U.S. v. Giordano

• Decision Date: 14 February 2003
• Docket Number: No. 3:01CR216 (AHN).,3:01CR216 (AHN).
• Citation: 259 F.Supp.2d 146
• Parties: UNITED STATES of America v. Philip A. GIORDANO
• Court: U.S. District Court — District of Connecticut

259 F.Supp.2d 146

UNITED STATES of America v. Philip A. GIORDANO

No. 3:01CR216 (AHN).

United States District Court, D. Connecticut.

February 14, 2003.

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Peter S. Jongbloed, John A. Danaher, III, John A. Marrella, U.S. Attorney's Office, New Haven, CT, for U.S.

Andrew B. Bowman, Law Offices of Andrew Bowman, Westport, CT, for Defendant.

RULING ON DEFENDANT'S MOTION TO SUPPRESS TITLE III ELECTRONIC SURVEILLANCE INTERCEPTS AND ALL EVIDENCE DERIVED THEREFROM; AND MOTION TO SUPPRESS ORAL STATEMENTS AND ALL EVIDENCE AND TANGIBLE OBJECTS DERIVED THEREFROM

NEVAS, District Judge.

Defendant Philip A. Giordano ("Giordano") moves to suppress the following two bodies of evidence: (1) the government's electronic surveillance that intercept telephone conversations between him and Guitana Jones, a prostitute with whom he had a long-standing relationship, and all evidence derived from those wiretaps; and (2) the oral statements he made to federal agents between July 23-26, 2001, and all evidence derived therefrom. For the reasons discussed below, both motions [docs. ## 100, 103] are DENIED.

BACKGROUND

I. The Waterbury Political Corruption Investigation and the Evidence of Sexual Abuse Involving Minors

This case arose from a municipal political corruption investigation involving the City of Waterbury, Connecticut in which the Federal Bureau of Investigation ("FBI") focused on the activities of Giordano, the Mayor of Waterbury; Joseph Pontoriero ("Pontoriero"), the owner of Worth Construction and reputed member of the Genovese crime family; and their close aides and associates.

Beginning in February 18, 2001, the FBI filed the first of seven applications pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"), 18 U.S.C. §§ 2510-2520 (1982). In those applications, the FBI sought court authorization to intercept the wire and oral communications of Giordano, Pontoriero, and others believed to be involved in municipal corruption and racketeering activities. The FBI detailed its factual basis for those applications in affidavits submitted by FBI Special Agent William S. Reiner, Jr. ("Agent Reiner"). The court granted each of those applications.

On July 13, 2001, the government submitted to the court a report entitled, "Filing Regarding Possible Sex Offense." In a subsequent filing dated July 18, 2001, entitled "Second Filing Regarding Possible Sex Offenses," the government advised of additional intercepted communications that involved Giordano having sexual conduct with minors, including a conversation that occurred at approximately 3:15 p.m. on July 13, 2001, between Giordano and Guitana Jones ("Jones"), a known prostitute who had a long-standing history with Giordano. Based on these communications, Agent Reiner concluded that there was probable cause to believe that Giordano had engaged in sexual relations with at least one minor child.

On July 20, 2001, the government filed an application for electronic surveillance under § 2517 of Title III regarding the interception of the communications involving the sexual misconduct with minors. On the same date, the court issued an order granting the application and issued a criminal complaint charging Jones with conspiring to violate and violating 18 U.S.C. §§ 2425 and 371. The FBI arrested Jones on July 21, 2001. She agreed to cooperate with the FBI and assisted in gathering additional evidence against Giordano.

II. The Superceding Indictment

Thereafter, the grand jury returned an eighteen-count superceding indictment charging Giordano with, among other things, (1) depriving two minor children of their due process liberty rights to be free from sexual abuse in violation of 18 U.S.C. § 242; (2) conspiring to knowingly initiate the transmission of the minor victims' names by using facilities and means of interstate and foreign commerce in violation of 18 U.S.C. §§ 2425 and 371; and (3) knowingly initiating the transmission of the minor victims' names by using facilities and means of interstate and foreign commerce with the intent to entice, encourage, offer, and solicit them to engage in sexual activity in violation of 18 U.S.C. § 2425. The State of Connecticut also charged him separately with first-degree sexual assault, risk of injury to a minor, and conspiracy.

III. The Suppression Hearing

On January 6 and 9, 2003, the court heard oral argument on Giordano's motions to suppress and held an evidentiary hearing on the motion to suppress the oral statements.¹ Giordano filed an affidavit claiming that he had been arrested on the morning of July 23, 2001, and that his presentment before a magistrate was unreasonably delayed until July 26, 2001. He also asserted that all oral or written statements or consents given by him during this time were involuntary. The court also heard testimony from FBI Special Agent-in-Charge Michael Clarke and Agents Reiner, Peter Lavelle, Joseph McTague, and Mark Gentil. The evidentiary hearing, which shall be discussed at greater length infra, disclosed the following relevant facts:

As part of the investigation, FBI agents had Jones arrange to meet Giordano at a commuter parking lot on July 23, 2001. To induce Giordano to attend this meeting, a government agent posing as an associate of Jones demanded a $500 cash payment from Giordano. Giordano was told that if he did not provide the money, Jones's purported associate would publicly disclose Giordano's sexual activities with minors.

Giordano arrived at the commuter parking lot on July 23, 2001, as planned. After Giordano gave the money to the agent posing as Jones's associate, Agent Reiner approached Giordano, identified himself as an FBI agent, and informed him that the FBI had evidence of his sexual misconduct and his corrupt activities as Mayor of Waterbury. The agents at the lot did not display their weapons. Giordano voluntarily exited his vehicle and was hurried into an unmarked FBI car in order to prevent passers-by from noticing him. After Giordano got into the car, Agent Reiner told him that he was not under arrest, and that it would be in his best interest to cooperate in the corruption investigation, which Agent Reiner referred to as "the biggest decision in [Giordano's] life." Agent Reiner repeated several times that Giordano was not under arrest. After a brief period of reflection, Giordano agreed to cooperate and to accompany the agents to the FBI office in New Haven. For his safety and with his permission, the agents handcuffed Giordano's hands in front of his body. The handcuffs were removed after he arrived in New Haven, and he was never again placed in handcuffs until his arrest three days later.

From that time until the morning of July 26, 2001, Giordano actively participated in the FBI's corruption investigation. Agent Reiner testified that Giordano was an excellent cooperating witness and seemed to enjoy assisting with the investigation. During his cooperation, Giordano spoke freely and made several inculpatory statements, including with respect to his sexual misconduct. Giordano also concocted different explanations for his absence from Waterbury that he related to his wife and business associates.

At the government's request, Giordano conducted telephone conversations and face-to-face meetings with targets of the FBI investigation, including Pontoriero and Claudio Mancini. Giordano allowed the government to install a recording device on his cellular telephone, and to place a transmitter and recording device on his person so that the FBI could monitor these conversations and meetings. In addition, when his family was not present, Giordano accompanied FBI agents to retrieve from his home two business suits and $5,250 in cash, which he claimed were given to him by Pontoriero. Giordano signed written statements giving his consent to the above actions.

The hearing further disclosed that while Giordano was cooperating, he was frequently in the presence of federal agents and subject to FBI surveillance, particularly when he was in public. The planning sessions for his cooperation were held primarily at the FBI office in New Haven. In the evenings, federal agents stayed with him at a hotel suite in New Haven. The agents testified that they were concerned for Giordano's safety out of fear that the targets of the corruption investigation could retaliate against him if they found out he had become a cooperating witness. In fact, on the one occasion that Giordano went home to see his family, he specifically requested that a federal agent accompany him.

Nevertheless, during that three-day period, Giordano was afforded a significant degree of personal autonomy. He was allowed to drive by himself in his own car to meet Pontoriero and his son Michael. On July 25, 2001, he drove by himself from New Haven to Waterbury to attend a city meeting in his official capacity as mayor. He met his wife and children on two separate occasions, once in a Waterbury restaurant and once at home. He made more than 100 phone calls on his cellular telephone. Agents also did not accompany him to the bathroom.

On July 25, 2001, Giordano gave a signed, handwritten statement in which he stated that he did not consider himself to be under arrest; that he had been voluntarily staying with federal agents in order to prevent public knowledge of his cooperation; that his actions since July 23, 2001, had been completely voluntary and were done to further the FBI investigation; that he was able to use his cellular phone and had opportunities to contact his family and office; that FBI agents had been with him solely for his protection; and that his cooperation with the FBI was motivated by a desire not only to further the investigation, but also to gain favorable consideration for the crimes of which he was now accused. Agent Reiner provided Giordano with a sample document to prepare this statement, which Giordano...