
that the applicable guidelines range of twelve to eighteen months
in prison was insufficient, and that Frederickson's conduct
warranted an upward variance to the maximum allowable sentence.
The court remarked that it viewed even that sentence -- twenty-
four months in prison and eight months on supervised release -- to
be inadequate, but the sentence could not exceed the statutory
- 27 -
maximum. The court proceeded to explain that it had considered
all relevant factors, including the nature and circumstances of
the violation as well as Frederickson's criminal history and
personal characteristics, and determined that a statutory maximum
sentence was not greater than necessary.
The court outlined the two primary goals served by its
sentence: general deterrence and public protection. The court
explained that a severe sentence was warranted to deter others
from assaulting members of the U.S. Probation Office while on
supervised release, which is designed to help federal prisoners
reintegrate into society. The court also noted that Frederickson's
history of violent crime and his two previous violations of
supervised release within the prior year -- one for assaulting his
parents and one for participating in an unarmed robbery -- made
him a "menace" and a danger to the public. According to the court,
by committing yet another offense while on supervised release,
Frederickson "thumbed [his] nose at the [c]ourt, at Probation, and
at law enforcement" and demonstrated that he could not be trusted
to comply with the terms of continued supervised release.
Frederickson contends that the court's focus on those
two goals demonstrates that the sentence was improperly driven by
a vindictive motive and that the court failed to take mitigating
factors into account. We disagree. Frederickson points to nothing
in the court's sentencing colloquy that demonstrates an improper
- 28 -
motive. See United States v. Pimienta-Redondo, 874 F.2d 9, 13
(1st Cir. 1989) ("Absent proof of an improper motive -- or some
sound reason to suspect the existence of one -- no reasonable
apprehension of vindictiveness can flourish."). To the contrary,
the court explained that it had considered each of the factors
prescribed by statute for determining the appropriate sentence for
a violation of supervised release, which include "the history and
characteristics of the offender; the nature and circumstances of
the new offense; the need to deter further criminal conduct; and
the need to protect the community from the offender's penchant for
criminal behavior." United States v. Márquez-García, 862 F.3d
143, 145 (1st Cir. 2017) (citations omitted); see also 18 U.S.C.
§§ 3583(e), 3553(a).4
The court further explained that it had reviewed all of
the information submitted by both parties, including factual
objections and legal arguments, Walter's victim impact statement,
Frederickson's supervised release violation report, the parties'
sentencing memos, and the letters of support from Fredrickson's
family and friends. The court even remarked that the letters
submitted on Frederickson's behalf, which, according to the court,
portrayed someone very different from the person described in the
4Section 3583(e) directs a district court to consider the
sentencing factors set forth in § 3553(a) in determining whether
to modify or revoke a defendant's supervised release.
- 29 -
violation report, provided a glimmer of hope that Frederickson may
receive familial support upon his release from prison.
That the court chose to highlight only two factors in
more detail -- deterrence and public protection -- does not
undermine the "significant weight" we afford a court's statements
regarding the factors and information it considered at sentencing.
Márquez-García, 862 F.3d at 145 ("Although a sentencing court must
consider each of the factors that section 3583(e) identifies, the
court is not obliged to address these factors 'one by one, in some
sort of rote incantation when explicating its sentencing
decision.' Rather, the court need only identify the principal
factors upon which it relies to reach its sentencing decision."
(citations omitted) (quoting United States v. Dixon, 449 F.3d 194,
205 (1st Cir. 2006))); United States v. Santiago-Rivera, 744 F.3d
229, 233 (1st Cir. 2014) ("[T]he sentencing judge explicitly noted
that he had considered all of the section 3553(a) factors. Such
a statement is entitled to significant weight . . . .").
Frederickson also claims that the court failed to
resolve factual conflicts regarding the impetus, nature, and
extent of the assault. According to Frederickson, the court failed
to adequately explain which version of events it found credible
and, therefore, the lengthy sentence it imposed is not supportable.
Here, too, we disagree. Immediately prior to sentencing, while
revoking Frederickson's supervised release, the court explained
- 30 -
that it found the testimony of Walter "credible by a preponderance
of the evidence" and the testimony of Officer Skal "utterly
credible." It further concluded that Frederickson's conduct
reflected that he had a "serious issue, a serious problem" and
that he did not act in lawful self-defense when he assaulted
Walter.
As Frederickson points out, the court's statements do
not include an explicit finding that Frederickson was not credible
or that he lied about being sexually assaulted by Walter.
Nevertheless, we read the court's findings as a rejection of
Frederickson's version of events. As noted, the court began its
findings by expressing considerable skepticism regarding
Frederickson's testimony, discerning "no reason for Mr.
Frederickson not to say to Officer Skal or to anyone that night
that . . . 'I was sexually assaulted. . . . I'm on top of him
because he assaulted me.'" The court further commented that the
evidence showed that "Mr. Frederickson remained without any sort
of responsiveness and didn't mention to Officer Garlick, who
apparently knows the family, 'Officer Garlick, I was sexually
assaulted' and talk to him, tell him that. Nothing. There was
nothing that was mentioned." The court went on to carefully
explain how, in its view, virtually all of the evidence
corroborated Walter's version of events. It explicitly found
- 31 -
Walter's testimony, as corroborated by the only eyewitness,
Officer Skal, credible and supportable.
The court further described Frederickson's conduct as
"gravely concerning," and it concluded that Frederickson had
proven "that [he] cannot be trusted to comply with the terms and
conditions of supervision." The court stated that "if [it] could
order [him] to be locked up for longer, [it] would" because "[t]he
public deserves that[,] Paul Walter deserves that[,] [e]very
probation officer deserves that." The court warned Frederickson
that "if you come before this [c]ourt ever again and if you lay
hands on one other person, you will not get probation and
interactive journaling. No. You will get the sentence that you
deserve."5
Juxtapose those statements with the court's praise of
Walter's work as a Probation intern "working with [Frederickson,]
supervising [his] drug testing," "engaging with [him] in
interactive journaling," and "working with [him] to help [him]
integrate into society, become law-abiding." Indeed, speaking
directly to Walter, the court said:
You must not turn away from a career in
criminal justice based on this hideous
experience. . . . You became a victim because
of your service, because of your courage, and
5 Interactive journaling is a "cognitive behavioral treatment
approach" in which a member of the Probation Office assists ex-
convicts with journaling to help "[i]dentify [their] thoughts and
actions leading to behaviors."
- 32 -
I hope you redouble your efforts. I trust
that you will have support along the way. You
did not deserve this, sir, but thank you for
your service.
In short, the court's statements reflect an adoption of
Walter's version of events, which necessarily entails a rejection
of Frederickson's allegation of sexual assault. Contrary to
Frederickson's assertions, the court did not leave unresolved a
critical factual dispute between Walter and Frederickson and,
thus, we discern no procedural unreasonableness with
Frederickson's sentence.
Turning to substantive reasonableness, we must consider
whether the challenged sentence falls within the "expansive
'universe of reasonable sentencing outcomes.'" United States v.
Díaz-Lugo, 963 F.3d 145, 157 (1st Cir. 2020) (quoting Clogston,
662 F.3d at 592). In doing so, we may not substitute our own
judgment for the judgment of the sentencing court. Id. "[A]s
long as the sentencing court has mulled all the relevant factors,"
and reached a defensible result, Frederickson cannot prevail by
merely complaining about the court's assessment of those factors.
Id.As explained above, the court considered each of the
statutory factors, see 18 U.S.C. §§ 3583(e), 3553(a), finding that
Frederickson committed a serious violent offense, had a proclivity
for recidivism, and was a danger to the public. The court weighed
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the last two factors the heaviest, concluding that Frederickson
was a menace and that his two prior supervised release violations
demonstrated a lack of appreciation for the terms of supervised
release and the judicial system as a whole. The circumstances of
Frederickson's prior violations support the court's conclusion.
In March 2018, Frederickson pled guilty to assaulting
both of his parents. Following an argument, Frederickson violently
pushed them both to the ground and caused his father to flee the
home. His parents were both granted emergency restraining orders.
Frederickson was found in violation of his supervised release and
sentenced to time served, followed by twenty-four months of
supervised release.
Frederickson was found in violation of supervised
release again in October 2018. While responding to a report of an
unarmed robbery of a woman in Worcester, a police officer
identified and pulled over a suspected vehicle. Frederickson was
driving the vehicle, and the woman's purse, which contained a
bottle of unspecified pills, was found inside. He was sentenced
to four months' imprisonment, followed by twelve months of
supervised release.
Given the violent circumstances of this offense and the
court's explicit consideration of Frederickson's prior supervised
release violations, we conclude that the court applied the
appropriate sentencing factors, provided a plausible rationale for
- 34 -
its judgment, and imposed a defensible sentence based on its
supportable view of the facts. Frederickson's sentence was
substantively reasonable.
Affirmed.
- DISSENTING OPINION FOLLOWS -
- 35 -
BARRON, Circuit Judge, dissenting. The majority
concludes that the District Court implicitly found that Daniel
Frederickson was not telling the truth about what had been done to
him right before he violently lashed out at the probation officer
who was overseeing his drug test, see Slip Op. at 32, and that the
District Court relied on that implicit finding to justify its
decision to revoke Frederickson's supervised release in full, see
id. at 32-34. The majority relies for this conclusion chiefly on
the passages in the District Court's opinion that praise without
qualification the probation officer for his service, see id. at
34, and that question why Frederickson did not tell anyone about
his allegation that the officer assaulted him right beforehand,
see id. at 33. But, while those statements do provide some support
for the majority's characterization of the District Court's
reasoning, other statements in the District Court's opinion point
against it and prevent me from signing on to the majority's ruling.
For starters, the District Court stated in describing
the basis for finding that Frederickson had violated the terms of
his supervised release that "[e]ven if [he] believed that [the
officer] unlawfully had physical contact with him, [he] used more
force than appeared reasonably necessary in the circumstances."
(emphasis added). Far from rejecting the credibility of
Frederickson's claim that he had been assaulted first, that
statement expressly concludes that his manner of attacking the
- 36 -
officer was itself so violent that it constituted a criminal
assault no matter what had occurred beforehand.
Several other statements by the District Court then go
on to reinforce the impression that it was focused on the
especially violent nature of Frederickson's attack, rather than
whether he had been victimized in his own right first. The
District Court states at one point, for example, that while
Frederickson "testified that [the officer] touched him
inappropriately one time at the beginning of the encounter," there
was "[n]o testimony of any other unlawful contact or that [the
officer] responded to the defendant's punch with ongoing unlawful
force or contact, and yet [] Frederickson's assault on [the
officer] continued." (emphasis added). The District Court then
emphasizes at another point that, in its view, there was
"additional proof that more force was used than necessary,"
(emphasis added), namely the extent of the officer's injuries as
documented by photographs, his testimony, and his hospital
records.
Further, when the District Court states that
Frederickson's attack on the officer was "out of the blue," it
qualifies that assertion by noting that such a description of the
event was "according to" the officer. It thus appears to be
relying on a fact that it determined was "frankly . . . undisputed"
-- specifically that "Frederickson admitted that he sucker
- 37 -
punched" the officer -- and that in and of itself hardly undermines
Frederickson's account of what had been done to him. Additionally,
when the District Court states that it "f[ound] [the officer's]
testimony about the assault credible by a preponderance of the
evidence," it refers specifically to the violence that
Frederickson used in attacking the officer and not to what had
transpired just before.
Finally, by the time of the revocation decision, a jury
had already acquitted Frederickson of the assault at issue after
it had been instructed that the government needed to prove beyond
a reasonable doubt that Frederickson was not acting in self-defense
and after it had heard Frederickson testify that he had been
sexually assaulted in the restroom. I agree that the District
Court was not bound by that jury's verdict, see United States v.
Paneto, 661 F.3d 709, 715 (1st Cir. 2011), and there are certainly
grounds to doubt Frederickson's account. But, I am still hesitant
to conclude that the District Court intended to reject without
ever expressly saying so a seeming premise of that jury’s verdict
-- namely, that Frederickson was credible in contending that he
had been sexually assaulted immediately prior to attacking the
officer. See Dimick v. Schiedt, 293 U.S. 474, 486 (1935)
("Maintenance of the jury as a fact-finding body is of such
importance and occupies so firm a place in our history and
jurisprudence that any seeming curtailment of the right to a jury
- 38 -
trial should be scrutinized with the utmost care."); United
States v. Bell, 808 F.3d 926, 928 (D.C. Cir. 2015) (Kavanaugh, J.,
concurring in the denial of petitions for rehearing en banc)
("[F]ederal district judges have power in individual cases to
disclaim reliance on acquitted or uncharged conduct."); United
States v. McReynolds, 964 F.3d 555, 565 (6th Cir. 2020) (explaining
that the fact that a district court may rely on acquitted conduct
at sentencing "is not a greenlight for the district court to do
whatever it wants at sentencing regardless of the jury's verdict
and without explanation"); cf. United States v. Lombard, 102 F.3d
1, 5 (1st Cir. 1996) ("Certainly situations exist where the
sentencing court might persuasively explain the use of acquitted
conduct.").
Thus, for these reasons, unlike the majority, I am
uncertain whether the District Court settled on the complete
revocation of Frederickson's supervised release because it
disbelieved his story altogether, because it believed his claim
that he had been sexually assaulted while taking the drug test but
concluded that his violent response was grossly disproportionate,
or because it thought that it was so evident that his violent
conduct was of a kind that warranted such a revocation (at least
given the evidence of his past violence while on supervised
release) that there was no need to make a finding one way or the
other as to whether he had been assaulted first or not.
- 39 -
Accordingly, in my view the proper course is to vacate and remand
the District Court's revocation decision so that it may clarify
the rationale for it and thereby ensure that Frederickson receives
the kind of explanation to which he is entitled for this severe
punishment. See United States v. Ofray-Campos, 534 F.3d 1, 43
(1st Cir. 2008) (finding procedural error where the district
court's explanation for a significant upward variance was "neither
sufficiently particularized nor compelling to survive . . . review
for reasonableness"). I therefore respectfully dissent.
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