U.S. v. Castillo

• Citation: 965 F.2d 238
• Decision Date: 29 May 1992
• Docket Number: No. 91-1288,91-1288
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Serafin CASTILLO, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 238

965 F.2d 238

UNITED STATES of America, Plaintiff-Appellee, v. Serafin CASTILLO, Defendant-Appellant.

No. 91-1288.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 8, 1992.

Decided May 29, 1992.

Brian P. Netols (argued), Crim. Div., Barry R. Elden, Asst. U.S. Atty., Criminal Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Frederick F. Cohn, Chicago, Ill. (argued), for defendant-appellant.

Before CUMMINGS, POSNER, and RIPPLE, Circuit Judges.

POSNER, Circuit Judge.

Serafin Castillo was convicted by a jury of conspiracy to commit extortion, in violation of 18 U.S.C. § 1951, and sentenced to four months in prison. Three months after being convicted, but before being sentenced, Castillo through a newly retained lawyer moved for a new trial, contending that his trial lawyer had failed to represent him effectively. The judge denied the motion as untimely. Castillo appeals both from the judgment of conviction, on the ground of ineffective assistance of counsel, and from the denial of the motion for a new trial, on the ground that such a motion even when untimely may be granted if the basis for the motion is ineffective assistance.

Castillo was punished for his participation in a case of journalistic blackmail. Gilberto Lopez Grenados, who was tried together with Castillo and convicted but who fled before being sentenced and remains a fugitive, published a Spanish-language newspaper in Chicago called Tribuna de America. One of his competitors was Socorro Grajeda, the publisher of El Pueblo (for which Grenados had once worked). Grajeda also was president of MEDA (Mexicanos de Afuera--expatriate Mexicans), a service organization of the Mexican-American community of Chicago. Grenados published a series of articles in Tribuna that were (to say the least) highly critical of Grajeda. They charged that MEDA was defrauding the community, that the food it distributed to the poor was "waste from warehouses," and that Grajeda had low morals and by participating in MEDA was "behaving like a vulgar market woman." Disturbed and embarrassed, Grajeda would whenever she encountered Grenados plead with him to stop publishing the articles. He said he wouldn't stop until he had destroyed both her and MEDA.

After this had gone on for some time Grenados telephoned Grajeda and told her that if she paid him, he would stop publishing the articles critical of her. She said that she couldn't afford to pay him. Enter Castillo, an acquaintance of both Grenados and Grajeda, who owned a grocery store in the same neighborhood where Tribuna and El Pueblo were published. Shortly after the telephone conversation, Castillo began visiting and phoning Grajeda. Though always polite and cordial, he kept asking her where the money was that Grenados wanted and he told her, though Grenados had never named a sum to her, that Grenados wanted $26,000. He warned her that if she didn't pay, Grenados wouldn't stop the stream of articles criticizing her; at the same time he reassured her that if she did pay, Grenados would stop--indeed, he, Castillo, would see that he stopped.

Grajeda confided in a business associate, who called the FBI, who recorded the next phone call by Castillo to Grajeda. In it he told her that Grenados wanted to meet her the next day to arrange about the payment of the $26,000. She asked him to put Grenados on the phone. Castillo demurred, but shortly afterward showed up in person at Grajeda's office and told her that Grenados would talk to her but that she would have to call him from a pay phone because Grenados feared she might be planning to record the call. Accompanied by Castillo and by an undercover FBI agent who was posing as a friend of hers, Grajeda crossed the street to a pay phone. Castillo dialed a number and handed the phone to Grajeda. Grenados was on the other end. Grajeda told him that she would pay, but she wanted a written promise that if she paid the articles would stop. Grenados replied that she would have to arrange it with Castillo. Afterwards Grajeda asked Castillo why he had gotten involved in the matter and he said that he wanted to see the articles stopped and that he might be compensated by Grenados if things worked out; Grenados owed him $5,000. Castillo then invited her to a meeting the next day with Grenados at the grocery store that Castillo owned.

The meeting came off as scheduled. Grajeda in the presence of the two men handed Grenados a bag of (marked) money. At first he wouldn't take it and told her to hand it to Castillo, but she urged him to take it and eventually he did. Grenados refused to furnish a written promise to stop publishing the articles but he did give her a receipt for the money. The two men were then arrested.

Grenados and Castillo had the same lawyer at trial, and this is the basis of Castillo's first ground of appeal. Before trial the prosecutor asked the judge to conduct, pursuant to Fed.R.Crim.P. 44(c), an inquiry to determine whether joint representation might create a conflict of interest. In response, the lawyer for the two defendants submitted a statement, signed by both, saying that they wanted to be represented by this lawyer and that he had discussed with them in detail the potential conflict of interest posed by the arrangement. The district judge held a brief inquest at which the prosecutor moved to disqualify the lawyer from representing more than one of the defendants and the defendants' lawyer repeated that he had discussed the potential conflict of interest with his clients and had concluded that there was none. There was none because the defense that they had decided to present was that the negotiations culminating in the cash payment constituted a legitimate rather than an extortionate business transaction: the $26,000 was to buy Grenados's newspaper, Grajeda having decided that that was the only way she could stop the flow of defamatory articles about her.

After receiving some further submissions from the prosecutor and the defense lawyer and engaging in some give and take with them, the judge turned to the defendants and asked them seven questions. The first was, "Did you hear what Mr. Aronson [the defense lawyer] just said?" The last was, "You both want Mr. Aronson to represent you?" The defendants answered "Yes" to all the questions, without elaboration, whereupon the judge denied the prosecutor's motion to disqualify Aronson from representing both.

No issue was raised at that time concerning the defendants' competence in the English language, but it was raised later and the judge decided to assign an interpreter to Castillo for the trial. At the trial, the government presented the evidence that we summarized above. The defense put on only a single witness--a character witness.

If the best defense had indeed been to depict the negotiations as a legitimate business transaction, then joint representation would have been a defensible tactical choice, as otherwise each defendant might be placed in the position of arguing both that the transaction was legitimate and that it was the other defendant who was to blame--a form of alternative pleading that might not impress a jury. If on the other hand mutual finger-pointing was the best defense--Grenados arguing that it was not he but Castillo who had handled the negotiations and Castillo arguing that he was just an errand boy for Grenados and didn't know the transaction was not on the up and up--then separate representation was indicated.

As the evidence unfolded at trial, it became clear that the first line of defense was hopeless. The "transaction" was not the sale of a business. It was blackmail, a standard form of extortion. United States v. Nardello, 393 U.S. 286, 89 S.Ct. 534, 21 L.Ed.2d 487 (1969). Grenados told Grajeda that for a price he would stop publishing discreditable things about her. He thus was selling silence. Whether the discreditable things were true or false is irrelevant. Granted, blackmail with false information is less likely to succeed than if the information were true, because the victim has a potential remedy by way of defamation (as he would not, of course, if the information were true), and is therefore less likely to pay. He may also fear that by paying he will be making the false information more credible and thus harder to disprove later--or even be inviting the blackmailer to return with a new demand, since the more credible the dirt the higher the price for burying it. Still, there are occasional cases of blackmail with false dirt--enough of them that we know that this form of blackmail is just as criminal as the more common kind. United States v. Schwartz, 398 F.2d 464, 466 (7th Cir.1968); People v. Camodeca, 52 Cal.2d 142, 338 P.2d 903 (1959); State v. McNellis, 25 Conn.Supp. 5, 195 A.2d 572 (Super.Ct.1963) (per curiam); Roberts v. United States, 248 Fed. 873, 877 (9th Cir.1918). Had Grajeda taken the initiative in seeking to exchange money for forbearance to publish, this would not be a blackmail case. It is a grave violation of journalistic ethics, but it is not blackmail (or extortion), passively to accept an offer of payment in exchange for silence. United States v. Holzer, 816 F.2d 304, 310-11 (7th Cir.), remanded for reconsideration on other grounds, 484 U.S. 807, 108 S.Ct. 53, 98 L.Ed.2d 18 (1987), on remand, 840 F.2d 1343, 1351 (7th Cir.1988); James Lindgren, "Blackmail: On Waste, Morals, and Ronald Coase," 36 UCLA L.Rev. 597, 606 and n. 34 (1989). But it was Grenados who took the initiative.

We have undertaken this little excursus into the law of blackmail to make clear that the line of defense which the defendants' trial counsel proposed was indeed a nonstarter. Maybe it seemed to have some potential before the government's witnesses testified, though that seems unlikely; in any event it was a flop at trial. With the benefit of hindsight, therefore, we can see that the defendants had nothing to gain from joint representation...