Giordano v. United States
| Decision Date | 02 December 2015 |
| Docket Number | No. 3:11-cv-9 (SRU),3:11-cv-9 (SRU) |
| Court | U.S. District Court — District of Connecticut |
| Parties | PHILIP GIORDANO, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
The petitioner, Philip Giordano, seeks to vacate and correct his sentence pursuant to 28 U.S.C. § 2255. Giordano is confined at Federal Correctional Institution Tucson, in Tucson, Arizona. Giordano's section 2225 petition, filed on January 4, 2011, raises numerous grounds for relief, stemming primarily from assertions that Andrew Bowman, his attorney at trial and on direct appeal, rendered constitutionally ineffective assistance and that the sentence imposed by the court was unconstitutional. See Pet'r's Mot. to Vacate, Set Aside or Correct Sentence, Giordano v. United States, No. 3:11-cv-9 (SRU), ECF No. 1. On December 2, 2011, Giordano filed an amended petition, raising additional grounds for relief. See Pet'r's Am. Mot. to Vacate, Giordano v. United States, No. 3:11-cv-9 (SRU), ECF No. 77/84.1 For the reasons discussed below, Giordano's section 2255 petition is DENIED.
Giordano is a former mayor of Waterbury, Connecticut. The conviction and sentence that he challenges arose out of an unrelated investigation into potential political corruption in the City of Waterbury during his tenure as mayor. The government received reports from a confidential informant that Giordano had received cash from a reputed member of the GenoveseLa Cosa Nostra family, whose construction firm was awarded several city contracts while Giordano was mayor. The confidential informant, referred to throughout this decision as "CW-1," had, at one point, been Giordano's chief of staff and had worked on both his mayoral campaigns and his 2000 campaign for United States Senate. The two had a falling out during Giordano's Senate campaign and, depending on whether the petitioner or the government's account is to be credited, Giordano either fired CW-1 or CW-1 left his job voluntarily.
CW-1's conduct during his time on Giordano's staff generated a fair amount of controversy due to his management (or mismanagement) of funds and prompted an investigation by the Waterbury Police, at Giordano's request. The Waterbury Police investigation, however, cleared CW-1 of any criminal wrongdoing. The affidavit supporting the government's wiretap request relied upon information provided by CW-1, but did not mention either the potential wrongdoing on CW-1's part or CW-1's acrimonious relationship with Giordano. William S. Reiner, Jr., the FBI agent who prepared the affidavit, independently corroborated some but not all of the information provided by CW-1.
In February 2001, the government obtained an ex parte order from U.S. District Judge Alan H. Nevas authorizing interception of Giordano's phone communications pursuant to the federal wiretap statute, 18 U.S.C. §§ 2510-2520 ("Title III"). Between February and July 2001, the government monitored Giordano's city-issued cell phones, renewing its Title III application every thirty days and submitting periodic progress reports to the district court.
In the course of its corruption-related surveillance, the government intercepted 151 calls on Giordano's cell phones to or from Guitana Jones, then a prostitute with whom Giordano had a long-term sexual relationship. One of those calls, placed on July 9, 2001, suggested that Jones was bringing a nine-year-old girl to Giordano for sex. In another, on July 12, 2001, Giordanoasked Jones whether she would bring over the nine-year-old or another female whose age was not discussed. The girls - referred to as V1 and V2 throughout the criminal proceedings and this ruling - were Jones' nine-year old daughter ("V1") and eleven-year old niece ("V2").
On the afternoon of July 12, after reviewing the contents of those calls, the government had an undercover police officer call Giordano's cell phone and leave an anonymous, threatening message indicating that the caller knew about Giordano's activities with the victims and would reveal Giordano's actions to the media if he continued. The next day, July 13, 2001, the government intercepted a call between Giordano and Jones in which they discussed the message and who might have left it. During the call, Jones assured Giordano that no one knew about Giordano's activities with V1 and V2. She emphasized that the girls had revealed nothing, because Jones "got them to the point where they're scared, if they say somethin' they're gonna get in trouble."
On July 20, 2001, the government filed a criminal complaint against Jones charging her with violations of 18 U.S.C. §§ 371 and 2425 and obtained a warrant for her arrest. The next day, July 21, 2001, state authorities removed V1 and V2 from Jones' household. Jones was also arrested that day, after investigators saw her collecting $200 in cash from Giordano's mailbox. Earlier that day, Jones had successfully exploited Giordano's concern regarding the anonymous phone call by informing Giordano that the caller was a driver who knew about the abuse and was demanding hush money. After her arrest, Jones assisted the FBI in its efforts to apprehend Giordano by calling him and telling him that the driver was demanding more hush money, and arranging an in person meeting on July 23, 2001.
The meeting occurred on July 23 as scheduled and Giordano gave Jones $500 in cash. After that exchange, agents approached Giordano and informed him that they had evidence of hissexual misconduct and political corruption. Over the next seventy-two hours, Giordano cooperated with the agents in the ongoing investigation of other targets of the corruption investigation. Giordano was arrested on July 26, 2001.
On September 12, 2001, a federal grand jury returned a fourteen-count indictment against Giordano and Jones. The indictment charged Giordano with two counts of violating the civil rights of V1 and V2 under color of law, in violation of 18 U.S.C. § 242; one count of conspiring with Jones to transmit knowingly the names of V1 and V2 by using facilities and means of interstate commerce with intent to entice, encourage, offer and solicit criminal sexual activity, in violation of 18 U.S.C. §§ 371 and 2425; and eleven counts of substantive violations of 18 U.S.C. § 2425, each alleging a particular transmission via telephone of the name of V1 and/or V2 with intent to entice, encourage, offer and solicit illegal sexual activity. Jones pleaded guilty to several counts of the indictment on September 10, 2002, and entered into a written cooperation agreement. On January 16, 2003, the grand jury returned a superseding indictment against Giordano adding four additional counts of substantive violations of section 2425.
Prior to his trial, Giordano moved to dismiss the original indictment on several grounds, asserting: (1) the counts alleging violations of 18 U.S.C. § 2425 failed to state federal offenses, because section 2425 only applies to interstate telephone calls and the calls between Giordano and Jones were all placed and received in Connecticut; (2) V1 and V2 did not have a federally protected right to be free of "aggravated sexual abuse and sexual abuse," because that right can only exist within the special maritime and territorial jurisdiction of the United States or where the defendant has crossed state lines to commit such sexual abuse; (3) he did not "act under color of law" in allegedly committing acts that otherwise violated 18 U.S.C. § 242; and (4) the chargesagainst him lacked the constitutionally required specificity. Judge Nevas denied that motion in its entirety. United States v. Giordano, 260 F. Supp. 2d 477 (D. Conn. 2002).
Giordano also moved Judge Nevas to disqualify himself from deciding a motion to suppress the wiretap evidence, because Judge Nevas had presided over the wiretap that Giordano was challenging. Judge Nevas denied that motion and Giordano sought a writ of mandamus in the Second Circuit, which denied Giordano's mandamus petition by unpublished order. See In re Giordano, No. 02-3095 (2d Cir. June 3, 2002). Giordano then filed a second motion for recusal, on the grounds of bias. Judge Nevas denied that motion as well. See United States v. Giordano, No. 3:01-cr-216 (AHN), 2002 WL 32086481 (D. Conn. Nov. 14, 2002).
Finally, Giordano moved to suppress the evidence discovered as a result of the wiretap and also requested a Franks hearing. Judge Nevas denied both the motion to suppress and the request for a Franks hearing. United States v. Giordano, 259 F. Supp. 2d 146 (D. Conn. 2003).
The federal authorities had shared information regarding the alleged sexual abuse of V1 and V2 with Connecticut state authorities. The state decided to take action and, as a result, Giordano was facing state sexual assault charges concurrently with the federal charges. Prior to Giordano's federal trial, his attorney attempted to negotiate a global settlement with state and federal authorities. Giordano did not accept the terms of the settlement and opted to go to trial.
Judge Nevas presided over Giordano's federal jury trial from March 12 to March 24, 2003. The heart of the government's case was the intercepted phone calls and the testimony of Jones, V1 and V2, and, to some extent, the drivers who took Jones and the girls to see Giordano. The government introduced 133 of the 151 wiretapped phone conversations between Giordano and Jones, several of which explicitly reference Jones "bringing" V1, V2 or both to Giordano. The government also presented expert evidence showing that that all of the calls were made onphones capable of transmitting phone signals between states and that the actual calls described in counts four through nine of the indictment (though not the other calls) necessarily were routed through a switching center in White Plains, New York.
Jones testified that she met Giordano well before his 1995 election to the mayor's office, when Giordano was a lawyer in private practice,...
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