U.S. v. Giordano, Docket No. 03-1394.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation442 F.3d 30
Docket NumberDocket No. 03-1394.
PartiesUNITED STATES of America, Appellee, v. Philip A. GIORDANO, Defendant-Appellant.
Decision Date03 March 2006

Andrew B. Bowman, Westport, CT, for the appellant.

Peter S. Jongbloed, John A. Marrella, Assistant United States Attorneys (John H. Duram, Deputy United States Attorney, District of Connecticut, William J. Nardini, Assistant United States Attorney, on the brief), New Haven, CT, for the appellee.

Before: JACOBS, SOTOMAYOR, and HALL, Circuit Judges.

SOTOMAYOR, Circuit Judge.

Defendant-appellant Philip A. Giordano appeals from a June 13, 2003 judgment of conviction and sentence entered after a jury trial before the United States District Court for the District of Connecticut (Nevas, J.). Giordano, formerly the mayor of Waterbury, Connecticut, was convicted of two counts of civil rights violations under color of law in violation of 18 U.S.C. § 242, one count of conspiracy to use a facility of interstate commerce for the purpose of enticing a person under the age of sixteen years to engage in sexual activity in violation of 18 U.S.C. §§ 371 and 2425, and fourteen substantive counts of such use of a facility of interstate commerce in violation of § 2425. All of the convictions stem from Giordano's repeated sexual abuse of the minor daughter and niece of a prostitute. Giordano raises a host of challenges to his convictions and sentence, the majority of which are addressed in a separate summary order also filed today. We write separately to address Giordano's claims that (1) § 2425 does not reach intrastate use of a telephone for the unlawful purposes specified in the statute and that the application of the statute to such activity exceeds Congress's power under the Commerce Clause, U.S. Const. art. 1 § 8, cl. 3; (2) the evidence was insufficient to support his convictions under 18 U.S.C. § 242; and (3) the district court abused its discretion in failing to recuse itself from ruling on the admissibility of wiretap evidence because it had earlier approved the wiretap under 18 U.S.C. § 2518. Because these challenges and the arguments addressed in the summary order lack merit, we affirm the judgment of conviction.

BACKGROUND
1. Giordano's investigation and arrest

Giordano's prosecution on the charges that led to this appeal grew out of an unrelated investigation by the FBI and IRS into political corruption in the city of Waterbury. Giordano, then mayor of Waterbury, was a target of this investigation. On February 18, 2001, the government obtained from United States District Judge Alan H. Nevas of the District of Connecticut an ex parte order authorizing it to intercept phone communications of Giordano and other targets of the investigation pursuant to the federal wiretap statute commonly known as "Title III," 18 U.S.C. §§ 2510-2520. Between February and July of 2001, the government continued to monitor calls made to and from Giordano's city-issued cell phones, among others, renewing its Title III application every thirty days and submitting periodic progress reports to the district court. Judge Nevas approved the renewal applications in each instance (a total of seven times).

In the course of this surveillance, the government intercepted 151 calls on Giordano's cell phones to or from Guitana Jones, a prostitute with whom Giordano had a long-term sex-for-money relationship. On July 12, 2001, the government reviewed the contents of a brief July 9 call between Jones and Giordano that suggested that Jones was bringing a nine-year-old girl to Giordano for sex. In another, equally brief July 12 call, Giordano asked if Jones would have with her the nine-year-old or another female whose age was not discussed. The government had an undercover police officer call Giordano's cell phone on the afternoon of July 12 and leave an anonymous message telling him, in threatening and profane but vague terms, that the caller knew about the little kids and would tell the media if Giordano did not desist. On July 13, the government intercepted a call between Giordano and Jones in which Giordano told Jones about the message and discussed who might have left it. Giordano asked if the father of the second individual was alive, to which Jones replied: "No, [she] don't say nothin' . . . . [T]hey, them kids haven't said anything. They do not say nothing." Giordano answered, "Well someone said something to someone because this dude knew." Later in the same conversation, Jones said: "Nobody knows about them. Nobody. Nobody knows about them at all `cause they don't even say nothing `cause I got them to the point where they're scared, if they say somethin' they're gonna get in trouble. They don't say anything."

The government advised the district court, in filings on July 13 and 18, that it believed that Jones might be procuring for Giordano the sexual services of Jones' daughter and another minor female relative. 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. In the early hours of July 21, 2001, state authorities removed Jones' nine-year-old daughter (whom we refer to as "V1") and her eleven-year-old niece ("V2"), from the Jones household. The FBI intercepted a call soon after in which Jones advised Giordano that state authorities had removed the girls. Jones falsely told Giordano that a driver who had taken Jones, V1 and V2 to see Giordano was demanding $200 not to tell the authorities. Giordano placed this sum in an envelope in the mailbox outside his house. The FBI arrested Jones shortly after she retrieved the money.

At the behest of the FBI, Jones then called Giordano and falsely told him the driver was demanding additional payment. Giordano and Jones agreed to meet in a commuter parking lot on July 23, where Giordano would give her $500. On that date, after Giordano had given Jones money at the parking lot, agents approached him and informed him that they had evidence of his sexual misconduct and other corrupt activities not relevant to the instant appeal. Over the next seventy-two hours, Giordano cooperated with the agents in the ongoing investigation of other targets of the original corruption investigation. On July 26, Giordano was arrested.

2. Indictment and relevant pre-trial proceedings

A federal grand jury returned a fourteen-count indictment against Giordano on September 12, 2001. That 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 (to wit, telephones), 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 § 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. Before trial, Giordano moved to dismiss the indictment on various grounds, including two of the grounds he raises here. The district court rejected his motion in a published decision, United States v. Giordano, 260 F.Supp.2d 477 (D.Conn.2002) ("Giordano I"). Giordano also moved Judge Nevas, to whom the case was assigned, to disqualify himself from ruling on a pending motion to dismiss the wiretap evidence on the ground that Judge Nevas had earlier granted the Title III orders, the validity of which Giordano now challenged. Judge Nevas denied this motion for recusal. Giordano then sought a writ of mandamus in this Court seeking to overturn Judge Nevas' denial of the recusal motion; his petition was denied by unpublished order of this Court on December 18, 2002.1 See In re Giordano, No. 02-3095 (2d Cir. June 3, 2002) ("Giordano III").

On January 16, 2003, the grand jury returned a superseding indictment ("the indictment") adding four additional counts of substantive violations of § 2425, each count alleging another specified phone call in which the names of V1 and/or V2 were transmitted for purposes of sexual abuse.

3. The trial

Giordano was tried before a jury from March 12 to March 24, 2003. In all, some fifty-three witnesses testified. The heart of the government's case was the testimony of Jones, V1 and V2, and the intercepted phone calls. Jones testified that she met Giordano well before his 1995 election to the mayor's office, when Giordano was a lawyer in private practice. From the time she first met him until the time of her arrest in 2001, she frequently had sex with Giordano in exchange for money, which she used to support her addiction to crack cocaine. She met him as often as two or three times a week, usually at his law office, and sometimes arranged for other women to come with her. Jones testified that in the summer of 2000, while he was mayor of Waterbury, Giordano asked her to bring "young girls" to perform sexual services. In response to this request, Jones brought several girls between the ages of fourteen and sixteen, including a niece, to perform oral sex on Giordano.

Jones testified that in November of 2000, on an occasion when Jones had brought her daughter V1, her niece V2, a nephew and a son with her to Giordano's law office, Giordano asked her elliptically "What about [V1]?", which Jones understood as a request that V1, then eight years old, perform oral sex on him. Jones testified that she said no, but at a subsequent visit a few days later she brought V1 and instructed her to touch Giordano's penis until he ejaculated; while this happened, V2 and other children in Jones' care were in the law office waiting area, separated by a closed door. Several days thereafter, Jones brought both V1 and V2, who was then ten years old, to the...

To continue reading

Request your trial
94 cases
  • V.S. ex rel. T.S. v. Muhammad, 07-cv-213(DLI)(JO).
    • United States
    • U.S. District Court — Eastern District of New York
    • September 30, 2008
    ...that a wrongdoer "possesses by virtue of state law" and acting while "clothed with the authority of state law." United States v. Giordano, 442 F.3d 30, 42-43 (2d Cir. 2006) (citations omitted). Generally, private conduct is not proscribed by the Fourteenth Amendment and does not give rise t......
  • United States v. Morgan
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • April 9, 2014
    ...is a facility or means of interstate commerce “is a question of law, to be answered by the ... judge”); see also United States v. Giordano, 442 F.3d 30, 40 (2d Cir.2006) (holding, as a matter of statutory interpretation, that intrastate telephone use constitutes the use of a facility or mea......
  • Doe v. City of Waterbury
    • United States
    • U.S. District Court — District of Connecticut
    • September 28, 2006
    ...abused his power as mayor certainly tends to support plaintiffs' claim that he acted under color of law. See United States v. Giordano, 442 F.3d 30, 42-42 (2d Cir.2006). When a plaintiff brings a claim against a municipality, however, it is not enough to show that an official acted under co......
  • Douyon v. N.Y. Med. Health Care, P.C.
    • United States
    • U.S. District Court — Eastern District of New York
    • September 28, 2012
    ...accounts owed using the instrumentalities of interstate commerce, including telephone and mail services”); see United States v. Giordano, 442 F.3d 30, 39 (2d Cir.2006) (holding that national telephone network was a facility of interstate commerce under the federal murder-for-hire statute). ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT