June 24, 1994 [Not for Publication]
[Not for Publication]
United States Court of Appeals
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.
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.
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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
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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.
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
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
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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.
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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.
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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
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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.
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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
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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.
CONCLUSION
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Having rejected defendant's appellate arguments, we
affirm his convictions.
Affirmed.
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