United States v. Philip Giordano, Docket No. 03-1394 (2d Cir. March 3, 2006) (Jacobs, Sotomayor, Hall):
Giordano is the former mayor of Waterbury, Connecticut. He was convicted by a jury of (1) two counts of 18 U.S.C. § 242 (violating someone's civil rights "under color of  law") (the "civil rights counts"); (2) fourteen counts of 18 U.S.C. § 2425 (using a "facility of interstate commerce" to transmit the name or other identifying information of a person under age 16, with the intent to entice or solicit the person to engage in sexual activity) (the "phone counts"); and (3) one § 371 conspiracy count involving the § 2425 violations. On appeal, he raised numerous arguments, three of which are discussed by the Court in this published decision (the remaining arguments are discussed -- and rejected -- in an unpublished summary order): (1st) that the § 2425 convictions must be vacated because all of the underlying phone calls were intra
-state ones (i.e.
, both Giordano and the other party were within Connecticut when the calls were made); (2nd) that the evidence was insufficient to support his conviction on the § 242 counts, since he did not act under "color of law" when he procured sexual services, by paying a prostitute named Jones, from Jones's 9 year old daughter and 11 year old niece; and (3) that the district judge, who had authorized the wiretap applications that uncovered Giordano's sordid misdeeds, should have recused himself from acting as the judge at trial. The Circuit rejects all three arguments -- all of which are, apparently, issues of first impression in this Circuit -- and affirms the conviction; Judge Jacobs dissents -- correctly, we believe -- on the 2nd issue.
The essential facts are thus. Federal agents were investigating Giordano, then Waterbury's mayor, in an unrelated corruption investigation (that's Connecticut for you). They obtained a wiretap authorization on his phone from Judge Nevas (who later acted as the trial judge). In the course of listening to Giordano's phone conversations, agents learned that Giordano regularly procured sex from Jones -- and that he had done so even before becoming mayor. Agents also learned, eventually, that Giordano paid Jones to bring along her 9 year old daughter and 11 year old niece. The children performed oral sex on Giordano on numerous occasions, including a few times in the mayor's office and once in the mayoral limo. All of the phone calls setting up the meetings between Giordano and Jones and the children were made within the state of Connecticut.
Giordano never coerced Jones or the children into having sex with him; he paid Jones for the services. Nor did he explicitly use his status as mayor to facilitate these acts. However, he told Jones and the children that they should never tell anyone about their activities, because "I could go to jail" and "[Jones] could go to jail." At trial, the children testified that they did not refuse Giordano's advances, or report him to the authorities, because they thought that he, as the mayor, controlled the police and would put them in jail if they did.
As noted, the jury convicted Giordano on two civil rights counts; fourteen phone counts; and one conspiracy count. The judge imposed a sentence of 444 months on each of the civil rights counts, and 60 months (the statutory maximum) on the remaining fifteen counts, all to run concurrently.
First, the Circuit rejected Giordano's claim that the evidence on the phone counts was insufficient because he made no inter-state calls. The Court ruled that simply using a telephone is sufficient to satisfy § 2425's jurisdictional requirement, since the statutory language proscribes using any "facility of interstate commerce" for the stated illicit purpose. Op. 13-15. The Court also rejected Giordano's alternative claim that such a reading of § 2425 would render it unconstitutional under Lopez v. United States
, 514 U.S. 549 (1995). As the Court explained, this statute "is clearly founded on the second type of Commerce Clause power categorized in Lopez
, that is, the power to regulate and protect the instrumentalities of interstate commerce, 'even though the threat may only come from intrastate activities.'" Op. 17 (quoting Lopez
, 514 U.S. at 558).
Second, the Court rejected Giordano's claim that, even if he did what the Government said he did, the evidence was insufficient to show that he acted "under color of [state] law". As the Supreme Court has long held, the "color of law" language requires the Government to prove a "misuse of power, possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law." United States v. Classic
, 399 U.S. 299, 326 (1941) (emphasis added); see also Screws v. United States
, 325 U.S. 91, 111 (1945) ("'under color of law' means under 'pretense' of law"); Op. 20 (person acts "under color of law" when he or she "employs the authority of the state in the commission of the crime"). And, Giordano pointed out, he did not use his mayoral status to commit the charged crimes. Indeed, his relationship with Jones preceded his election as mayor. He simply paid her to have sex with him, and then paid her to allow him to have sex with her daughter and niece.
The Court rejected this claim, relying on the theory that Giordano's "threats" to Jones and the children that they would be in big trouble and "go to jail" if they disclosed their activities with Giordano, satisfied the "color of law" requirement. Op. 24. As the Court explained, the jury could have found, based on the evidence adduced, that Giordano "threatened his victims by invoking a 'special authority' to undertake retaliatory action, and . . . used his authority to cause the victims to submit to repeated abuse . . . by causing [them] to fear that he would use his powers to harm them if they reported the abuse." Op. 24. Referring to one child's testimony that Giordano repeatedly mentioned his connection with the police and her understanding that this meant that "he had control of what the police does," the Court concluded that "this evidence was sufficient to satisfy the Government's burden of showing that Giordano invoked 'the real or apparent power' of his office to make the continuing sexual abuse possible." Op. 25.
Finally, the Court quickly rejected Giordano's claim that Judge Nevas should have recused himself as the trial judge because he approved of the earlier wiretap applications: "The authorization of a wiretap under Title III does not 'evidence the degree of favoritism or antagonism required' to necessitate recusal under § 455(a)." Op. 28 (quoting Liteky v. United States
, 510 U.S. 540 (1994)).
Judge Jacobs viogorously dissents on the second point, arguing that nothing showed that the criminal acts were "made possible only because [Giordano] [was] clothed with the authority of state law," as required under Classic
. Op. 30. As he points out, it is "not enough for the government to show that abuse of government power was a contributing cause or background influence in the deprivation of the victim's rights; it must be the but-for
(emphasis added). And the evidence in this case -- very far afield from from the typical § 242 prosecution involving, e.g., excessive use of force by prison guards or by police officers during an arrest (e.g.
, the Rodney King case) -- did not show that Giordano's position as mayor was the "but-for and indispensable means of the child abuse." Op. 31. Rather, the evidence showed that the same misconduct could have occurred had Giordano been an architect or plumber: He simply paid someone for sex. In Judge Jacob's view, "the sole cause of the abuse was that a sexual predator had access to sufficient cash (and a willing facilitator) to purchase the sexual services of children. Analytically, there is no distinction between the supposed threat in this case and any instance in which the customer of a prostitute demands confidentiality . . . ." Op. 32. Giordano did not use his power to "cause the victims to submit, . . . to create the opportunity to be alone with the victims and coerce them, . . . or to assert special authority for the misconduct or to undertake retaliatory action." Op. 33.
Judge Jacobs uses a hypothetical to show that not every illegal, unenforceable contract entered into by "the mayor of a small city [who] commands a police force" is thereby "made possible because of his office
, under color of law." Op. 32-33. The hypo involves a mayor who makes an illegal bet on horse races with his bookie:
"If the mayor hits the trifecta, his bookie may be most unhappy about paying, and may appreciate the mayor's power to get him arrested; a warning to keep quiet about the illegal transaction would be iimplicit whether or not recited; and the fact of the office would be evident. Still, it cannot seriously be argued that a bookie's payment under those circumstances would be extorted under color of law. The situation is indistinguishable from Giordano's, as the government all but conceded at oral argument."
This Blog shares Judge Jacobs's skepticism about the sufficiency of the civil right counts. However, we take issue with his claim that this "is no small thing" as applied to Giordano's case. Judge Jacobs asserts that "Giordano's sentence is thirty-seven years (444 months); without conviction on the civil rights counts, Giordano['s] federal sentence would be five years." Op. 29.
This is clearly misleading. Although the sentence, as it currently stands, involves a 444-month sentence on the two civil rights counts and concurrent 60-month sentences on the fifteen phone counts, surely the sentencing judge would not simply keep the status quo
on the phone counts were the civil rights counts vacated. Even without the § 242 counts, the same 37-year sentence can be achieved simply by "stacking" many of the § 2425 counts (i.e.
, by running the 60-month sentences consecutively rather than concurrently).