*1 joined upon the issues than to hear its own consider length to no other end resonate.”).1 summary judg- briefly, filing a motion for write how- FBI’s We words argument ever, one raised ment. to address not did raise Sephton appeal Affirmed. district court.
before the that, by opera Sephton contends 8(d), FBI’s failure
tion Fed.R.Civ.P. complaint to his an answer FOIA file an all of the alle
amounts to admission to complaint, includ
gations contained FBI acted in
ing allegation that “the when, response plaintiff faith bad America, UNITED STATES request it Sephton’s legitimate FOIA Appellee, adequate its did conduct an search of not ” Seph The FBI counters records.... GIORDANO, Philip A. Defendant- argument by raising not
ton forfeited Appellant. Masonry it See B & T Constr. Co. below. Co., 382 F.3d
v. Public Srv. Mutual Ins. No. 03-1394. Docket Cir.2004). (1st Appeals, Court of United States not for and does call The issue foreit Circuit. Second plain an to correct exercise our Lowell, City errors. See Chestnut Oct. Argued: (1st Cir.2002) (en per banc F.3d 3, 2006. March Decided: curiam). At two other circuits have least require not an an- held that FOIA does so as the complaint long
swer to the issues joined, example, by
are otherwise dispositive motion. Chilivis v.
filing a See Comm’n, Exchange
Securities and (11th Cir.1982) (filing a require- FOIA’s
motion dismiss satisfies an or agency
ment that file answer plead”); Coney, v. T.R.
“otherwise Weber (5th Cir.1981) (same 93-94 summary respect to a motion for expressly adopt needn’t
judgment). We here;
reject light proposition precedent language
above allowing agency
statute to “answer or 552(a)(4)(C), plead,” 5 U.S.C.
otherwise plain error for the district court CRS, adequately we agree searched the 1. Because that the FBI's affidavits FBI Sephton's copies potentially respon- need not consider contention establish that all obligation including origi- FBI had an to search offices sive documents documents— office, Washington, than the office nating from FBI’s D.C. of- other its New York request was directed. which FOIA fices—would have been stored in CRS *3 Bowman, CT, Westport, Andrew B. for appellant. Marrella, A. Jongbloed, Peter S. John (John Attorneys Assistant United States Duram, Deputy H. Attor- United States Connecticut, ney, District of William J. Nardini, Attorney, Assistant United States CT, brief), Haven, on the New appellee. SOTOMAYOR, JACOBS,
Before: HALL, Judges. Circuit SOTOMAYOR, Judge. investigation Circuit unrelated the FBI and political corruption city IRS into Philip Defendant-appellant A. Giordano Giordano, Waterbury. then mayor Wa- judgment appeals from June terbury, was a target investigation. entered conviction sentence after February 18, government On jury trial States before United District obtained from United States District (Nev Court for the District of Connecticut Judge Alan H. Nevas District J.). as, Giordano, formerly mayor Connecticut an ex order parte authorizing Connecticut, Waterbury, was convicted intercept phone it to communications of of civil rights two counts violations under targets Giordano and other investi- color of law violation of U.S.C. *4 gation pursuant wiretap to the federal facility of conspiracy one count to use a commonly III,” statute known as “Title purpose interstate commerce for §§ February U.S.C. 2510-2520. Between enticing person age under the of sixteen July government and contin- years engage activity in sexual viola ued to monitor calls made to and from §§ tion of U.S.C. and and city-issued phones, among cell Giordano’s fourteen substantive counts of such use others, renewing Title III application its facility of interstate commerce viola every thirty days and submitting periodic tion of 2425. All of the convictions stem progress reports to the court. district sexual repeated Giordano’s abuse Judge approved appli- Nevas the renewal daughter niece of prosti minor and (a in each cations instance total of seven challenges tute. Giordano raises a host times). sentence, majori to his convictions and ty of are in a separate which addressed surveillance, In the course of this summary today. order also filed We write government intercepted 151 calls on Gior- separately to address Giordano’s claims cell phones dano’s to or from Guitana (1) § reach does not intrastate Jones, a prostitute with whom Giordano telephone use of a pur for the unlawful long-term sex-for-money had a relation- poses specified the statute and that the ship. July On the government application activity of the statute such July reviewed the of a brief 9 call contents Congress’s under exceeds the Com suggest- between Jones and Giordano Clause, 3; 8,§ art. 1
merce U.S. cl. Const. bringing nine-year-old ed that Jones was (2) the evidence was insufficient to support another, girl to Giordano for sex. 242; under and convictions 18 U.S.C. call, equally July brief asked Giordano (3) the district court its abused discretion if Jones would have with her the nine- in failing ruling to recuse itself from on the year-old age or another female whose admissibility of wiretap evidence because government not discussed. The had an approved wiretap had earlier under police call undercover officer Giordano’s challenges U.S.C. 2518. Because these phone July cell on the afternoon of and arguments and the addressed the sum him, anonymous telling message leave an merit, lack mary judg order affirm the profane in threatening vague but ment of conviction. terms, that the caller knew about the little kids and would media if tell the Giordano BACKGROUND July govern- did not desist. On
1. Giordano’s investigation and arrest intercepted ment a call between Giordano prosecution charges Giordano’s on the in which Giordano Jones Jones told appeal grew led out message about discussed who they it. if the him and informed him that had evi- might left Giordano asked alive, and other dence of his sexual misconduct father of the individual was second to the in- “No, corrupt activities relevant say replied: which Jones don’t [she] seventy-two appeal. stant Over the next .... [T]hey, nothin’ them kids haven’t said hours, cooperated with the Giordano anything. They say nothing.” do not of oth- agents ongoing investigation answered, said “Well someone targets original corruption er inves- dude something to someone because this tigation. July On Giordano was arrest- conversation, knew.” Later in the same ed. “Nobody them. Jones said: knows about all Nobody. Nobody knows about them at pre-trial £ Indictment and relevant I they say nothing
‘cause don’t even ‘cause proceedings they’re got point them to the where grand jury A federal returned a four scared, they say they’re if gonna somethin’ against teen-count indictment Giordano on get They say anything.” in trouble. don’t 12, 2001. That indictment September government advised the district charged Giordano with two counts of vio court, filings July 13 and that it lating rights civil VI V2 *5 might for procuring believed Jones be law, in color of of 18 U.S.C. violation Giordano the sexual services of Jones’ 242; one count of conspiring with Jones daughter and another minor female rela- knowingly transmit the names of VI and 20, 2001, July government tive. On by using V2 facilities means inter complaint against filed criminal Jones (to wit, telephones), state commerce charging her with violations of 18 U.S.C. entice, encourage, intent to offer and soli §§ 371 and 2425 and obtained a warrant activity, cit criminal sexual in violation of early July for her arrest. In the hours of 2425; §§ 18 U.S.C. 371 and and eleven 21, 2001, state authorities removed Jones’ counts substantive violations (whom nine-year-old daughter we refer to alleging particular each transmission via “VI”) eleven-year-old and her niece telephone of the name VI V2 and/or (“V2”), from the Jones The household. entice, encourage, with intent offer and intercepted FBI a call soon in which after trial, illegal activity. solicit sexual Before Jones advised authori- Giordano state Giordano moved to dismiss the indictment girls. falsely ties had removed the Jones grounds, on including various two of the told Giordano that a driver who had taken grounds he raises here. The district court Jones, to see VI V2 Giordano was decision, rejected motion in a published his demanding not to tell the authorities. $200 Giordano, F.Supp.2d United States placed envelope Giordano this in an sum (D.Conn.2002) (“Giordano I”). Gior the mailbox outside his house. The FBI Nevas, Judge dano also moved to whom shortly arrested Jones after she retrieved assigned, disqualify the case was himself money. ruling on a pending from motion to dismiss FBI, At the behest of the Jones then wiretap ground evidence on falsely called Giordano and told him the Judge granted Nevas had earlier the Title demanding payment. driver was additional orders, validity III of which Giordano agreed Giordano and Jones to meet in a challenged. Judge now Nevas denied this parking July commuter lot on where sought motion for recusal. Giordano then give her On that a writ of mandamus in seeking this Court $500. date, given after Giordano had mon- Judge Jones to overturn Nevas’ denial of the ey lot, motion; parking agents at the approached petition recusal was denied [VI]?”, unpublished order of this Court on Decem “What about which Jones under- Giordano, VI, 2002.1 In re request ber See No. stood as a eight then (“Giordano 3, 2002) old, 02-3095 Cir. June years perform oral sex him. Jones III”). no, testified that she said but at a subse- quent days visit a few she brought later VI 16, 2003, January jury grand On and instructed her to pe- touch Giordano’s (“the a superseding returned indictment ejaculated; until nis hap- while this indictment”) adding four additional counts pened, V2 and other children in Jones’ of substantive violations of each area, care were in the law waiting office alleging specified phone count another call separated aby closed days door. Several in which the V2 names of VI and/or thereafter, V2, both brought Jones VI and for purposes transmitted sexual abuse. old, office, years who was then ten to the performed where Jones oral sex on Gior- 3. The trial girls’ presence. dano During before a Giordano was tried visit, performed next oral VI sex on Gior- all, March 12 to March 2003. In some dano. At the episode, conclusion fifty-three testified. heart witnesses testified, her, Jones Giordano warned government’s case was the testimo- say “Make sure she don’t no- nothing to Jones, V2, ny intercept- VI and and the paid one.” for all Jones of these phone ed calls. Jones testified she activities. met Giordano well before his 1995 election mayor’s office, to the when Giordano was a Jones claimed that episodes similar private lawyer practice. From the time money sex began oral to occur with *6 met him she first until the time of her regularity, usually at Giordano’s law office frequently arrest in she had sex with occasionally at but Jones’ Giordano’s in exchange money, Giordano which apartment home or an a belonging to to support she used her addiction to crack every friend of In Giordano’s. almost cocaine. She met him as often as two or case, appointments arranged by were week, usually three times a at his law telephone. holiday On a school office, arranged and sometimes for other 2000-2001, winter of the date of which women come her. to Jones testified recall, brought Jones could not and she VI that in the summer of while he mayor’s Hall, City to the at en- V2 office mayor Waterbury, Giordano asked her tering through the back door. On bring “young girls” to to perform sexual occasion, directed VI and to she both V2 In request, services. to response this perform oral sex on tes- Giordano. Jones brought girls Jones several between tified that her in “calm Giordano told a sixteen, ages including of fourteen and voice” at the conclusion to visit niece, perform sex oral on Giordano. anyone “make kids tell [or] sure the don’t trouble, get jail.... I’ll in I’ll So I go
Jones testified that November they anything made sure never on an when said occasion Jones had VI, V2, brought anybody.” girls directly her He also daughter her niece told nephew they “get and son with her to would in trouble” and Giordano’s office, elliptically go jail they law Giordano asked her if anyone Jones would told petition challenge sought 1. The We mandamus also review case. address Giordano's later, seeking of Giordano's broader to the of this recusal motion denial second motion Judge disqualification aspects separate summary today. Nevas' from all order filed know, too, you you’re supposed to maintained that it like Jones about abuse.2 practice explained consistent to warn tell.” also that she was was Giordano’s She silent: girls her and the to remain I afraid didn’t know what “[b]ecause afraid, mayor was and I was because he Q. repeat [warning] at And did he money and I was afraid he could have had time? other family my someone hurt and I was afraid Yeah, it every happened. A. time after everybody.” he own V2 testified girls I made never And sure it physically hurt her and that also abuse I was anything said because scared. [she] “hurt inside” [her] “[be]cause jail. I to go didn’t want think would make do [her] wouldn’t he Jones, According the abuse occurred something that” like and because she In City Hall two or three more times. think aunt do some- “wouldn’t [her] occasions, addition, on two or three other like that.” thing occupied by other law office was Jones, used people, Giordano VI Gior- VI, trial, was ten at the time of the who city perform official car for VI dano’s told her that testified Jones oral sex. mayor was the and she understood that a at trial via closed- VI and V2 testified city” mayor’s “[p]rotect role was to circuit from another room television us, over like VI did not “[w]atch[ ] God.” attorney de- government which abuse, told no-one about it like but present. Their fense counsel were testi- she was scared Giordano. mony substantially corroborated Jones’ particular, get put she believed she “would they performed, to the nature of acts jail” people if she told other because she acts, places they performed “thought power.” thought had She also they in- warnings received each her mother would beat her. She did not stance from Jones and Giordano. remember Giordano had told her whether they The victims also testified that anybody or not she should tell whether hurt and disliked the abuse but did not they about what did. anyone fear what tell about out of *7 also government The introduced of V2, to Giordano could do them. who was phone wiretapped the 151 conversations trial, at the time of twelve the testified Jones, including between Giordano re- that she the learned Giordano was cordings corresponding particular the mayor from after she first met him. VI phone alleged in the conversations indict- Mayor rule “thought people, She the could these ment. Some of calls corroborated like be their boss.”3 She believed Giorda- testimony Jones’ that Giordano sometimes my hurt family no “would have someone or requested pres- trouble,” explicitly girls the be get that either I would in vehemently often, rejected ent and that he pretty threaten me offers Jones “would everytime. that, say 16-year-old like And he to have Jones’ come would niece in- that, turn, everybody "thought Jones in she boss testified further around” and girls anyone made sure that did not tell charge everything.” in She he was testi- by watching about the abuse over them and anyone "[b]ecause fied that she did not tell giving a as if them certain look she government attorney was The [she] afraid.” going "give beating.” them through questions line took her sec- testimony ond time because her initial "thought 3. V2 had earlier that she testified only partly audible in the courtroom. everybody over that he could rule and that he government girls’ adduced oral in expert eeiving presence stead.4 The sex on a occasions; all of the calls were on handful of evidence that made he had so done phones were connected to the Public leaving open office door while Jones Network, ca- Switching Telephone performed which is oral sex on him and or V2 VI pable signals be- sat in transmitting phone the sunroom. On the second such occasion, showed that he right” tween states. evidence “didn’t feel and closed the actual calls counts four girls described door. Giordano claimed that the indictment, through nine which were had never come to his law after the office placed from and to Giordano’s Nextel cel- wiretapping began February phone, necessarily lular would have been and that none of intercepted calls in through switching routed center which he asked for one or the other of Plains, White The signals present New York. them to be actually resulted coming constituted calls described in counts their with Jones to meet him. He through eighteen eleven of the indictment denied his mention of child in either originated intercepted from or phone were received on calls Cingular phone and not purpose cellular them soliciting for sexual con- tact; instead, testified, have left State of Connecticut. “I he had ask[ed] them to be she there and volunteered them Giordano testified in his own defense. there purposes being be for the of them He be- paying admitted Jones for sex in the sun room at the time when she was ginning point prior February some ” .... performing oral sex on me having 1993 and to “occasional” sexual con- tact with ar- her that time until his acquittal Giordano made motions for un- rest, having any but denied ever sexual der Federal Rule of Criminal Procedure 29 contact kind government’s with either VI or at the close of V2 ease 16-year-old trial, According Jones’ niece. chief and at the close both which Giordano, bring Jones would sometimes were denied. The convicted Giordano including every various children VI and on count V2 with of the indictment one save office, her counts, to the law but would leave them of on which it returned trial, in a again sunroom several rooms removed from no verdict.5 After office, per- acquittal counts, Giordano’s where she would moved for all renewing rejected by form oral sex behind a arguments previously closed door. Gior- “reluctantly dano agreed” claimed district court when denied Giordano’s suggestion might enjoy pre-trial Jones’ that he re- motion to dismiss the indictment. putative money 4. The also calls contained evidence of con- demand for that Jones fabricated, guilt, as sciousness of well evidence that had Giordano told her: *8 girls Giordano was re- concerned the give days you money, more [I]f him five port placed by the abuse. the call Jones gonna say money, later he’s he needs more 21, instigation July the of the FBI on in which what, you gonna know I'm P and *kin' falsely she told Giordano that her driver was doing keep it. one do sh*t. No seen me demanding money, more warned Jones Gior- unless, shut, unless, you Period. And if if 16-year-old dano that she believed her niece shut, you keep your every- mouth then had "r[u]n her mouth” to Jones' mother con- gonna thing's fine.... what So are the kids cerning girls. replied: the Giordano "How I'll, you say, deny it. ... Let tell I’ll me sh*t, [your could mother] niece] she tell [the somethin', it, you they deny deny it and I girls with us never when the were with gonna ain't believe sh*t. V2, thought us.” said: About Giordano "I solid, man, you say subsequently said she was she wouldn't on The count was dismissed conversation, discussing government’s sh*t.” Later in the the motion. 38 title, this not more imprisoned under court denied the motion
The district (1) years, or than 5 both. acquittal, holding, part, relevant that Giorda there was sufficient evidence § 18 371 of Title 18 Section U.S.C. “under of law” within the no acted color to the conspire it a crime to commit makes (2) 242, phone § the calls he meaning of § 2425. noted described in As offense made and received from Jones satisfied above, through nine eleven counts four 2425, § jurisdictional requirements alleged through eighteen of indictment (3) prosecute use 2425 specified that on fourteen dates between activity Congress’s power did not exceed 12, 2001, February July 23 Giordano Clause. United the Commerce telephone used and Jones a cellular Giordano, 349, F.Supp.2d States v. 324 telephone, respectively, to initiate landline (“Giordano II”). (D.Conn.2003) 352-53 knowing name of transmission 2003, 13, district court sen On June with intent to either VI or V2 both 444 principally tenced months’ solicit, entice, encourage, and them to offer 242 imprisonment each of two engage activity. in sexual The third count counts; conspiracy months on the 60 alleged of the indictment that Giordano count; four and 60 months on each the statute.6 The evi- conspired violate counts, teen 2425 all to be served con all of dence adduced at trial showed that 444 currently, for a total of months of these calls were made while both Giordano timely appeal imprisonment. This fol were and Jones within State of Con- lowed. § 2425 argues necticut. Giordano phone
must be understood not
reach
person
given
one
in a
calls from
state
DISCUSSION
person
another
the same state —what
I.
calls”—and that
if the
terms “intrastate
calls,
to reach
statute
understood
such
A.
Congress’s power under the Com-
exceeds
2425
Section
of Title 18
the Unit
Clause,
3,
I, §
Art.
cl.
merce
Const.
U.S.
provides,
part,
ed
States Code
relevant
as that
has been defined
States,
v.
Supreme Court in Jones United
[wjhoever,
any
using
facility
mail or
146 L.Ed.2d
U.S.
S.Ct.
(2000),
Morrison,
foreign
or means of interstate or
com-
United States
merce,
initiates
knowingly
the trans- U.S.
S.Ct.
L.Ed.2d 658
address,
(2000),
name,
telephone
Lopez,
mission of
and United States
number,
number,
security
social
or elec-
S.Ct.
39 78j), § challenges meaning grounds, to the and constitu- U.S.C. vacated on other tionality propriety 1015, of 3325, of the statute 478 U.S. 106 S.Ct. 92 L.Ed.2d (1986).7 United States v. instructions. 731 see why We no reason (2d 383, Cir.2004); George, 386 F.3d 397 result should be different here. We also Holland, 80, v. United States 381 F.3d 84 § conclude that 2425’s prohibition on the (2d Cir.2004). are first These issues of of transmission the name of a minor “using in this impression Circuit and have any ... facility or of means interstate ... been addressed other circuit. specified commerce” for the purposes in- cludes the of intrastate use such a facility statutory of We address issue Perez, or means.8 In we a addressed re- interpretation phrase “any first. The facil question lated that has divided the circuit ity of ... or means interstate commerce” courts: whether intrastate phone call § purposes is for of 2425 or not defined was sufficient satisfy jurisdictional of chapter part. which it is a See element of prior a of version the murder- §§ generally 18 U.S.C. 2421-2426. Re statute, 1958(a), § for-hire 18 however, U.S.C. which Perez, cently, in United States v. Cir.2005) prohibited of 302, (2d “facility “use[]” inter- 414 F.3d 304 cu (per state ... riam), specified commerce” for pur- we reached the con unremarkable poses.9 Joining the circuits that had held telephone clusion that the national network the term “facility in “facility is a of ... interstate ... interstate commerce” commerce” synonymous for of with the purposes the federal term murder-for-hire statute, 1958(b)(2). “facility ... § interstate 18 U.S.C. See also commerce” of Venture, statute, definition of Freschi v. section the same Grand Coal 767 F.2d 18 Cir.) 1958(b)(2), § U.S.C. (holding without dis concluded that in- a telephone cussion that an trastate use of the telephone network is constituted “instrumentality of use of a facility interstate commerce” interstate commerce 10(b), § purposes Exchange Perez, Act meaning within the of the statute.10 Plains, 7. These decisions are consistent with those New York. Because Giordano does not See, e.g., other circuits. United Co distinguish States v. between various counts of the rum, (8th Cir.2004) (hold 362 F.3d challenge indictment use his ing "aggregate telephonic system” that the is case, § 2425 in his we understand him to "instrument interstate ... commerce” argument placed raise the that calls broader 844(e)); meaning § within the of 18 U.S.C. persons between located in the same state are Gilbert, v. United States 181 F.3d 158-59 signals "intrastate calls” no where the matter Cir.1999) (1st (same); United States Weath may fortuitously involved be routed. ers, (6th Cir.1999) (noting telephone "facility network is 1958(a) recently 9. Section amended to meaning interstate commerce” within the proscribe "facility use of a interstate 1958). commerce,” removing ambiguity that cre- split ated the circuit addressed in See Perez. position 8. Giordano does not take clear Intelligence Reform and Terrorism Preven- phone placed a telephone whether call from 108-458, tion Act of Pub.L. No. given telephone located in a state to another 1958(a) (striking 118 Stat. within the same state is an "interstate” or of”); Perez, "facility "facility inserting in” and "intrastate” call constitutive radio at 305 n. signals during and electric cross state lines phone the course of the call. While Giordano contrary dis overruled decisions of argues passing is Perez that "there insufficient including trict courts in this circuit United evidence of interstate nexus” as to all (S.D.N.Y. Paredes, indictment, F.Supp. phone calls listed in the States calls, 1996), plainly not true of the Nextel a case on which Giordano relies heavi consti- Paredes, signals through ly tutive which traveled White briefs. court district *10 40 See our reasoning guide interpretation. avoidance to (endorsing
41 Jones, § intrastate 1740. ment of 2425 is satisfied Court considered telephone capable transmitting use of a “property whether the term in ... used communications states. between any activity affecting or foreign interstate employed commerce” as ar federal B. statute, 844(i), § son 18 U.S.C. reached a turn now chal We to Giordano’s private dwelling. 858, 529 at U.S. 120 constitutionality lenge § 2425 as 1904. In reliance on Lopez S.Ct. and the interpreted we have it. In United States principle ambiguous that an statute should 549, 1624, 514 Lopez, U.S. 115 S.Ct. 131 be read to avoid doubtful constitutional (1995), Supreme 626 L.Ed.2d Court questions, the Court held that it did not. categories activity identified three language Id. As the of the statute may regulate Congress under the Com clear, Court’s reliance on Lopez . make. merce Clause: Lopez Jones too was a “category three” First, Congress may use of regulate the case, concerned with Congress’s power to the channels interstate commerce. regulate having activities ef substantial Second, is Congress empowered regu- fect on interstate commerce. protect late and the instrumentalities of true, It certainly is as Giordano commerce, argues, persons interstate or or impose these cases limits commerce, on Con- things in interstate even gress’s power to create federal criminal though may the threat come only on prohibitions traditionally Finally, Congress’ state-regulat- intrastate activities. spheres ed authority power activity. commerce includes noneconomic See Raich, regulate generally Gonzales 545 having those activities sub- U.S. ---, commerce, 2195, 2209-10, stantial relation to 125 S.Ct. 162 interstate ie., (2005); substantially those activities that af- L.Ed.2d 1 King, United States v. (2d Cir.2002). fect interstate commerce. 276 111 F.3d But his attempt bring this line of cases to bear (citations 558-59, Id. at S.Ct. § on 2425 overlooks the fact that omitted). The in Lopez statute at issue which explicitly proscribes “us[e of] fell category. into third The Court any facility mail or means interstate there held that the Gun-Free School ends, ... commerce” to specified clearly Act, § 922(q), Zones 18 U.S.C. exceeded type founded on the second of Commerce Congress’s authority because it criminal is, power categorized Lopez, Clause ized non-economic activity that did not regulate in- protect the “substantially affect” interstate commerce. strumentalities 560-65, 115 interstate commerce Id. at Similarly, S.Ct. 1624. Morrison, though may “even only the threat come provision which concerned a from intrastate Lopez, activities.” Against pro the Violence Act Women U.S. It gender-motivated vided civil remedies for S.Ct. is well- violence, established that when Congress legislates U.S.C. Court held Congress not, pursuant under this branch of its Commerce the third noneconomic, Lopez category, “regulate power, may regulate purely vi Clause even solely olent criminal conduct use of based on that intrastate those instrumentalities. Gil, conduct’s aggregate effect interstate United States v. Cir.2002) cases).13
commerce.” 529 U.S. at (collecting Application 120 S.Ct. also, Gilbert, (re- call; e.g., 844(e) phone holding See at 158 for intrastate jecting challenge prosecution “Lopez apply does not because a tele- *12 in Count two of the indictment contained §of 2425 to the conduct involved this charges to presents no constitutional same as V2. case therefore difficulties.14 argues that the evidence
Giordano color of was insufficient as to “under II. law” of counts. We dis element these A. meaning agree of the statuto ... more ry “under color of law” is term challenges also his conviction maintains, expansive and than Giordano violating of counts of 18 U.S.C. two trial, viewed as it evidence adduced (1) it criminal to act That statute “makfes] light most to the must be favorable (3) (2) ‘willfully’ of law and under color government, than was more sufficient rights by of deprive person protected of fact to find the allow rational trier or laws Constitution of United beyond element satisfied a reasonable Lanier, States v. States.”15 United 520 Singh, doubt. See v. United States 390 259, 264, 1219, 117 137 L.Ed.2d U.S. S.Ct. (2d Cir.2004). 168, 187 F.3d (1997). The of indict- 432 first count charged that November ment between Supreme broadly “The Court has 2001, Giordano, and act- July
2000
“while
requirement,
the color of
interpreted
law
of
ing under color
the laws of
State of
concluding
power, pos
of
Connecticut,”
‘[m]isuse
deprived VI of her Four-
by virtue
and
sessed
of state law
made
right “to be free from
teenth Amendment
wrongdoer
possible only because
is
aggravated sexual abuse and sexual abuse
[VI],
authority
law,
clothed with the
of state
is
by coercing
...
forcing
and
who had
”16
of
action taken under color
state law.’
age
years,
engage
not attained the
of
Walsh,
37,
United States v.
genital
fellatio and
contact with [Giorda-
Classic,
Cir.1999)
United States
genitals
(quoting
by touching
no]
[Vi’s]
breasts,
injury
299, 326,
resulting
bodily
85 L.Ed.
VI.”
U.S.
61 S.Ct.
instrumentality
phone
provides,
part,
is
an
of interstate com
The statute
in relevant
merce and this alone is
sufficient basis for
law, statute,
[wjhoever,
any
under
of
color
commerce”);
jurisdiction based on interstate
ordinance,
custom,
regulation,
willfully
or
Indus.,
Kerbs Fall River
subjects any person
any
...
to the
State
Cir.1974) ("[A]s
(10th
long as the instrumen
any
deprivation
rights, privileges,
or im-
tality
integral part
an
itself is an
interstate
protected by
Congress
power,
secured
Con-
system,
necessary
munities
or
has
commerce,
protection
States,
for the
of interstate
stitution ... of the United
...
if
regula
include
activities within
intrastate
its
aggravated
such acts include ...
sexual
control.”),
tory
abrogated
grounds,
on other
abuse,
aggravated
attempt
or
an
commit
Denver,
Central Bank
N.A. v. First Interstate
abuse,
sexual
shall be fined under this
Denver, N.A., 511
Bank
U.S.
114 S.Ct.
title,
imprisoned
years
or
or
for
term
(1994).
the evidence counts and B. affirm the denial of his district court’s acquittal. motions for challenges also the suffi ciency of the third evidence as ele offense, § of a arguing
ment 242 that VI III. protected right and had federally V2 no argument aggravated be free from sexual Giordano renews his abuse juris that the court satisfy such abuse did not district should recused requirements statutory ruling admissibility dictional of federal itself from on the 48 pur specified unlawful telephone for him because against evidence wiretap ap Title III authorized the of the application
it had earlier statute poses and wiretap. As plications supervised Congress’s not activity does exceed such above, peti denied previously noted Clause, U.S. power under Commerce seeking to of mandamus tion for a writ (2) 3; 8, the evidence §I cl. art. Const. rejection of his court’s overturn the district convic Giordano’s to sustain was sufficient III, at slip op. motion. Giordano recusal color rights violations under tion for civil ruling, but to our former 1. We adhere (3) 242; under 18 U.S.C. of law explain reasoning. our Section write to not abuse its discretion court did district 455(a) requires Title 28 of the U.S.Code light In of these failing to recuse itself. “in magistrate judge of a or the recusal arguments ad and because the holdings im proceeding [or her] in which his merit, lack summary order dressed reasonably might questioned.” be partiality judgment of conviction. we affirm recu of a motion for review the denial We of discre under that statute abuse sal Diaz, 52, v. 176 F.3d tion. United States JACOBS, Judge, Circuit DENNIS Cir.1999). (2d Liteky v. United dissenting part. concurring part 1147,
States,
540, 114
S.Ct.
510 U.S.
much of
from so
respectfully
I
dissent
(1994),
Supreme
Court
L.Ed.2d 474
majority opinion as affirms Giordano’s
“judicial rulings alone almost
held that
rights
for a bias or
civil
offenses under
never constitute
valid basis
conviction for
555,
114 S.Ct.
partiality motion.” Id.
pursuant
of law
18 U.S.C.
color
un
wiretap
of a
1147. The authorization
was, there is no
as the conduct
Despicable
degree
Title III does not “evidence the
der
that it was done under
sufficient evidence
antagonism required”
of favoritism
points demonstrate
color of law. Several
455(a)
recusal under
necessitate
insufficiency.
admissibility
resulting
ruling on the
(1)
overlays
deprivation
of law
Color
join both
evidence. See id. We therefore
depriva
right
of the circuits that have considered
when the
constitutional
rejected
it. See United
argument
power,
achieved
“[m]isuse
tion is
Lewis,
03-3131,
Fed.
States
No.
made
by virtue of state law and
possessed
455, 458-59, 2005 WL
*3
Appx.
wrongdoer is
only because the
possible
19, 2005);
July
States v.
Cir.
United
authority
of state law.”
clothed with
(8th
Jones,
Cir.1986);
cf.
Classic, 313 U.S.
States v.
United
de
v. Autoridad de
Camacho
Telefonos
(1941)
325-26,
85 L.Ed.
S.Ct.
(1st
Rico,
490-91
Puerto
(emphasis supplied); see also Screws
Cir.1989)
author
(noting
judge
who
States,
U.S.
65 S.Ct.
United
required
to recuse
wiretaps
ized
(1944);
States v.
CONCLUSION
beyond rea
prove
government’s burden
that,
the accused’s
doubt
but for
sonable
reasons,
foregoing
For the
we hold that
(1)
authority,
wrong
position municipal
2425 reaches intrastate use
18 U.S.C.
possi powers
that was
would not have been
as mayor,
majority
done
opinion ad-
(in
ble.
snippets
duces
of transcript
footnotes
21)
-
20 and
that
at
evidence
best the vic-
requirement
shapes
That but-for
(that
subjective
tims’
they
reactions
were
case
involving physical
law
abuse into with
forth).
impressed, and so
Ante at 44 n.19
a few
repeated
police
scenarios:
officer
However,
& 45-46 n.20.
focus on a vic-
arrest;
using
during
brutal force
an
an off-
subjective
tim’s
reaction “misses the es-
officer,
control,
duty
inflicting
who is out
inquiry.” Pitchell,
sence
color
law
(more
punishment;
commonly) prison
13 F.3d at
Even assuming
such
that
guard abusing an inmate
within
con
subjective testimony
suffice,
gov-
See,
Screws,
prison
e.g.,
fínes of the
walls.
ernment did not ask the
they
victims if
U.S.
S.Ct.
rections officer acted under color of law mayor of Waterbury was not the but-for stepped genitals). he on inmate’s indispensable means of the child position power, But for the victim abuse. reached, could not or be made be to sub (cid:127) by Giordano’s access was arranged mit, kept or be silent. Jones, prostitute had patronized he cases, paradigm these but-for well before was elected. cause of the apparent, abuse is and a (cid:127) provided The children to him for special needs no instruction to understand an agreed-upon consideration that was possible by the abuse was made paid. Jones testified as her incen- See, position. e.g., abuser’s Pitchell v. Cal- money tives: she wanted to feed her lan, (2d Cir.1994) (“[Lia- crack habit. official], bility be may found where [an (cid:127) mayor’s The money good was as off-duty, albeit nonetheless invokes the else’s; anyone and there is no evi- office].”). apparent real or [his dence Jones would have refused trial, however, In Giordano’s the district developed the transaction or any addi- “only” court omitted the crucial word scruple tional if her customer had not requires, charged: Classic and thus “Mis- mayor. been possible conduct made public (cid:127) (by Most the abuse of the children authority official is clothed far) took place private Giordano’s law is action under of law.” The color. office, law at Jones’ home or Giorda- inadequacy of this instruction is not raised no’s, apartment or in an belonging to a considered; appeal, need not be friend of Giordano. Abuse occurred at preserved argument but Giordano has City in a government Hall or vehicle the evidence was insufficient under no more than a handful times. the “color of law” standard set forth Supreme Court. And I conclude no only available is that inference juror reasonable could find properly sole cause of the- abuse was that a sexual *19 this defendant acted under color of law. (and predator had access to sufficient cash
(2) facilitator) willing In order to a purchase demonstrate Jones to the sexual and the children Analytically, succumbed to Giordano’s services of children. there is them), Monsky supports no holding threat but supposed
no distinction between the
majority opinion.
in which the
any
in this case
instance
prostitute
a
confi-
customer of
demands
(4)
Tarpley, on
More instructive is
dentiality except
the customer is a
—
Tarpley,
majority
relies.
a
which
as it
mayor.
happened
All would have
did
to
deputy sheriff was found
cuckolded
if
an architect.
happen Giordano had been
(together
color
after he
acted under
of law
deputy)
another
lured his wife’s lover
with
city
of a small
mayor
The fact
cosh,
house,
put
a
a
to a
beat his rival with
police
a
not mean
commands
force does
mouth,
him
pistol into
drove
out
service
his
every illegal, unenforceable contract
car,
police
in a
and warned him
of town
into
possible
he enters
is made
because
cop
get away
a
can
it. 945 F.2d
with
ie.,
If
color of law.
a
his
under
office—
affirmed
Fifth
Tarp-
at 807. The
Circuit
trifecta,
may
his
be
mayor hits
bookie
§§ 241
ley’s conviction under 18 U.S.C.
unhappy
may ap-
paying,
most
about
and 242. Id.
mayor’s
get
to
him
preciate
power
Tarpley
persuasive impact
has
on Gior-
arrested;
warning
keep quiet
about
chiefly
fact scenar-
dano’s case
because the
implicit
illegal
transaction would be
provoke many
so
Giorda-
ios
distinctions.
recited;
the fact
whether or not
critical use of
no’s conduct made no
his
Still, it
office would be evident.
cannot
paid
price
agreed
office. Giordano
an
seriously
argued
pay-
be
that a bookie’s
children;
made no claim of
abuse
he
under those circumstances would be
ment
power
authority,
to do so
on official
based
extorted under color of law. The situation
apparent or actual. Giordano made no
Giordano’s,
indistinguishable
as
from
power
threat to use official
to harm Jones
argu-
all
government
but conceded at oral
children;
warning
or the
about trouble
ment.
jail applied
infinitely greater
(3)
every
case
This
differs from
other
(no
to himself
assume
force
one could
upon
majority re
template case
which the
precipitate
chiefly
prosecution
lies,
power
in that
his
Giordano did not use
himself).
would ensnare
Giordano acted
submit,
Walsh,
the victims
to cause
as
alone,
person
without
other
enlisting
41-43;
at
oppor
194 F.3d
or to create the
law;
wielding power
so no one could
alone
tunity
be
with the victims and
exercising power
think he was
backed
them,
City Opa-
as in
coerce
Griffin
force.
government
employed
no
(11th
Locka,
1295, 1306
Cir.2001);
(such
trappings of office to inflict the harm
special authority
or to assert
for the mis
pistol
car
squad
trip
as the service
and the
retaliatory action,
conduct or
undertake
in Tarpley). And Giordano abused the
Tarpley,
United States
surreptitiously,
spinning
children
without
(5th Cir.1991)
J.).
(Higginbotham,
aura of official
conduct.
The facts
are inverse to
ease
majority
Monsky
v. Mora-
cites
in Tarpley
facts that
were held sufficient
(2d Cir.1997), an
ghan,
cident.
Id. at 809. To offset these fact distinc-
tions, heavily majority opinion leans impression mayoral of- ambient
fice; doing, majority but so opinion
vastly grandeur pomp overstates JACKSON, Ronald Petitioner- mayor fifth-larg- surrounds Appellant, city
est in Connecticut. (5) jail danger Giordano raised the if prostitution the children dis- were UNIT, ALBANY APPEAL BUREAU closed; nothing but there the record Defendant-Appellee, from which to infer that such a statement Moreover, compulsion. acted as the threat Attorney General, Respondent-Appellee. of prison was no less than factual. A drug-addicted procurer of children 05-2766-pr. Docket No. jail. belongs acknowledged
course She Appeals, United States Court of much trial: Circuit. Second Q. Mayor say anything you Did the happened? after this Nov. Submitted: Yep. A. Decided: Feb. Q. you? did he tell What He me A. told make sure the kids anyone tell I’ll in trou- get
don’t
ble, jail. I’ll go to
[*] [*] [*] [*] [*]
Q. you you going go He told
jail? Yeah, go jail.
A. I’ll he told me I’m
there now. a warning;
Defendant’s statement position
was in no to issue as a threat.
And that admonition is characteristic