## Facts

- Federal investigators targeted Philip A. Giordano, then mayor of Waterbury, Connecticut, in a political-corruption investigation.
- A district judge authorized and periodically renewed Title III wiretaps on Giordano’s city-issued cell phones and related lines between February and July 2001.
- Intercepted calls revealed Giordano’s relationship with a prostitute and plans for her to bring minor girls to him for sexual activity.
- The resulting charges stemmed from Giordano’s repeated sexual abuse of the prostitute’s minor daughter and niece.
- The abuse occurred in official settings, including the mayor’s office at city hall and the mayor’s official vehicle.
- At trial, the child victims testified they knew Giordano was the mayor and feared consequences if they disclosed the abuse.
- The victims testified Giordano warned them they would “get in trouble” and that the girls’ guardian would “go to jail” if they reported the conduct.
- A jury convicted Giordano of civil-rights violations under color of law (18 U.S.C. § 242) and of conspiracy and substantive offenses for using a telephone to entice a minor to engage in sexual activity (18 U.S.C. §§ 371, 2425); he received a 444-month sentence.

## Issues

1. Whether 18 U.S.C. § 2425 applies to purely intrastate telephone calls and, if so, whether that application exceeds Congress’s Commerce Clause power.
2. Whether the evidence was sufficient for a rational jury to find Giordano acted “under color of law” under 18 U.S.C. § 242.
3. Whether the district judge abused discretion by declining to recuse from ruling on admissibility of wiretap evidence the judge had previously authorized under Title III.

## Decision

- The Second Circuit affirmed the convictions on the issues addressed in the published opinion.
- The court held § 2425 covers intrastate telephone use because a telephone is a “facility of interstate commerce,” and Congress may regulate instrumentalities of interstate commerce even when the misuse is intrastate.
- The court held the evidence permitted a finding that Giordano acted under color of law, based on use of official locations and exploitation of authority that contributed to the victims’ fear and silence.
- The court held the judge’s prior ex parte Title III authorization did not require recusal and the refusal to recuse was not an abuse of discretion.

## Legal Principles

- A statute prohibiting use of a “facility of interstate commerce” may reach intrastate use of that facility when the facility itself is an instrumentality of interstate commerce (including telephones).
- Congress may regulate instrumentalities of interstate commerce under the Commerce Clause even when the regulated conduct is wholly intrastate.
- For 18 U.S.C. § 242, a public official acts “under color of law” when misconduct is made possible by misuse of official authority or the trappings of office, including when victims’ compliance or silence is tied to the official’s perceived power.
- A judge’s prior ex parte approval of a Title III wiretap, standing alone, ordinarily does not require recusal from later proceedings involving the resulting evidence under 28 U.S.C. § 455.

## Conclusion

The court affirmed Giordano’s convictions, concluding that § 2425 validly reaches intrastate telephone calls, the record supported that he abused minors under color of law by exploiting the authority and incidents of his office, and the trial judge’s prior wiretap authorization did not mandate recusal from later evidentiary rulings.


United States v. Giordano, 442 F.3d 30 (2d Cir. 2006)