U.S. v. Cassiliano, Docket No. 97-1215
| Decision Date | 05 March 1998 |
| Docket Number | Docket No. 97-1215 |
| Citation | 137 F.3d 742 |
| Parties | UNITED STATES of America, Appellee, v. Juliana M. CASSILIANO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Thomas Spina, Jr., Assistant United States Attorney, Albany, NY (Thomas J. Maroney, United States Attorney for the Northern District of New York, on the brief), for Appellee.
Elena C. Vaida, Albany, NY, for Defendant-Appellant.
Before: KEARSE and WALKER, Circuit Judges, and WEINSTEIN, District Judge. *
Defendant Juliana M. Cassiliano appeals from a judgment entered in the United States District Court for the Northern District of New York following her plea of guilty before Lawrence E. Kahn, Judge, convicting her of wire fraud, in violation of 18 U.S.C. § 1343 (1994), sentencing her principally to a prison term of 12 months and one day, to be followed by a three-year term of supervised release, and ordering her to pay $5,000 to the government as restitution. Pursuant to Sentencing Guidelines ("Guidelines") § 3C1.1, the sentence included an enhancement for obstruction of justice on the ground that, after agents of the Federal Bureau of Investigation ("FBI") confronted Cassiliano with evidence of her unlawful conduct and sought her cooperation in the investigation of others, Cassiliano proceeded to inform a target of the investigation, with whom she had collaborated, of the existence of the investigation. On appeal, Cassiliano challenges the enhancement, contending principally that her conduct was not, in fact, meant to be obstructive, and that alerting an individual that he is the target of an investigation is not, as a matter of law, an obstruction of justice within the meaning of § 3C1.1. Finding no basis for reversal, we affirm.
The material events are undisputed by the parties hereto. In 1992, Cassiliano, an attorney who had been counsel to various New York State ("State") agencies and legislative committees in the 1980s, participated in a scheme to extort $20,000 from Petron Oil Corporation ("Petron"). Petron's owner, Charles Hurchalla, had sought Cassiliano's assistance in expediting the payment of certain tax refunds to which Petron was entitled from the State. Cassiliano agreed to help, and it was eventually agreed that Petron would pay her one percent of any expedited refund. For several months, Cassiliano used her professional contacts within the State government, along with her prior romantic relationship with Keith Hercules ("Hercules"), who was then a deputy commissioner of the State's Office of General Services, to expedite Petron's refunds, and she was paid the one-percent compensation. In June 1992, however, Cassiliano telephoned Petron to advise that a legal question had arisen as to whether Petron was entitled to the refunds; at the urging of Hercules, she informed Petron that it would have to pay $10,000 in order to bribe State officials to release the refunds.
Unbeknownst to Cassiliano, Hurchalla had been acting as an informant for the government in an unrelated investigation, and he informed the FBI of Cassiliano's demand. In September 1992, Hurchalla sent Cassiliano $5,000, which had been provided by the government as part of its investigation of Hurchalla's allegations, and FBI agents observed Cassiliano and Hercules retrieving the money together. On the following day, Cassiliano telephoned Hurchalla to say that she would need $20,000, rather than $10,000, to secure the refunds. Thereafter, Hurchalla gave Cassiliano an additional $5,000.
On December 1, 1992, FBI agents approached Cassiliano, confronted her with evidence they had collected against her, and offered her the opportunity to cooperate in their investigation of a fuel tax evasion scheme. She agreed to cooperate, and she promptly delivered to the government the second $5,000 payment she had received from Hurchalla. Her cooperation was also to include pleading guilty to wire fraud, assisting the government in gathering additional evidence, and testifying for the government at future proceedings.
One of the principal targets of the government's investigations was Hercules. Shortly after agreeing to cooperate, Cassiliano made numerous attempts to--and ultimately did--contact Hercules to alert him to the investigation. Disappointed by his cool response, however, she contacted the FBI on December 9 and volunteered a description of her attempts and eventual conversation. According to the FBI report of that interview, Cassiliano began continual attempts to call Hercules directly on December 3, without success. She then tried to contact a former associate who knew Hercules; after receiving no response to numerous messages left on the associate's answering machine, Cassiliano left a message on that machine on December 4, saying that she wanted the associate to get in touch with Hercules and to tell him that Cassiliano was in trouble and that Hercules too was in trouble. Cassiliano also made a series of calls to track down Hercules's brother Cedric ("Cedric"). On December 5, she reached Cedric and told him that she had gotten Hercules into serious work-related trouble; she wanted and expected Cedric to relay that message to Hercules. Later that day, Cassiliano finally managed to speak to Hercules directly, and she informed him of the FBI's investigation.
Cassiliano told the agents in the December 9 interview that although she felt that she had been asked not to contact Hercules, she had called him for the purpose of letting him "know about the problem" and of "find[ing] out from [him] what she was supposed to do; whether or not she was suppose[d] to lie to the FBI." She revealed to the agents that she had lied to other agents the previous week, concealing the fact that Hercules received $3,500 of the first $5,000 she had obtained from Hurchalla. She contacted Hercules both to alert him to the FBI investigation and "to confirm whether or not she should keep lying to the FBI," or whether he himself was going to disclose the truth. Cassiliano told the agents that Hercules was entirely unresponsive to her statements, and that she concluded that her relationship with him had ended. She thus decided to tell the FBI of her efforts to reach him.
In October 1996, Cassiliano pleaded guilty to one count of wire fraud, in violation of 18 U.S.C. § 1343. In an interview with the probation officer responsible for preparing her presentence report ("PSR"), she explained that when she made her numerous attempts to reach Hercules,
[o]bstruction of justice never even crossed my mind because I don't think I would have thought of it in those terms.
When I think of obstruction of justice I think of hiding evidence, or helping someone to escape. Doing something that would change criminal conduct. But in this case, whatever was done was already done....
....
.... All I did was let Keith know that the FBI had contacted me. I didn't say, "lets [sic ] go over everything and make sure we say the same thing," or anything like that .... I still don't think I obstructed justice, the[ FBI agents] just didn't get the more that they wanted.
(PSR p 18.) The PSR recommended enhancing Cassiliano's offense level by two steps for obstruction of justice. Cassiliano opposed the enhancement. She did not deny any of the statements attributed to her in the FBI report; rather, she argued that her conduct was consistent with her being obsessed with Hercules and wanting to speak to him for purely personal reasons, and that her conduct "simply d[id] not rise to the level of obstruction." (Letter from Cassiliano's counsel to the district judge dated March 24, 1997, at 1-2.)
What she really wanted to know was whether Keith Hercules was going to be there for her; whether he was going to tell the truth about what happened; whether he expected her to lie and take the fall for this offense alone. She was not trying to stymie or hinder the government's investigation, rather, she was engaging in further self-destructive and impulsive behavior in order to test Keith Hercules' feelings or lack thereof for her. There was simply no intent to obstruct the government's investigation.
(Id. at 2.)
The district court rejected Cassiliano's view and adopted the PSR's recommendation. The court found that Cassiliano had
willfully obstructed justice when she notified her unindicted conspirator of the pendency of the FBI investigation in the instant offense. As defendant's own statements acknowledge, she was unhappy with the nature of the FBI's p[ro]spective investigation of her friend, ... she was fully cognizant of the fact that by tipping him off she would prevent the collection of any further evidence, but she still embarked on that course.
(Sentencing Transcript dated March 27, 1997 ("Tr."), at 16-17.) Cassiliano was sentenced as indicated above, and this appeal, permitted by the plea agreement, followed.
Under the Guidelines, a defendant is to have her offense level increased by two steps if she "willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense." Guidelines § 3C1.1. Cassiliano contends principally (a) that the district court erred as a matter of law in concluding that alerting Hercules to the FBI investigation constituted an obstruction of justice at all, or that it constituted an obstruction with respect to the "instant offense" within the meaning of § 3C1.1, and (b) that the court erred in finding that her conduct constituted an obstruction that was in fact willful.
An enhancement for obstruction of justice is subject to a mixed standard of review. The sentencing court's findings as to what acts were performed, what was said, what the speaker meant by her words, and how a listener would reasonably interpret those words will be upheld unless they are...
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