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[Not for Publication]

[Not for Publication]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, w
_______________________
whom Donald K. Stern, United States Attorney, was on brief
_________________
appellee.
____________________
____________________

____________________
*Of the Western District of Washington, sitting by designation.
**Chief Judge Stephen Breyer heard oral argument in this matter
did not participate in the drafting or the issuance of the pane
opinion. The remaining two panelists therefore issue this opin
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.
under

371,
color of

(hereinafter

aiding

and abetting

official
"the

right, 18

Hobbs

Act

U.S.C.

1503.

extortion

U.S.C.

and

violation"),

statements to a grand jury, 18 U.S.C.

of justice, 18

an attempted

making

1951
false

1623, and obstruction

After carefully

Casiano's appellate arguments, we affirm.

I.

considering

I.
__
BACKGROUND
BACKGROUND
__________
The
detail.

facts of this case need not be stated in great

Casiano

Dorchester,

used

Massachusetts.

Sheehan, was an
Services

was a

who lived

Casiano's codefendant,

("BISD"),

as

which

a member

relating to

in

Daniel

of Boston Inspectional
is

responsible

and building occupancy permits.

particular expertise
issues licenses

salesman

employee of the City

Department

issuing towing

car

of the

for

Sheehan had

"auto team"

towing businesses and

that

used car

sales in the City of Boston.

The evidence
over

a number

seeking

of

assistance

adduced

at trial

years, Casiano
with the

brought

City's

established
people who

permitting

that,
were

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.

-22

Although the prosecution's case encompassed several

incidents

in which

assistance, it

Casiano

brought people

centered on Casiano's

to Sheehan

and Sheehan's

with regard to one Jose Arocho in 1991 and 1992.

for

actions

Throughout

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

license
in

from BISD for his business at 25 West Cottage Street

Dorchester.

During

this

same

time

repeatedly approached Arocho and informed

friend

period,

Casiano

him that he had

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

At first, Casiano indicated that the

for $5,000.

Later, the price

problem could be solved

was set at $10,000.

Arocho,

however, refused to make any illegal payments.

Finally, on September 5,
badgering by
about his

Casiano), Arocho

continuing problems.

surreptitiously taped

met with Casiano

Fearing

the meeting.

and Casiano explicitly stated that

help
Arocho

Arocho, but

that

did not

agree to

additional meetings.

1991 (and after months of

At

a shakedown, Arocho
the meeting, Sheehan

Sheehan might be able

Sheehan's help
pay, but

and Sheehan

would cost

kept the

door

to

$15,000.
open for

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

-33

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

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
contends

that

he was

assistance of counsel.
for violating
not

acting or

right."

See
___

denied

his

two arguments.
right

to the

First, he
effective

Second, he argues that his conviction

the Hobbs Act must be set aside because he was

purporting to
18 U.S.C.

argument in turn.

act "under
1951(b)(2).

color of

official

We discuss

each

A. Right to Effective Counsel

A. Right to Effective Counsel
______________________________
Casiano's right to
argument

arises out

place in the course

of

effective assistance of counsel

an unfortunate

episode which

of the government's cross-examination of

Sheehan, who had taken

the stand in his own

halfway

through

cross-examination,

counsel

objected to a question posed by the prosecutor.

trial court
effect,

took

this

overruled the objection,

defense.

About

Casiano's

trial

informing counsel,

The
in

that he could not object because the witness was not

-44

his client.
Casiano's
told

sit down

objected.

and dismissed

not object

the next

several

several

more

the court

the jury

from the

again informed counsel

because the

The jury returned and

interposed

In response,

At this point, the court

he could

client.
During

counsel again

counsel to

courtroom.
that

The prosecutor then posed the same question, and

witness was

not his

cross-examination continued.

minutes,

Casiano's trial

objections,

each

of

counsel

which

was

summarily overruled.
Eventually, the
again

court ordered a

dismissed the jury from the courtroom.

the court

informed Casiano's

contempt of

trial counsel

jury

returned, Casiano's

that he

the rest

of the

After the

remained largely

cross-examination.

was in

order not to

cross-examination.

counsel

and

At this point,

court for disregarding the court's

object during the government's

for

short recess

silent1

Subsequently, the

court sanctioned him.

As an
not reflect
to object
interposed
delay.

initial matter, we note that the record does

that the trial court

out

of concern

for an

that

improper

Instead, it

restricted Casiano's right

the objections

purpose such

appears

that the

were

being

as harassment
court

or

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.
-55

restriction
object

upon a view that

counsel had no

because the witness was

however,

locate any

Moreover,

we

Sheehan's

authority

see no

relationship
interests.

with

not his client.

which supports

purpose for

testimony,

which

Casiano,

legal right to

such

We cannot,
this ruling.

a rule;

covered

after all,

aspects

of

certainly implicated

his

Casiano's

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.

trial

court's actions rendered

"ineffective"
conclusion
In the

from

the

First, Casiano claims that the

time

his counsel constitutionally

he

was

sanctioned

to

the

of the government's cross-examination of Sheehan.

alternative, Casiano argues that

completely

deprived him of the right

the court's actions

to counsel during this

same period.
Ordinarily,
assistance
appeal.

claims

we

do

raised

for

not

address

the first

time2

ineffective
on

direct

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
reach the

merits

of a

may exercise

our discretion

newly-raised ineffective

and

assistance

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

-66

argument.

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

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

To

demonstrate

assistance of
counsel's

conduct

performance,
at
that

counsel, a
fell

constitutionally

ineffective

defendant must establish

below the

applicable

defined by what s/he knew

that (1)

standard for

or should have known

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

`prejudice'

resulted.

means

error, there is a
the proceedings

that,

Id. at
___

12.

but for

"In

counsel's

this context,
unprofessional

reasonable probability that the

would have

the standard set forth in

been different."

result of

Id. (applying
___

Strickland v. Washington, 466 U.S.

__________
__________

668, 687 (1984)).

Leaving aside the obvious difficulties
the

Strickland
__________

complained-of

standard

in

context

tactical choices were

where

in applying
counsel's

imposed by court order,

we conclude that Casiano's ineffective assistance claim

fail for a

lack of prejudice.

there is a reasonable
have turned out
to

does not explain how

probability that the proceedings would

differently if his counsel had

object during

examination in

Casiano

must

that

portion of

which he

been allowed

the government's

was effectively silenced.

crossIndeed,

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

-77

improper question was

posed during this

period, it did

not

alter the outcome of the trial.

Casiano's
argument

differs

because, "when

deprivation
from his

of

the

ineffective

a defendant is

right

to

counsel

assistance argument

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,

clear, however,
is

489 (1978).

that application of

The Court

has been

the harmless-error rule

appropriate where the deprivation of the right to counsel

is limited and does not infect an entire, noncapital criminal

proceeding such as this
U.S.

249, 257-58

one.

(1988).

See Satterwhite v.
___ ___________
We

think

that the

Texas, 486
_____
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

appropriate.

See
___

application of harmless-error analysis is

id.
___

And, as we

it beyond any reasonable

not contribute

to

indicated above, we think

doubt that the error

the verdict

obtained.

See
___

committed did
Chapman
_______

v.

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

__________
Accordingly,
restriction
government's

imposed

we reject Casiano's argument that the

upon

his

cross-examination

convictions.

-88

trial

counsel

requires

during

reversal

of

the
his

B. Hobbs Act Violation

B. Hobbs Act Violation
_______________________
Casiano's
under

the Hobbs

extortion was
and

second argument

Act for

"extortion" as,
with

18

our

of

(defining

of property from

. under

color of

Because Casiano did not make this argument

review

conviction was

"under color

1951(b)(2)

induced .

attempted

a public official

been acting

U.S.C.

his consent,

his conviction

abetting an

inter alia, "the obtaining

_____ ____

official right").
below,

not have

right."

another,

aiding and

improper because he was not

therefore could

official

is that

is

limited

plainly

to whether

erroneous.

See
___

his

Fed. R.

Hobbs

Act

Crim.

P.

52(b).
We discern
all,

convicted as
__

"color of official
Freeman,
_______

nonelected,

a principal under
_ _________

right" provision.

6 F.3d 586,

convicted of

593 (9th Cir.

nonappointed

however,

Act's
v.

1993) (collecting cases

government

U.S.L.W. 3722 (May 2, 1994)

Casiano was

the Hobbs

See United States

___ _____________

official right extortion under

cert. denied, 62
_____ ______
Here,

First of

one need not be an elected or appointed public official

even to be

where

no error at all in this case.

convicted

only

employees

were

the Hobbs Act),

(No. 93-8558).
of aiding

and

______
abetting
________

an

right.

attempted

In

merely

order to

had to

abet[ted],

extortion
have been

support a

under color
so convicted,

conclusion that

counsel[ed],

of

___

official

the evidence

Casiano "aid[ed],

command[ed],

induce[d],

or

-99

procure[d]" an attempted

extortion under

right.

2(a).

See 18 U.S.C.
___

sufficient

for

the jury

Sheehan aided each

money
that

Certainly,
have

other and that

from Arocho.
Sheehan

to

acted

color of

official

the evidence was

found that

Casiano

they attempted to

and

extort

And, Casiano does not and cannot dispute

under

color

of

official

right

in

wrongfully using his position with BISD in the course of this

attempted
conclude

extortion.
that

See
___

the Hobbs

Act

Freeman,
_______
reaches

F.3d at

593

anyone who

("We

actually

exercises official powers, regardless of whether those powers

were

conferred

by

election,

appointment,

or

some

other

method.").
within the
stand.

Thus,

because Casiano's

relevant statutory language, his

See United States v.
___ ______________

Culbert,
_______

(1978) ("[T]he statutory language and

the

Hobbs

conduct

Act impels

us

to the

clearly fell

conviction must

435 U.S.

371, 380

legislative history of

conclusion

that Congress

intended to make criminal all conduct within the reach of the

statutory language.");
Spitler,
_______

800

conviction of

see
___

F.2d 1267,

also,
____
1278

e.g.,
____

(4th

non-public official

United States
______________

v.

Cir. 1986)

(affirming

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
__________

-1010

Having rejected defendant's appellate arguments, we

affirm his convictions.
Affirmed.
Affirmed.
________

-1111