US v. Casciano

• Citation: 927 F. Supp. 54
• Decision Date: 20 May 1996
• Docket Number: No. 95-CR-400.,95-CR-400.
• Parties: UNITED STATES of America v. Michael A. CASCIANO, Defendant.
• Court: United States District Courts. 2nd Circuit. United States District Court of Northern District of New York

927 F. Supp. 54

UNITED STATES of America v. Michael A. CASCIANO, Defendant.

No. 95-CR-400.

United States District Court, N.D. New York.

May 20, 1996.

Thomas J. Maroney, United States Attorney, Northern District of New York, Syracuse, New York, for the U.S. (John Duncan, Assistant U.S. Attorney, of counsel).

Ronald J. Pelligra, Syracuse, New York, for Defendant.

MEMORANDUM-DECISION AND ORDER

MUNSON, Senior District Judge.

The court now considers the post-trial motions of Michael A. Casciano. After a jury trial in April of 1996 in Syracuse, New York, defendant was convicted of one count of crossing a state line with the intent to engage in conduct in violation of a protection order, as prohibited by 18 U.S.C. § 2262(a)(1). Defendant opted not to present written post-trial papers, but instead to rely on his oral motions made during trial and after the judgment. Letter from Ronald J. Pelligra, Esq., Apr. 19, 1996, Doc. 43. The following constitutes the court's Memorandum-Decision and Order.

I. BACKGROUND

Viewing the evidence in the light most favorable to the government, United States v. Cunningham, 723 F.2d 217, 230 (2d Cir. 1983), cert. denied, 466 U.S. 951, 104 S.Ct. 2154, 80 L.Ed.2d 540 (1984), the rational trier of fact could have decided the prosecution proved the following facts beyond a reasonable doubt. Defendant dated the victim, Susan Keezer, for approximately two and one-half weeks in the spring of 1995. Both resided in the Boston area at the time. After the victim attempted to break off the relationship, defendant engaged in a pattern of harassing behavior, viz., appearing uninvited at the victim's workplace and residence, making repeated threatening phone calls, and rifling through the victim's mail and personal belongings.

Pursuant to chapter 209A of the General Laws of the Commonwealth of Massachusetts, the victim obtained an abuse prevention order, also referred to as a protection order, from the District Court for Lowell, Massachusetts on April 25, 1995. April Order, Gov.Ex. 9. The protection order, and subsequent orders obtained by the victim against defendant, contains inter alia the following substantive provisions:

1. YOU ARE ORDERED NOT TO ABUSE THE PLAINTIFF by harming or attempting to harm the plaintiff physically, or by placing the plaintiff in fear of imminent serious physical harm, or by using force, threat or duress to make the plaintiff engage in sexual relations unwillingly.

2. YOU ARE ORDERED NOT TO CONTACT THE PLAINTIFF ... either in person, by telephone, in writing, or otherwise, either directly or through someone else, and to stay at least 100 yards away from her unless your receive written permission from the Court to do otherwise.

3. YOU ARE ORDERED IMMEDIATELY TO LEAVE AND STAY AWAY FROM THE PLAINTIFF'S RESIDENCE....

....

5. YOU ARE ORDERED TO STAY AWAY FROM THE PLAINTIFF'S WORKPLACE....

....

9. YOU ARE ALSO ORDERED immediately to surrender to the Boston Police Department all guns, ammunition, gun licenses, and FID cards....

Abuse Prevention Orders, Gov.Ex. 1.

The order also requires defendant to turn over any keys belonging to the victim, and not to damage any of the victim's belongings. Defendant was personally served with this protection order on April 27, 1995. See Boston Police Abuse Prevention Order Log Book Entries, Gov.Ex. 11, at 4. The April order expired on May 10, 1995.

Defendant's harassing behavior continued, and on June 9, 1995, the victim obtained a second protection order, identical in its substantive provisions to the first, from the District Court for Cambridge, Massachusetts. June Order, Gov.Ex. 1. Boston Police attempted to serve the order upon defendant several times at his apartment. See Log Book Entries, Gov.Ex. 11, at 5-6. The June order having been issued ex parte, a hearing was set for June 23, 1995 in the Cambridge District Court. Defendant failed to appear, the order was continued to July 7, 1995, and another hearing was set for that date. Abuse Prevention Orders, Gov.Ex. 1, at 2. Further service was attempted between June 23 and July 7, but defendant was not home. Log Book Entries, Gov.Ex. 11, at 7. Boston Police Lt. James Kirvin testified that after three or more failed attempts at personal service officers left a copy of the order under the door of defendant's apartment, on June 26, 1995. See Abuse Prevention Orders, Gov. Ex. 1, at 4; Log Book Entries, Gov.Ex. 11, at 7. Lt. Kirvin did not testify as to whether or not a copy was also mailed to that address.

Defendant failed to appear on the second hearing date, and the order was extended to June 10, 1996. Abuse Prevention Orders, Gov.Ex. 1, at 3 (same order in evidence as Gov.Ex. 13). It appears that service of this order was also attempted. Log Book Entries, Gov.Ex. 22. The jury had before it testimony from which it could readily conclude that defendant had actual notice of the protection orders. Moreover, the facts supported the conclusion that defendant did not misunderstand the import of the protection order, as he had previous experience with such orders and had in fact been imprisoned in Massachusetts for the violation of an order protecting another woman before these incidents occurred. See Abuse Prevention Orders, Gov.Ex. 10.

Defendant continued to harass the victim. It came to pass that the victim moved to Syracuse, New York in the fall of 1995 to enroll in a doctoral program at the State University of New York Health Science Center. In early September, defendant appeared in Syracuse and engaged in harassing behavior of a quality escalated from his prior conduct. He discovered the victim's unlisted telephone number and initiated dozens of calls, three of which were recorded on the victim's answering machine and were played for the jury. See Transcript of Telephone Messages, Gov.Ex. 3. He sent electronic mail messages to the victim's account. Gov. Exs. 7 & 8. Defendant approached the victim in the library at the Health Science Center, prompting a friend of the victim to run for help. Defendant appeared in a lecture hall where the victim was attending class, and then chased the victim after she fled, abandoning her only after she sought refuge in a professor's office and campus security was called. Defendant was finally apprehended — but even in custody he managed to make phone calls to the victim, until Magistrate Judge DiBianco suspended his phone privileges at the Onondaga County Justice Center.

Having summarized the relevant facts, the court will proceed to the merits of the post-trial motions.

II. DISCUSSION

The standards for granting judgment non obstante veredicto pursuant to Criminal Procedure Rule 29 or a new trial under Rule 33 are well known to this court. Regarding Rule 29, the court has noted that "it matters not whether a motion for judgment of acquittal is made before the jury's verdict or after; the available grounds and standard for granting or denying are the same." United States v. Arena, 918 F.Supp. 561, 565 (N.D.N.Y.1996); accord United States v. Burns, 597 F.2d 939, 941 (5th Cir. 1979). The motion should be granted "if the evidence is insufficient to sustain a conviction," Fed.R.Crim.P. 29(a), or perhaps if there is a "hopeless variance" between the proof and the crime charged, 2 Charles Alan Wright, Federal Practice and Procedure: Criminal 2d § 466, at 654 (1982 & Supp. 1995). The trial judge in considering a motion under Rule 29

must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion; or, to state it another way, if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond reasonable doubt, the motion must be granted. If he concludes that either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, he must let the jury decide the matter.

Curley v. United States, 160 F.2d 229, 232-33 (D.C.Cir.), cert. denied, 331 U.S. 837, 67 S.Ct. 1512, 91 L.Ed. 1850 (1947); accord United States v. Rodriguez, 706 F.2d 31, 41 (2d Cir.1983); United States v. Lieberman, 637 F.2d 95, 104-05 (2d Cir.1980); United States v. Taylor, 464 F.2d 240, 243 (2d Cir.1972); United States v. Moustakis, 864 F.Supp. 390, 391-92 (S.D.N.Y.1994).

As previously mentioned, the evidence should be evaluated in the light most favorable to the government, United States v. Cunningham, 723 F.2d 217, 230 (2d Cir.1983), cert. denied, 466 U.S. 951, 104 S.Ct. 2154, 80 L.Ed.2d 540 (1984), and the defendant carries a very heavy burden, United States v. Chang An-Lo, 851 F.2d 547, 553 (2d Cir.) (citations omitted), cert. denied, 488 U.S. 966, 109 S.Ct. 493, 102 L.Ed.2d 530 (1988).

Motions for new trials present different considerations. District judges retain broader discretion to order new trials than they do to throw out jury verdicts, but even "that discretion should be exercised sparingly." United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir.1992), cert. denied, ___ U.S. ___, 115 S.Ct. 1404, 131 L.Ed.2d 291 (1995). A district judge may order a new trial "if required in the interest of justice." Fed.R.Crim.P. 33. New trials are available upon several grounds, including inter alia newly discovered evidence, juror bias, prosecutorial misconduct, ineffective assistance of counsel, witness perjury, or simply that the verdict was against the great weight of the evidence. See generally 8A James Wm. Moore, Moore's Federal Practice ¶ 33.021 n. 2, 33.04-.06. Of course, the court is usually obliged to defer to the jury's resolution of the weight of the evidence and witness credibility. Sanchez, 969 F.2d at 1414 (quoting United States v. LeRoy, 687 F.2d 610, 616 (2d Cir.1982), cert. denied, 459 U.S. 1174, 103 S.Ct. 823, 74 L.Ed.2d 1019 (1983)).

In ...