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UNITED STATES v. CASCIANO

May 20, 1996

UNITED STATES OF AMERICA
v.
MICHAEL A. CASCIANO, Defendant.



The opinion of the court was delivered by: MUNSON

 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, 80 L. Ed. 2d 540, 104 S. Ct. 2154 (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. Roth 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 ...


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