U.S. v. Giordano

• Decision Date: 29 July 2002
• Docket Number: No. 3:01CR216 (AHN).,3:01CR216 (AHN).
• Citation: 260 F.Supp.2d 477
• Parties: UNITED STATES of America, v. Philip A. GIORDANO.
• Court: U.S. District Court — District of Connecticut

260 F.Supp.2d 477

UNITED STATES of America, v. Philip A. GIORDANO.

No. 3:01CR216 (AHN).

United States District Court, D. Connecticut.

July 29, 2002.

COPYRIGHT MATERIAL OMITTED

Andrew B. Bowman, Law Offices of Andrew Bowman, Westport, CT, for Philip A. Giordano.

Richard A. Reeve, Sheehan & Reeve, New Haven, CT, for Guitana M. Jones.

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

RULING ON MOTIONS TO DISMISS

NEVAS, District Judge.

Defendant Philip Giordano (the "Defendant") moves to dismiss all fourteen counts of the indictment against him. For the following reasons, the motions [doc. # s 90 and 94] are DENIED.

BACKGROUND

A federal grand jury returned a fourteen count indictment against Giordano and co-defendant Guitana M. Jones on September 12, 2001. Counts one and two of the indictment allege that the Defendant, the former Mayor of Waterbury, Connecticut, while acting under color of law, deprived two children of rights and privileges secured and protected by the Constitution and laws of the United States, in violation of 18 U.S.C. § 242. Specifically, these counts allege that he deprived the children of their liberty without due process of law, including the right to be free from aggravated sexual abuse, by coercing and forcing the victims, who had not attained the age of 12 years, to engage in sexual acts with him, resulting in their bodily injury. Count three of the indictment alleges that from approximately February 24, 2001 through July 21, 2001, the Defendant and Jones conspired with one another to knowingly initiate the transmission of the names of the two victims by using facilities and means of interstate and foreign commerce, that is two cellular telephones and other telephones, knowing that the victims had not attained the age of 16 years, in violation of 18 U.S.C. § 371.

The remaining counts identify eleven separate instances in which Giordano and Jones are alleged to have knowingly initiated the transmission of the names of either victim by using cellular telephones and other telephones knowing that the victims had not attained the age of 16 years, in violation of 18 U.S.C. § 2425. Several of these alleged calls took place while the Defendant, Jones and the minor victims were physically within the state of Connecticut.

STANDARD

Rule 7(c) of the Federal Rules of Criminal Procedure governs indictments.

This rule only requires an indictment to contain a "plain, concise and definite written statement of the essential facts constituting the offense charged." To be legally sufficient, an indictment must adequately charge the elements of an offense, fairly inform the defendant of the charges he must meet, and contain enough detail to permit the defendant to plead double jeopardy in a future prosecution based on the same set of events. See e.g., United States v. Walsh, 194 F.3d 37, 44 (2d Cir.1999). The Second Circuit routinely upholds the legal sufficiency of indictments that do little more than track the statutory language of the offense charged and state the approximate time and place of the alleged crime. See id.

An indictment does not have to set forth evidence or details of how the crime was committed. See e.g., United States v. Carrier, 672 F.2d 300, 303-04 (2d Cir.1982). The validity of an indictment is tested by its allegations, not by whether the government can prove its case. See Costello v. United States, 350 U.S. at 63. Thus, a technically sufficient indictment "is not subject to dismissal on the basis of factual questions, the resolution of which must await trial." See, e.g., United States v. Alfonso, 143 F.3d 772, 776-77 (2d Cir. 1998) (holding that district court erred in dismissing indictment based on sufficiency of evidence); United States v. Paccione, 738 F.Supp. 691, 696 (S.D.N.Y.1990). "It is axiomatic that, in a criminal defendant may not challenge a facially valid indictment prior to trial for insufficient evidence. Instead, a defendant must await a Rule 29 proceeding or the jury's verdict before he may argue evidentiary sufficiency." United States v. Gambino, 809 F.Supp. 1061, 1079 (S.D.N.Y.1992). For this reason, in considering a defendant's motion to dismiss an indictment, the court must be aware of claims that conflate or confuse sufficiency of the government's evidence with sufficiency of the government's allegations.

DISCUSSION

I. Counts Three Through Fourteen

Counts three through fourteen of the indictment charge the Defendant with conspiracy to violate and substantive violations of 18 U.S.C. § 2425. The Defendant moves the court to dismiss counts three through fourteen for failure to state federal offenses. The Defendant argues that 18 U.S.C. § 2425 only applies to interstate cellular communications and thus does not apply in this case because the alleged cellular communications occurred entirely intrastate, that is, entirely within the state of Connecticut. The Defendant further argues that construing § 2425 as applying only to intrastate communications would be unconstitutional because Congress does not have the power under the Commerce Clause and Article 1, Section 8, Clause 3 of the Constitution to regulate purely intrastate activity. The court disagrees.

To be sufficient, an indictment charging a violation of § 2425 must allege the following: (1) that the defendant used the mail or any facility or means of interstate or foreign commerce; (2) that the defendant knowingly initiated the transmission of the name, address, telephone number, social security number or electronic mail address of another individual; (3) that the defendant knew that such other individual had not attained the age of 16 years; and (4) that the defendant intended to entice, encourage, offer, or solicit any person to engage in any sexual activity for which any person can be charged with a criminal offense, or attempted to do so.

Despite the fact that the indictment makes such allegations, the Defendant maintains that it should be dismissed because he did not use a facility or means of interstate commerce and because the "offense objects" did not occur across state lines or within the special maritime and territorial jurisdiction of the United States.

A. Use Of An Interstate Facility

In a § 2425 violation, the jurisdictional requirement, that is, the use of a facility or means of interstate or foreign commerce, is a substantive element of the offense charged. Because this element is intermeshed with the "general issue" of whether the defendant violated the statute, it is ordinarily not appropriately decided on a motion to dismiss. See United States v. Alfonso, 143 F.3d 772, 777 (2d Cir.1998); United States v. Ayarza-Garcia, 819 F.2d 1043, 1048 (11th Cir.1987) ("When a question of federal subject matter jurisdiction is intermeshed with questions going to the merits, the issue should be determined at trial.....This is clearly the case when the jurisdictional requirement is also a substantive element of the offense charged.") (quoted in Alfonso, 143 F.3d at 777); see also, United States v. Doe, 63 F.3d 121, 125 (2d Cir.1995) ("A defendant is only entitled to raise in pretrial motions a `defense, objection, or request which is capable of determination without the trial of the general issue.'") (quoting F.R.Crim. P. 12(b)).

The exception to this general principle regarding pretrial motions relating to the "general issue" is where the government has made a full proffer as to the evidence it will present to satisfy a particular element. See Alfonso, 143 F.3d at 777. Unless the government has made such a proffer, it is inappropriate for the court to entertain a motion challenging the sufficiency of the evidence at the pretrial stage. See id.

The government has made no such proffer in this case. Though the government did indicate some of the evidence it would present to support the jurisdictional element in its written response to the Defendant's motion and at oral argument, this limited preview of the government's case can in no way be construed as a full proffer on this element. Thus, a ruling on the jurisdictional element of the § 2425 counts is premature at this stage of the case.

However, in passing, the court notes that recent Second Circuit precedent would support denial of the Defendant's motions. In United States v. Gil, 297 F.3d 93 (2d Cir.2002), the Second Circuit examined a challenge to a mail fraud conviction where the defendant used Federal Express to deliver intrastate mailings in furtherance of a scheme to defraud. Like the Defendant here, Gil argued that an amendment to the statute in question ran afoul of the Commerce Clause "because it criminalize[d] conduct that takes place entirely intrastate and that has no substantial effect on interstate commerce." Gil, 297 F.3d at 99-100.

The Gil court looked at the three areas identified by the Supreme Court in United States v. Lopez as activities that Congress may regulate pursuant to the Commerce Clause: (1) the channels of interstate commerce; (2) the instrumentalities of interstate commerce; and (3) activities that substantially affect interstate commerce. See U.S. v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626. The Second Circuit determined that it is not necessary to find a substantial effect on interstate commerce when Congress regulates activities under one of the first two Lopez categories. The Second Circuit stated that "private and commercial interstate carriers, which carry mailings between and among states and countries, are instrumentalities of interstate commerce, notwithstanding the fact that they also deliver mailings intrastate." Gil, 297 F.3d at 99-100. Thus, the court held that "intrastate mailings sent or delivered by private or commercial interstate carriers, is a permissible exercise of Congress's power under the second Lopez category." Id. at 100-01. The Tenth Circuit used similar reasoning with respect to telephones when...