U.S. v. Casciano

• Decision Date: 18 August 1997
• Docket Number: No. 1677,D,1677
• Citation: 124 F.3d 106
• Parties: UNITED STATES of America, Appellee, v. Michael A. CASCIANO, Defendant-Appellant. ocket 96-1695
• Court: U.S. Court of Appeals — Second Circuit

Page 106

124 F.3d 106

UNITED STATES of America, Appellee, v. Michael A. CASCIANO, Defendant-Appellant.

No. 1677, Docket 96-1695.

United States Court of Appeals, Second Circuit

Argued May 5, 1997.

Last supplemental brief filed

July 31, 1997.

Decided Aug. 18, 1997.

Ronald J. Pelligra, Syracuse, NY, for Defendant-Appellant.

John G. Duncan, Assistant United States Attorney for the Northern District of New York (Thomas J. Maroney, United States Attorney for the Northern District of New York, Diane Rosenfeld, Washington, DC, Senior Counsel, Violence Against Women Office, Department of Justice, of Counsel, for Appellee).

Julie Goldscheid, New York City, Staff Attorney, National Organization of Women, Legal Defense & Education Fund, for Appellee, as Amicus Curiae.

Before: FEINBERG, OAKES and LEVAL, Circuit Judges.

FEINBERG, Circuit Judge:

This appeal is apparently the first to reach us involving 18 U.S.C. § 2262(a)(1), part of the recently enacted Violence Against Women Act. Defendant Michael Casciano appeals from a judgment of conviction, after a jury trial in the United States District Court for the Northern District of New York, Howard G. Munson, J., for traveling across a state line and violating a protection order. The judge sentenced Casciano to a term of imprisonment of 37 months, to be followed by three years of supervised release. Casciano claims that he was denied due process, that the judge erred in charging the jury and that the guidelines were applied improperly to determine his sentence. For reasons set forth below, we affirm.

I. Background

Viewing the evidence in the light most favorable to the government, the jury could have found the following. In early March 1995, Casciano met a woman named Susan Keezer in a popular downtown nightclub area in Boston, Massachusetts. At the time, Casciano was on probation, having recently been released from prison where he had served 18 months for violating the terms of another protection order obtained by an unrelated victim. Keezer and Casciano apparently dated for approximately two and a half weeks before Keezer sought to break off the relationship because Casciano had, in her view, become very jealous and possessive. Casciano attempted without success to persuade her to continue the relationship. He then began to engage in a pattern of intrusive, harassing and threatening behavior. On the night Keezer informed Casciano that she was no longer interested in continuing their relationship, Keezer returned to her Lowell, Massachusetts home, only to find Casciano waiting in her car. Early the next morning, Casciano rang the doorbell of the house, where Keezer lived with her mother. Keezer told him to go away. Casciano asked if he could just use the telephone and toilet. When Keezer let him in, Casciano refused to leave for about an hour before Keezer's mother told him to go. Keezer reported the incident to the local police.

In April 1995, Casciano frequently waited by Keezer's car when she left work, despite Keezer's telling him repeatedly that she wanted to be left alone. When she notified security at her place of work to watch for him, Casciano escalated his harassing behavior. On one occasion, he barged into her office at work, using abusive language, and physically restrained her from either leaving or using the phone. Casciano was eventually escorted from the building by two of Keezer's co-workers.

Keezer notified the Cambridge, Massachusetts police of the workplace incident. On April 25, 1995, pursuant to chapter 209A of the General Laws of the Commonwealth of Massachusetts, Keezer obtained an abuse prevention order (usually referred to hereafter as a protection order) from the Lowell District Court. The order was issued without advance notice to Casciano based on the court's determination that there was a "substantial likelihood of immediate danger of abuse." The substantive provisions of the order prohibited Casciano from, among other things, harming or attempting to harm Keezer physically; placing her in fear of imminent serious physical harm; contacting Keezer in person, by telephone, in writing or otherwise, either directly or through someone else; coming within 100 yards of her; and visiting Keezer's residence or workplace. The order provided, in the largest printed letters on the page, that "VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE punishable by imprisonment or fine or both." The order also fixed a hearing date of May 10, 1995. Casciano was notified of the protection order, its contents and the date and location of his court appearance by his probation officer for his earlier offense. He was personally served with the order on April 27, 1995. That order expired on May 10, 1995.

In late April 1995, Keezer travelled to Syracuse, New York to interview for admission to the doctoral program at the SUNY Health Science Center. Although Keezer did not tell Casciano about the trip or where she would be staying, he was waiting for her at the motel when she arrived. Casciano told her that the Massachusetts restraining order was no good in New York, so she shouldn't bother calling the police. Casciano then admitted to Keezer that he was on parole, and that he would probably be sent back to jail as a result of the protection order. He threatened to kill himself if that happened. Keezer allowed Casciano to sleep in her car that night, and gave him a lift when she drove back to Boston the next day.

Keezer and Casciano spoke many times over the next month. Keezer explained that she thought that keeping in contact with Casciano might enable her "to end this in a peaceful way." By the end of May, however, Keezer again attempted to break off contact with Casciano. He tried to dissuade Keezer, even forcibly restraining her from leaving his apartment. When that proved unsuccessful, Casciano resumed his harassing behavior.

On June 9, 1995, Keezer obtained a second ex parte abuse prevention order, identical in its substantive provisions to the first, this time from the Cambridge District Court. The order set a hearing date for June 23, 1995. Boston police attempted to serve the order upon Casciano several times at his apartment, apparently without success. Keezer's testimony at trial, however, indicated that Casciano knew of the order and the hearing date. Keezer testified that Casciano called her on June 9 at her workplace. She told him that he was not supposed to call her. Keezer stated that Casciano responded, "I can't believe you got another 209A ¹ against me." Keezer then testified, "I told him that, yes, I did, and he said he was going to see me anyway, and I said that, 'You can see me at the Cambridge Court on June 23rd.' " According to Keezer, Casciano responded that he would never be with Keezer in court and that the order was no good if not served on him.

Casciano failed to appear at the June 23 hearing. At that time, the protection order was continued to July 7, 1995, and another hearing was set for that date. Further service was attempted between June 23 and July 7, but Casciano was not home on any of these occasions. Boston Police Lieutenant John Kervin testified at trial, and the Boston Police Abuse Prevention Order Log Book shows, that the order was served by being placed under the door of Casciano's apartment on June 26, and that numerous unsuccessful attempts at personal service were made subsequently. Casciano contends that he had by this time abandoned the apartment, and thus did not receive notice of the July 7 hearing. One of Casciano's sisters testified, however, that when she went to clear out his belongings from the apartment on June 28, the notice was not there on the floor. Lieutenant Kervin did not testify whether the notice was also mailed.

Casciano failed to appear at the July 7 hearing, and the order was extended to June 10, 1996. There is no evidence that Casciano was ever personally served with a copy of the extended order. Meanwhile, Casciano continued to harass Keezer. Keezer testified that he threatened to kill any male she was with, and threatened to kill Keezer's brother when he answered the phone at her house. Keezer also testified that Casciano made an average of about 100 phone calls to her a week at work, with a record of approximately 200 calls in a single day. Keezer and her co-workers kept logs of the calls. On at least two occasions during this period, Casciano was reminded that he was not supposed to call Keezer and that in doing so he was in violation of the protection order. Casciano responded that he had violated it hundreds of times before and nothing had happened to him and that he wasn't too worried about it.

In August 1995, Keezer moved to Syracuse to begin her doctoral program. In early September, Casciano appeared in Syracuse, where he continued to engage in harassing behavior in violation of the Cambridge protection order. He discovered Keezer's unlisted telephone number and initiated dozens of calls, including three rambling, expletive-filled messages recorded on Keezer's answering machine. He sent electronic mail messages to Keezer's account. He approached Keezer in the library at the Health Science Center and tried to kiss her. He appeared in a lecture hall where Keezer was attending class, and then chased her after she fled, abandoning her only after she sought refuge in a professor's office and campus security was called.

Casciano was finally arrested by Syracuse police in September 1995. Even while he was in custody, Casciano managed to make dozens of collect phone calls to Keezer until a magistrate suspended his phone privileges.

In September 1995, Casciano was charged with Interstate Violation of an Order of Protection, 18 U.S.C. § 2262, and in April 1996 was tried before a jury in Syracuse. At trial, Judge Munson left it to the jury to determine whether Casciano had received reasonable notice of the Cambridge protection order and hearing under Massachusetts law. The jury found Casciano...