United States v. Casiano

• Court: Court of Appeals for the First Circuit
• Decided: June 27, 1994
• Docket: 93-1782
• Status: Published

Opinion

USCA1 Opinion

June 24, 1994           [Not for Publication]
                                [Not for Publication]

                            United States Court of Appeals
                            United States Court of Appeals
                                For the First Circuit
                                For the First Circuit
                                 ____________________

        No. 93-1782

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                   PASCUAL CASIANO,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF MASSACHUSETTS

                    [Hon. Jack E. Tanner,* Senior District Judge]
                                           _____________________
                                 ____________________

                                        Before

                                Breyer,** Chief Judge,
                                          ___________
                            Bownes, Senior Circuit Judge,
                                    ____________________
                              and Stahl, Circuit Judge.
                                         _____________
                                 ____________________

            John B. Shorton for appellant.
            _______________
            Joseph  F. Savage,  Jr., Assistant  United States  Attorney,  with
            _______________________
        whom  Donald  K.  Stern, United  States  Attorney,  was  on brief  for
              _________________
        appellee.
                                 ____________________

____________________
        ____________________
        *Of the Western District of Washington, sitting by designation.
        **Chief  Judge Stephen Breyer heard  oral argument in  this matter but
        did not  participate in the  drafting or  the issuance of  the panel's
        opinion.  The  remaining two  panelists therefore  issue this  opinion
        pursuant to 28 U.S.C.   46(d).

Per Curiam.   In this appeal,  defendant-appellant
                       __________

            Pascual Casiano challenges his convictions for conspiracy, 18

            U.S.C.    371,  aiding  and abetting  an attempted  extortion

            under  color of  official  right, 18  U.S.C.     2  and  1951

            (hereinafter   "the  Hobbs  Act   violation"),  making  false

            statements to a grand jury, 18 U.S.C.   1623, and obstruction

            of justice, 18  U.S.C.   1503.   After carefully  considering

            Casiano's appellate arguments, we affirm.

                                          I.
                                          I.
                                          __

                                      BACKGROUND
                                      BACKGROUND
                                      __________

                      The  facts of this case need not be stated in great

            detail.    Casiano  was a  used  car  salesman  who lived  in

            Dorchester,  Massachusetts.    Casiano's codefendant,  Daniel

            Sheehan, was an  employee of the City  of Boston Inspectional

            Services  Department  ("BISD"),   which  is  responsible  for

            issuing towing  and building occupancy permits.   Sheehan had

            particular expertise  as  a member  of the  "auto team"  that

            issues licenses  relating to  towing businesses and  used car

            sales in the City of Boston.

                      The evidence  adduced  at trial  established  that,

            over  a number  of  years, Casiano  brought  people who  were

            seeking  assistance  with the  City's  permitting  process to

            Sheehan, and that Sheehan used his position with BISD to help

            them.   There was, however, a catch; Sheehan's "help" did not

            come free.

-2-
                                          2

Although the prosecution's case encompassed several

            incidents  in which  Casiano  brought people  to Sheehan  for

            assistance, it  centered on Casiano's  and Sheehan's  actions

            with regard to one Jose Arocho in 1991 and 1992.   Throughout

            1991, Arocho was having trouble obtaining a used car dealer's

            license  from BISD for his business at 25 West Cottage Street

            in  Dorchester.    During  this  same  time  period,  Casiano

            repeatedly approached Arocho and informed  him that he had  a

            friend  at BISD who, if paid, would solve his permit problem.

            At first, Casiano indicated that the  problem could be solved

            for $5,000.   Later, the price  was set at $10,000.   Arocho,

            however, refused to make any illegal payments.

                      Finally, on September 5,  1991 (and after months of

            badgering by  Casiano), Arocho  met with Casiano  and Sheehan

            about his  continuing problems.  Fearing  a shakedown, Arocho

            surreptitiously taped  the meeting.  At  the meeting, Sheehan

            and Casiano explicitly stated that  Sheehan might be able  to

            help  Arocho, but  that  Sheehan's help  would cost  $15,000.

            Arocho  did not  agree to  pay, but  kept the  door  open for

            additional meetings.  Subsequently,  Arocho contacted the FBI

            and, with its assistance, attempted  to tape and actually did

            tape  several  additional   conversations  between   himself,

            Casiano, and Sheehan.

                      In June 1992, Casiano and Sheehan appeared before a

            federal grand jury  and falsely testified  that they had  not

-3-
                                          3

attempted to extort illegal payments from  Arocho.  They also

            falsely testified that the $15,000 payment was Arocho's idea.

            In  December   1992,  the  grand  jury   issued  a  six-count

            indictment charging Casiano and Sheehan with the crimes noted

            in the first  paragraph of  this opinion.   After a  five-day

            jury trial, Casiano and Sheehan were convicted on all counts.

            This appeal followed.

                                         II.
                                         II.
                                         ___

                                      DISCUSSION
                                      DISCUSSION
                                      __________

                      On appeal, Casiano makes  two arguments.  First, he

            contends  that  he was  denied  his  right  to the  effective

            assistance of counsel.  Second, he argues that his conviction

            for violating  the Hobbs Act must be set aside because he was

            not  acting or  purporting to  act "under  color of  official

            right."    See  18 U.S.C.     1951(b)(2).    We discuss  each
                       ___

            argument in turn.

            A.  Right to Effective Counsel
            A.  Right to Effective Counsel
            ______________________________

                      Casiano's right to  effective assistance of counsel

            argument  arises out  of  an unfortunate  episode which  took

            place in the course  of the government's cross-examination of

            Sheehan, who had taken  the stand in his own  defense.  About

            halfway  through  this  cross-examination,   Casiano's  trial

            counsel  objected to a question posed by the prosecutor.  The

            trial court  overruled the objection,  informing counsel,  in

            effect,  that he could not object because the witness was not

-4-
                                          4

his client.  The prosecutor then posed the same question, and

            Casiano's  counsel again  objected.   In response,  the court

            told  counsel to  sit down  and dismissed  the jury  from the

            courtroom.   At this point, the court  again informed counsel

            that  he could  not object  because the  witness was  not his

            client.   The jury returned and  cross-examination continued.

            During  the next  several  minutes,  Casiano's trial  counsel

            interposed  several  more  objections,  each   of  which  was

            summarily overruled.

                      Eventually, the  court ordered a  short recess  and

            again  dismissed the jury from the courtroom.  At this point,

            the court  informed Casiano's  trial counsel  that he  was in

            contempt of  court for disregarding the court's  order not to

            object during the government's  cross-examination.  After the

            jury  returned, Casiano's  counsel  remained largely  silent1

            for  the rest  of the  cross-examination.   Subsequently, the

            court sanctioned him.

                      As an  initial matter, we note that the record does

            not reflect  that the trial court  restricted Casiano's right

            to object  out  of concern  that  the objections  were  being

            interposed  for an  improper  purpose such  as harassment  or

            delay.    Instead, it  appears  that the  court  premised its

____________________

            1.  At one point, Casiano's counsel exclaimed, "Oh, wait a --
            "  in  response  to  a  question  posed  by  the  prosecutor.
            Sheehan's  trial counsel also objected to this question.  The
            trial court sustained the objection.

                                         -5-
                                          5

restriction  upon a view that  counsel had no  legal right to

            object  because the witness was  not his client.   We cannot,

            however,  locate any  authority  which supports  this ruling.

            Moreover,  we  see no  purpose for  such  a rule;  after all,

            Sheehan's   testimony,   which   covered   aspects   of   his

            relationship  with  Casiano,  certainly implicated  Casiano's

            interests.  Accordingly, we will proceed under the assumption

            that the court's restriction was improper.

                      Casiano's right to effective assistance argument is

            framed  in two separate ways.  First, Casiano claims that the

            trial  court's actions rendered  his counsel constitutionally

            "ineffective"  from  the  time   he  was  sanctioned  to  the

            conclusion  of the government's cross-examination of Sheehan.

            In the  alternative, Casiano argues that  the court's actions

            completely  deprived him of the right  to counsel during this

            same period.

                      Ordinarily,   we   do   not   address   ineffective

            assistance  claims  raised  for  the first  time2  on  direct

            appeal.  E.g., United States v. Jadusingh, 12 F.3d 1162, 1169
                     ____  _____________    _________

            (1st Cir. 1994).  In situations like this one, however, where

            there is no dispute over the critical facts and the record is

            sufficiently developed, we  may exercise  our discretion  and

            reach the  merits  of a  newly-raised ineffective  assistance

____________________

            2.  The record  does not indicate that  Casiano presented his
            ineffective  assistance claim  to the  district court  in the
            first instance.

                                         -6-
                                          6

argument.   See, e.g., United States v. Fermin Ortiz, No. 93-
                        ___  ____  _____________    ____________

            1359, slip op. at 11-12 (1st Cir. May 5, 1994).

                      To    demonstrate   constitutionally    ineffective

            assistance of  counsel, a  defendant must establish  that (1)

            counsel's  conduct  fell  below the  applicable  standard for

            performance,  defined by what s/he knew  or should have known

            at  the time s/he made the relevant tactical choices; and (2)

            that  prejudice  resulted.   Id. at  12.   "In  this context,
                                         ___

            `prejudice'  means  that,  but for  counsel's  unprofessional

            error, there is a  reasonable probability that the  result of

            the proceedings  would have  been different."   Id. (applying
                                                            ___

            the standard set forth in  Strickland v. Washington, 466 U.S.
                                       __________    __________

            668, 687 (1984)).

                      Leaving aside the obvious difficulties  in applying

            the  Strickland  standard   in  a  context  where   counsel's
                 __________

            complained-of  tactical choices were  imposed by court order,

            we conclude that Casiano's ineffective assistance claim  must

            fail for a  lack of prejudice.  Casiano  does not explain how

            there is a reasonable  probability that the proceedings would

            have turned out  differently if his counsel had  been allowed

            to  object during  that  portion of  the government's  cross-

            examination in  which he  was effectively silenced.   Indeed,

            Casiano does not even point to any one question which, in his

            view, was improper.  Moreover, our independent review  of the

            record convinces us  beyond any doubt whatsoever that, if any

-7-
                                          7

improper question was  posed during this  period, it did  not

            alter the outcome of the trial.

                      Casiano's  deprivation  of  the  right  to  counsel

            argument  differs  from his  ineffective  assistance argument

            because, "when  a defendant is  deprived of the  presence and

            assistance of his attorney, either throughout the prosecution

            or during a critical stage in, at least, the prosecution of a

            capital  offense,  reversal  is  automatic."     Holloway  v.
                                                             ________

            Arkansas,  435  U.S. 475,  489 (1978).    The Court  has been
            ________

            clear, however,  that application of  the harmless-error rule

            is  appropriate where the deprivation of the right to counsel

            is limited and does not infect an entire, noncapital criminal

            proceeding such as this  one.  See Satterwhite v.  Texas, 486
                                           ___ ___________     _____

            U.S.  249, 257-58  (1988).   We  think  that the  restriction

            imposed by the trial court here, even if properly viewed as a

            deprivation  of the right to counsel, was so limited in scope

            and effect that an  application of harmless-error analysis is

            appropriate.  See  id.  And, as we  indicated above, we think
                          ___  ___

            it beyond any reasonable  doubt that the error  committed did

            not contribute  to  the verdict  obtained.   See  Chapman  v.
                                                         ___  _______

            California, 386 U.S. 18, 24 (1967).
            __________

                      Accordingly,  we reject Casiano's argument that the

            restriction  imposed  upon  his  trial  counsel   during  the

            government's  cross-examination  requires  reversal   of  his

            convictions.

-8-
                                          8

B.  Hobbs Act Violation
            B.  Hobbs Act Violation
            _______________________

                      Casiano's  second argument  is that  his conviction

            under  the Hobbs  Act for  aiding and  abetting an  attempted

            extortion was  improper because he was not  a public official

            and  therefore could  not have  been acting  "under color  of

            official   right."     18  U.S.C.      1951(b)(2)   (defining

            "extortion" as,  inter alia, "the obtaining  of property from
                             _____ ____

            another,  with  his consent,  induced .  .  . under  color of

            official right").  Because Casiano did not make this argument

            below,  our  review  is  limited  to whether  his  Hobbs  Act

            conviction was  plainly  erroneous.   See  Fed. R.  Crim.  P.
                                                  ___

            52(b).

                      We discern  no error at all in this case.  First of

            all,  one need not be an elected or appointed public official

            even to be  convicted as  a principal under  the Hobbs  Act's
                                  __  _ _________

            "color of official  right" provision.   See United States  v.
                                                    ___ _____________

            Freeman,  6 F.3d 586,  593 (9th Cir.  1993) (collecting cases
            _______

            where  nonelected,  nonappointed  government  employees  were

            convicted of  official right extortion under  the Hobbs Act),

            cert. denied, 62  U.S.L.W. 3722 (May 2, 1994)  (No. 93-8558).
            _____ ______

            Here,  however,  Casiano was  convicted  only  of aiding  and
                                                              ______  ___

            abetting  an  attempted  extortion  under color  of  official
            ________

            right.   In  order to  have been  so convicted,  the evidence

            merely  had to  support a  conclusion that  Casiano "aid[ed],

            abet[ted],    counsel[ed],    command[ed],   induce[d],    or

-9-
                                          9

procure[d]" an attempted  extortion under  color of  official

            right.   See 18 U.S.C.    2(a).  Certainly,  the evidence was
                     ___

            sufficient  for  the jury  to  have  found that  Casiano  and

            Sheehan aided each  other and that  they attempted to  extort

            money  from Arocho.  And, Casiano does not and cannot dispute

            that  Sheehan   acted  under  color  of   official  right  in

            wrongfully using his position with BISD in the course of this

            attempted  extortion.    See  Freeman,  6  F.3d at  593  ("We
                                     ___  _______

            conclude  that  the Hobbs  Act  reaches  anyone who  actually

            exercises official powers, regardless of whether those powers

            were  conferred  by  election,  appointment,  or  some  other

            method.").    Thus,  because Casiano's  conduct  clearly fell

            within the  relevant statutory language, his  conviction must

            stand.    See United  States v.  Culbert,  435 U.S.  371, 380
                      ___ ______________     _______

            (1978) ("[T]he statutory language and  legislative history of

            the  Hobbs  Act impels  us  to the  conclusion  that Congress

            intended to make criminal all conduct within the reach of the

            statutory language.");  see  also,  e.g.,  United  States  v.
                                    ___  ____   ____   ______________

            Spitler,  800  F.2d 1267,  1278  (4th  Cir. 1986)  (affirming
            _______

            conviction of  non-public official  who aided and  abetted an

            extortion under color of official right).

                      Accordingly, we reject Casiano's assertion that his

            conduct plainly was outside the reach of the Hobbs Act.

                                         III.
                                         III.
                                         ____

                                      CONCLUSION
                                      CONCLUSION
                                      __________

-10-
                                          10

Having rejected defendant's appellate arguments, we

            affirm his convictions.

                      Affirmed.
                      Affirmed.
                      ________

-11-
                                          11