
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        June 24, 1994           [Not for Publication]                                [Not for Publication]                            United States Court of Appeals                            United States Court of Appeals                                For the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
