Subject: [NEXTEL-1] The use of Nextel phones as a "facility or means of interstate commerce" within the meaning of 18 U.S.C. 2425

From: [email-masked]
Date: Wed, 04 Aug 2004 08:23:12 -0400

The use Of Nextel phones as a "facility or means of interstate commerce"
within the meaning of 18 U.S.C. 2425

Background-

http://www.davidicke.net/newsroom/america/conn/080502e.html

http://www.rep-am.com/Giordano/new/yuck.html

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Response To Giordano Appeal: Part I
The Government's Response To Phil Giodano's Appeal
03-1394-cr To be Argued By: PETER S. JONGBLOED
FOR THE SECOND CIRCUIT Docket No. 03-1394-cr UNITED STATES OF AMERICA,
Appellee, -vs- PHILIP A. GIORDANO Defendant-Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
CONNECTICUT
BRIEF FOR THE UNITED STATES OF AMERICA

JOHN H. DURHAM Deputy United States Attorney District of Connecticut
PETER S. JONGBLOED JOHN A. MARRELLA WILLIAM J. NARDINI
Assistant United States Attorneys

STATEMENT OF JURISDICTION The district court (Alan H. Nevas, J.) had
subject matter jurisdiction over this federal criminal case under 18
U.S.C. 3231. The defendant filed a timely notice of appeal pursuant to
Fed. R. App. P. 4(b), and this Court has appellate jurisdiction over the

defendant's challenge to his conviction and sentence pursuant to 28
U.S.C. 1291 and 18 U.S.C. 3742(a).

STATEMENT OF ISSUES PRESENTED FOR REVIEW 1. Did the district court
correctly conclude that the defendant's use of telephones constituted
use of a "facility or means of interstate commerce" within the meaning
of 18 U.S.C. 2425? 2. Did the district court abuse its discretion in
denying the defendant's motion to suppress the wiretap evidence? 3. Was
there sufficient evidence that the defendant acted under color of law in

abusing the minor girls, and did the district court correctly conclude
that the girls had a constitutional right to be free of aggravated
sexual abuse? 4. Did the district court abuse its discretion in its
evidentiary rulings, particularly in finding that the defendant had
opened the door to cross-examination on a number of topics? 5. Did the
district court abuse its discretion in denying the defendant's motion to

suppress oral statements made between July 23 and 26, 2001, where the
defendant has not challenged the district court's findings that he was
not under arrest and made the statements voluntarily? 6. Did the
district court properly decline to require that the Government interview

the child witnesses pre-trial in the presence of defense counsel and a
courtappointed monitor, and properly allow the child victims to testify
by closed circuit television?
7. Did the district court abuse its discretion in precluding the
defendant from cross-examining the child victims about their prior
sexual behavior? 8. Did the district court abuse its discretion in
computing the defendant's offense level under the Sentencing Guidelines,

and is the court's discretionary decision not to further depart
downwardly unreviewable on appeal? 9. Did the district court abuse its
discretion in declining to recuse itself from the case?

FOR THE SECOND CIRCUIT Docket No. 03-1394-cr UNITED STATES OF AMERICA,
Appellee, -vs- PHILIP A. GIORDANO, Defendant-Appellant.
  ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
CONNECTICUT BRIEF FOR THE UNITED STATES OF
AMERICA Philip A. Giordano, a three-term Mayor of Waterbury, was
convicted by a jury of numerous federal crimes arising from his repeated

sexual abuse of two young girls, ages eight and ten. This case arose out

of a public corruption investigation, in which the Government obtained
court authorization to wiretap the defendant's phones. During the course

of the wiretap, federal agents intercepted calls in which the defendant
arranged for a Waterbury prostitute and drug addict, Guitana Jones, to
bring her niece and daughter to various locations, including the Mayor's

Office, so that the defendant could sexually abuse them.

2 The defendant raises a host of challenges to his convictions for
violating the girls' civil rights (18 U.S.C. 242) and for using and
conspiring to use telephones in connection with sexual crimes (18 U.S.C.

2425 and 371). Among other things, he argues (1) that his 2425
convictions are statutorily and constitutionally invalid because the
telephone calls at issue were intrastate; (2) that the district court
abused its discretion in refusing to suppress the wiretap evidence; (3)
that there was insufficient evidence that he acted "under color of law"
in abusing the children, and that the girls did not have a federally
protected right to be free of sexual abuse; (4) that the district court
abused its discretion in its evidentiary rulings, particularly in
finding that the defendant had opened the door to cross-examination on a

number of topics; (5) that the district court abused its discretion in
denying his motion to suppress certain oral statements made to law
enforcement agents during a brief period of cooperation after his crimes

were uncovered; (6) that the district court erred in refusing to require

that the Government interview the child witnesses in the presence of
defense counsel and a court-appointed monitor pre-trial, and in
permitting the children to testify by closed-circuit television; (7)
that the district court abused its discretion in precluding the
defendant from cross-examining the children about their prior sexual
behavior; (8) that the district court abused its discretion in
calculating the Sentencing Guidelines and in declining to downwardly
depart further than it did; and (9) that the district judge abused his
discretion in failing to recuse himself from the case. For the reasons
that follow, this Court should affirm the conviction and sentence in all

respects.
1 References are as follows: JA: Defendant's Joint Appendix SA:
Defendant's Sealed Appendix SPA: Defendant's Special Appendix GA:
Government's Appendix GSA: Government's Sealed Appendix T: Trial
transcript (not reproduced in appendices) The Government's Appendix
includes items such as the notice of appeal and certain rulings from
which the defendant appeals, which should have been included in the
defendant's appendix, see Fed. R. App. P. 9(a)(1) and 30(a)(1), as well
as transcripts of relevant hearings below and the testimony of the
two minor victims, the principal cooperating witness (Guitana Jones),
and the defendant. 3 STATEMENT OF THE CASE On July 26, 2001,
the Government arrested the defendant without a warrant for violations
of 18 U.S.C. 2425 and 371. The defendant was presented before
the United States District Court for the District of Connecticut (Hon.
Alan H. Nevas, J.). JA 34.1 The defendant was initially ordered
detained, and a criminal complaint setting forth the basis for these
charges was filed later that day. After holding a bail hearing, Judge
Nevas issued a written detention order dated August 10, 2001. JA 39. On
September 12, 2001, a federal grand jury in Connecticut
returned an indictment charging the defendant with two counts of civil
rights violations (18 U.S.C. 242), one count of conspiracy to violate
18 U.S.C. 2425 (18 U.S.C. 371), and eleven counts of unlawful
4 use of interstate facilities to transmit information about a minor (18

U.S.C. 2425). A co-defendant, Guitana Jones, was also charged with the
conspiracy and 2425 offenses. The defendant pleaded not guilty to these
charges on September 20, 2001. JA 41. On November 8, 2001, following the

defendant's motion for release pending trial, the district court
conducted a second bail hearing. The district court reaffirmed its order

of pretrial detention, and set forth its reasons in a written ruling on
November 14, 2001. JA 44. The defendant appealed the detention order,
which this Court affirmed by summary order on August 16, 2002. 41 Fed.
Appx. 522. On July 29, 2002, the district court denied the defendant's
motion to dismiss the indictment. JA 49; SPA 1, 260 F. Supp.2d 477. On
September 10, 2002, co-defendant Jones pleaded guilty to Counts 3, 4, 6
and 8 of the indictment, and entered into a written cooperation
agreement with the Government. JA 49. On September 12, 2002, the
district judge denied the defendant's motion to disqualify him from
ruling on the motion to suppress the wiretap evidence because he had
signed the electronic surveillance order. JA 49. On November 14, 2002,
the judge denied the defendant's second, broader motion for
disqualification. JA 50; SPA 28, 2002 WL 32086481.
5 On December 18, 2002, the defendant filed a petition for writ of
mandamus in this Court seeking to overturn the district court's two
decisions denying his motions for recusal. By summary order dated
January 3, 2002, this court denied the petition. GA 35, No. 02-3095. On
January 16, 2003, the grand jury returned an 18- count superseding
indictment which, like the original 14- count indictment, charged the
defendant with the same federal offenses and added four additional
charges under 18 U.S.C. 2425 concerning other intercepted telephone
calls. JA 1-23 (superseding indictment), 51. The defendant renewed his
plea of not guilty on February 6, 2003. JA 52. On February 14,
2003, the district court denied the defendant's motion to suppress
wiretap evidence and his oral statements. JA 54; SPA 8, 259 F. Supp.2d
146. On March 4, 2003, a jury was selected. JA 55. The Government began
presenting evidence on March 12, 2003. JA 57. The
Government called 48 witnesses, concluding its case-in-chief on March
19. The defendant orally made a Rule 29 motion at the close of the
Government's case, which the court denied. GA 23. The defendant
presented 5 witnesses and also testified on his own behalf. On March
24, 2003, the defendant renewed his Rule 29 motion, which the court
denied. JA 58, GA 27. The parties then made their closing arguments
and the court instructed the jury. GA 70-132 (jury charge). At the end
of the day on March 25, the jury returned with its verdict,
6 unanimously finding the defendant guilty of the two civil rights
offenses (Counts 1 and 2), conspiring to use an interstate facility to
transmit information about a minor (Count 3), and using an interstate
facility to transmit information about a minor (Counts 4-9 and 11-18).
JA 59. The jury specifically found that he committed aggravated sexual
abuse in connection with Counts 1 and 3. GA 30. The jury could not reach

a unanimous verdict on Count 10, which involved Jones leaving a voice
mail on the defendant's cellular telephone. GA 31.  Count 10 was later
dismissed on the Government's motion. JA 62. On May 1, 2003, the
defendant filed a motion for judgment of acquittal, which was denied on
June 12, 2003. JA 59, SPA 19. On June 13, 2003, after a sentencing
hearing, the court sentenced the defendant primarily to an aggregate 444

months (37 years) of imprisonment, to be followed by five years of
supervised release, plus a $1,700 special assessment. JA 62, GA 33. On
June 19, 2003, the defendant filed a timely notice of appeal. GA 36. He
is presently serving his sentence.
7 STATEMENT OF FACTS A. The Investigation This prosecution unexpectedly
arose from a political corruption investigation by the Federal
Bureau of Investigation ("FBI") and the Internal Revenue Service
("IRS"), involving Mayor Philip Giordano and others in the city of
Waterbury, Connecticut. Initially, the investigation focused on reports
that Giordano had received cash from a reputed member of the
Genovese La Cosa Nostra family, whose construction firm was awarded
various city contracts during Giordano's mayoralty. As a part of the
investigation, the Government conducted courtauthorized electronic
surveillance from February through August 2001, intercepting more
than 15,000 conversations. Some of these conversations were between the
defendant and various women to whom he dispensed amounts
of cash inconsistent with his modest salary as a public servant. Among
these women was Guitana Jones, a Waterbury prostitute with
whom the defendant had a longstanding sex-for-money relationship. Jones
is the mother of one young girl, born July 9, 1992 ("Victim 1"),
and aunt of another young girl, born September 21, 1990 ("Victim 2"). GA

67, 70; GSA 51-52. During the course of the public corruption
wiretap, the Government intercepted a number of calls in which the
defendant had Jones arrange for him to have sexual liaisons with other
females 16 years or older. But on July 12, 2001, agents reviewed a
series of brief calls that had been intercepted three days earlier, on
July 9, which raised
8 the horrifying possibility that the defendant was also engaging in
sexual conduct with young children. In a series of calls on July 9,
Jones told the defendant that "I have one of the girls with me today,"
and made arrangements to bring her to the defendant that evening, after
his son's T-ball game was over. When asked by the defendant, "Now who
you got?" Jones responded, "Umm, [Victim 1]. Today's her birthday you
know." The defendant said, "It is?" Jones said, "Yeah she turned nine
years old today." The defendant responded, "Wow.  That's cool." He told
Jones "Make sure you're there." Jones said, "I will." JA 303. Calls
placed the following two days, July 10 and 11, showed that Jones had not

in fact brought the girl to the defendant on July 9. JA 308, 313. The
Government promptly placed the defendant under physical surveillance, to

ensure that he did not come into contact with the girls. T 1006, GA
229-30. The Government then arranged for an undercover police officer to

make a pretextual call to the defendant's cell phone in the late
afternoon of July 12. T 1005-06. In a voice mail message, the officer
advised the defendant, "I got your number . . . . You better leave them
f_kin' kids alone. . . .
I know what's up. . . . I'm gonna follow your ass, I'm gonna watch your
ass. You f_k around with them young kids like you been doin',
that's it, I'm goin' straight to the motherf_kin' media." JA 316. The
defendant retrieved the message a few minutes later, while at the park
in Waterbury where he was attending another of his son's T-ball games.
Id. On July 13, the Government submitted a written report to the
district judge who was supervising the wiretap,
9 entitled "Filing Regarding Possible Sex Offenses." SA 758. Later that
day, agents intercepted calls from the defendant to Jones, discussing
the anonymous voice mail: Giordano: Is, is [Victim 2's] dad alive?
Jones: No, [Victim 2] don't say nothin'... Giordano: Huh?  Jones: . . .
they, them kids haven't said anything. They do not say nothing.
Giordano: Well someone said something to someone because this dude knew.

. . . . Giordano: . . . it was about the girls man. Jones: Nobody knows
about them. 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. JA
318-21. On July 18, the Government disclosed this and additional calls
in writing to Judge Nevas, who was supervising the wiretap. SA 763. On
July 20, the Government filed a criminal complaint against Jones
premised on violations of 18 U.S.C. 2425 and 371, and obtained a warrant

for her arrest. In the early morning
10 hours of July 21, based on the Government's courtauthorized
disclosure of limited information to the Chief State's Attorney's
Office, the Connecticut Department of Children and Families removed both

child victims from their homes in Waterbury. T 1010-12, SPA 783-84.
Mid-day on July 21, 2001, prior to her arrest, Jones told the defendant
that the caller was one of the drivers who had taken her and the
children to visit the defendant, and that he was demanding hush money.
GA 139-43. Jones was then arrested after she collected $200 from the
defendant's mailbox, and she agreed to cooperate. GA 139-40. She then
made calls seeking more hush money for the driver whom she had just
brought to the defendant's house. GA 141-43, JA 343-52. The defendant
agreed to meet Jones and her supposed associate at a commuter parking
lot in Cheshire, Connecticut, on July 23, where he delivered $500 in
cash. GA 473-78, T 1249-56. After the defendant handed over the cash,
two federal agents immediately approached him and identified themselves
as law enforcement officers.  They asked to speak with him, and he
agreed. When in the car, they told him that the Government had evidence
of his sexual misconduct and his corrupt activities as Mayor of
Waterbury. The agents did not display their weapons, repeatedly told the

defendant that he was not under arrest, and invited him to cooperate in
the ongoing probe. The defendant agreed to do so, and over the course of

the next seventy-two hours engaged in cooperation efforts against other
targets of the Government's corruption investigation, including an
organized crime figure. T 1254-58, 1983-95, SPA 11-12.
11 On July 26, after three days of such cooperation, FBI agents placed
the defendant under arrest. T 1257. The Government executed 34
search warrants that same day, including those relating to public
corruption, searches of the defendant's law office and city-provided
police cruiser, a search of the defendant and the seizure of DNA samples

from the defendant. T 1997, 1261-63, 1267-71, 1292-93, 1340,
1355. Later search warrants were executed at the Mayor's Office and
another police cruiser that the defendant had used previously. T
1264, 1352, 1365. According to a forensic expert who testified at trial,

a carpet sample taken from the law office was "glowing like a
galaxy" when subjected to a fluorescent light indicating the possible
presence of semen. T 1460. The expert testified that there were, in
fact, numerous semen stains on the carpet, and that the semen on at
least two of these stains contained DNA that matched the
defendant's. Jones's DNA was also found on the carpet. No DNA profiles
matching those of the child victims were found on the carpets
seized from the law office or the Mayor's office. T 1460-72. B.
Indictment and Trial The defendant was eventually charged in a
superseding
indictment with a number of offenses. Counts 1 and 2 charged him, acting

under color of law, with willfully depriving the two young girls of
their right to be free from aggravated sexual abuse, in violation of 18
U.S.C. 242. JA 1-5. Count 3 charged that Giordano and Jones
conspired to initiate the transmission of the names of the two victims
by using facilities of interstate commerce (cellular and other
telephones), with the intent to entice,
12 encourage, offer, and solicit the child victims to engage in sexual
activity, in violation of 18 U.S.C. 371. The overt acts set forth in
this conspiracy charge involved telephone calls between the defendant
and Jones, followed by Jones's transport of the children to the
defendant in order for him to engage in sexual acts with them. JA 6-7.
Counts 4 through 18 charged each of those phone calls individually as a
substantive violation of 18 U.S.C. 2425, which prohibits the use of
interstate facilities to transmit information about minors for the
purpose of inducing or promoting unlawful sexual activity. JA 8-23.
Before trial, the defendant moved to suppress the wiretap evidence, to
dismiss the indictment, and to disqualify the district judge. Each of
these motions was denied, as discussed in the relevant sections that
follow. At trial, the Government presented evidence over six days, and
called 48 witnesses. Among these was Guitana Jones, who had pleaded
guilty to committing and conspiring to commit 2425 offenses, and who was

testifying pursuant to a cooperation agreement. GA 40-41. Jones
essentially testified that she had a long-standing sexual relationship
with the defendant, that he regularly paid her for oral sex, and that
she routinely arranged for the defendant to have sexual liaisons with
other women (including other prostitutes). GA 46-63.  Jones said that
after the first time with Victim 1, the defendant would always tell the
girls that Jones would get arrested and they would get into trouble if
they said anything. GA 89-91, 127-28, 215. Jones further testified that
she frequently arranged to bring the two child victims to the defendant
so that he could engage in sexual acts with them. GA 64- 115, 127, 135,
141.
13 The two child victims testified by closed-circuit television. Like
Jones, both girls testified that the defendant inserted his penis into
the girls' mouths and made them perform oral sex. GSA 54-55, 66-67,
70-71, 85-86, 88, 142-43, 147-48. The defendant would push them away
prior to ejaculating. GSA 55, 85, 90. The girls also testified that the
defendant touched their breasts, and inserted his finger into their
vaginas. GSA 61-62, 85-86, 90-91, 144-45. The defendant asked Victim 2
whether she was "growing hair down there." GSA 62, 91.  Victim 1
described how the sexual acts hurt her eyes and made them itchy. GSA
150-51. Victim 2 testified that the Mayor hurt her throat during the
sexual acts. GSA 57, 87. Both girls were utterly terrified by the
experience. GSA 55-56, 86, 148-49. The defendant instructed Victim 2 not

to disclose what he made them do. GSA 79, 86, 88-89. Victim 1 could not
recall if the defendant said not to tell anyone about the sex abuse, but

she did not tell anyone because she was afraid of him. GSA 149. Both
girls knew that the defendant was Mayor of Waterbury and that he ran the

city. GSA 51, 106, 125-26. Victim 2 said the Mayor "rule[s] everybody,"
and "he's the boss of everyone." GSA 51. She did not tell anyone about
the sexual assaults because she was afraid the Mayor would hurt her and
her family, and put her jail. GSA 56, 78-79, 86-87, 92-93. Victim 1
stated that the Mayor "protects the city" and "watches over us like
God." GSA 125. She stated that she was afraid of him and thought she
"would get put in jail" (GSA 149-50), because she "thought he had
power." GSA 172.
14 The Government offered substantial evidence that corroborated these
accounts. The jury listened to a selection of conversations
intercepted over the cityprovided cellular telephones that the defendant

used. Many of these were conversations between himself and
Jones, to arrange for her to bring the girls to one of his offices. See,

e.g., GX38-T, JA 149, 158, 163, 165, 167, 169-70, 178, 183-84, 194,
201-02, 214, 223, 252, 254, 256-57, 269, 278-79, 301, 303, 314-15. The
Government also presented testimony from five drivers, who
explained how they drove Jones and one or more of the children and
waited 5 to 20 minutes while Jones and the children went inside
various locations in Waterbury: the defendant's law office at 1169 West
Main Street, the defendant's house, the Chase Building (which
houses the Mayor's office), and a condominium that belonged to a friend
of the defendant, at 827 Oronoke Road. T 662-78, 686-700,
706-25, 763- 771, 776-814, 1164-70. The defendant testified on his own
behalf, and claimed that Jones offered to bring the young girls to
the law office when Jones performed oral sex. GA 363-64. He claimed that

this was her idea, not his. The door to the office was left open
so he could look out of the room and see the girls in the waiting area
as they colored, read, or ate candy he gave them. GA 362-64,
428-29. The defendant said he did not like it: "It's not something I'm
proud of." GA 362, 429. According to the defendant, the girls could
not see him receive oral sex from Jones because they were four rooms
away and he was standing up with his back to the radiator while he
peered at them. GA 429, 454-56. The
15 receptionist desk purportedly obstructed the children's view of what
Jones was doing. On cross-examination, he admitted that the sight of the

young girls while he received oral sex was stimulating to him. GA
427-29, 450, 472-73. He also admitted that his intercepted conversations

with Jones, which were played for the jury, were for the purpose of
having Jones bring the young girls, but claimed this did not happen
between February 2001 and July 2001. GA 374, 474, 478, 481, 528. The
defendant also claimed that he did not know that the children had
watched or at least could have watched him getting oral sex. GA 428. He
said from February 2001 to July 2001, he never got together with Jones
and the girls. GA 528. He said he never got together with them during
his very active Senate campaign that ended in November 2000. GA 356,
640. He claimed that he had had called Jones only five or six times
during the period from November 1, 2000, through February 18, 2001. GA
419. He testified that Victim 1 was in his law office twice and Victim 2

once, and they were nowhere else.  GA 457. According to the defendant,
these visits occurred between November 2000 and mid-February 2001,
ending just about the time the federal wiretap started. GA 528. After a
day of deliberations, the jury found the defendant guilty of all charges

except Count 10 (which involved Jones leaving a voice mail message on
the defendant's cell hone, and which was later dismissed on the
Government's motion). GA 30.
16 C. Post-Trial Proceedings On May 1, 2003, the defendant moved for a
judgment of acquittal on all counts, renewing his pretrial arguments
that the victims lacked a federally protected right to be free of
aggravated sexual abuse; that he had not acted under color of law; and
that the telephone calls did not involve facilities of interstate
commerce because they were placed between two people who were both in
Connecticut at the time the calls were made. The district court denied
this motion on June 12, 2003. SPA 19. On June 13, 2003, the court
conducted a sentencing hearing. The Government argued that the
defendant's reprehensible sexual acts as Mayor warranted a very severe
sentence. The Government nevertheless filed a substantial assistance
motion under U.S.S.G. 5K1.1 based on the defendant's cooperation with
law enforcement before his arrest on July 26. The defendant sought a
downward departure on additional grounds. Based on the defendant's
cooperation, the court departed downward from the applicable range of
life imprisonment to a total effective term of 444 months (37 years) in
prison, to be followed by a five-year term of supervised release, plus a

$1,700 special assessment. GA 33. Judgment entered on June 19, 2003. JA
62. The defendant filed a timely notice of appeal on June 19, 2003, GA
36, and is presently serving his sentence.
17 SUMMARY OF ARGUMENT 1. The district court correctly concluded that
placing or receiving an intrastate telephone call constitutes use of a
"facility or means of interstate or foreign commerce" within the meaning

of 18 U.S.C. 2425. Telephones are integrated into a nationwide switching

network, making them instrumentalities of interstate communication.
Congress is empowered by the Commerce Clause to regulate use of such
instrumentalities without regard to whether the particular use in
question has a substantial effect on interstate commerce. 2. The
district court did not abuse its discretion in denying the defendant's
motion to suppress the wiretap evidence. The Government promptly
notified the district court once it realized that these calls were
evidence of sex crimes, and the district court properly issued an order
authorizing use of these calls in prosecuting crimes other than those
set forth in the original wiretap authorization.
Moreover, the Government's interception of calls between the defendant
and Jones was authorized by the original wiretap order premised
on public corruption offenses, because the defendant's payments of cash
to prostitutes demonstrated his access to cash from sources
beyond his modest mayoral salary. The Government properly minimized its
monitoring, and in fact all of the calls between Jones and the
defendant were less than two minutes long and therefore fall within the
safe harbor established by United States v. Capra, 501 F.2d 267,
275- 76 (2d Cir. 1974). Finally, the district court properly declined to

hold a Franks hearing because the defendant failed to make a
substantial preliminary showing that
18 material impeachment information about a cooperating witness had been

omitted from the wiretap affidavit, that any hypothetical omission had
been made recklessly or deliberately, or that any such omission would
have altered the probable cause determination. 3.  There was more than
sufficient evidence that the defendant acted under color of law in
sexually abusing the two girls. The jury heard Jones and both of the
girls testify that the defendant regularly paid Jones to have the girls
perform oral sex on the defendant, at times in the Mayor's Office or in
his city-provided police cruiser. The defendant repeatedly threatened
Jones and the girls not to tell anyone about the abuse, or else Jones
would go to jail and they would get in trouble. Through this sexual
abuse, the defendant deprived the girls of their constitutional right to

bodily integrity. Contrary to the defendant's claims, such a
constitutional right is not limited by statute to the special and
maritime jurisdiction of the United States or other circumstances set
forth in federal sex abuse statutes. 4. The district court did not abuse

its discretion in its evidentiary rulings. The defendant testified at
trial and voluntarily offered testimony about his extramarital sexual
activities, whether he had ever threatened anyone, about his access to
cash, and about his cooperation in the municipal corruption probe.
Consequently, the defendant opened the door to cross-examination on each

of these subjects, each of which was relevant to the defendant's
credibility and/or the underlying charges.
19 5. The district court did not abuse its discretion in refusing to
suppress oral statements regarding the sexual abuse and corruption that
the defendant made from July 23 to 26, 2001, during his brief period of
cooperation with law enforcement authorities. The defendant claims that
agents unreasonably delayed in presenting him before a judge, but he
offers no legal or factual argument to challenge the district court's
detailed predicate findings that the defendant was not arrested until
July 26, and that in any event his statements had been made voluntarily.

6. The district court properly declined to require that the Government
interview the child witnesses in the presence of defense counsel and a
court-appointed monitor, and cites no statutes or case law in support of

his claim. Moreover, the district court scrupulously followed the
procedures set forth in 18 U.S.C. 3509 before determining that each of
the girls could testify by two-way closed circuit television. The
district court properly relied on expert testimony that there was a
substantial likelihood that one victim "would suffer emotional trauma
from testifying" in open court, and properly relied on lay testimony
that both girls would be "unable to testify [in open court] because of
fear." These conclusions were fully consonant with the principles
announced in Maryland v. Craig, 497 U.S. 836 (1990).
7. The district court did not abuse its discretion in precluding the
defendant from cross-examining the child victims about prior sexual
behavior. The defendant's pretrial proffer failed the specificity and
relevance standards of Fed. R. Evid. 412, because it simply alleged that

the victims might have witnessed and/or participated
20 in sexual conduct at home. At most, the defendant claimed that this
evidence could show that the girls had learned about sexual terms
and anatomy at home, rather from experiences with the defendant. Neither

the Government nor the defense pursued any such lines of
questioning at trial, and so the defendant could not have suffered any
prejudice from the exclusion. 8. The district court did not abuse its
discretion in computing the defendant's offense level. None of his
multiple challenges are supported by any citations of case law or
argument, and should therefore be deemed waived on appeal. On the
merits, the district court erred only in imposing a two-level
enhancement for serious bodily injury under U.S.S.G. 2A3.1(b)(4)(B), but

this error did not ultimately affect the defendant's final offense
level and was therefore harmless. The district court granted the
Government's motion under 5K1.1 and departed downward from life in
prison to 444 months. It declined to exercise its discretion to depart
downward on further grounds advanced by the defendant, and its
decision in this regard is unreviewable on appeal. 9. The defendant
waived any challenge on appeal to the district judge's failure to recuse

himself, by failing to offer any argument and instead purporting to
incorporate by reference earlier pleadings before this Court in an
unsuccessful mandamus action. On the merits, the district judge did not
abuse his discretion in declining to recuse himself from ruling on
the motion to suppress the wiretap evidence simply because he had issued

the authorization orders. Likewise, the judge did not abuse his
discretion by declining to recuse himself from the entire
21 case after ruling at a bail hearing that the defendant was a "sexual
predator" and should be detained to avoid danger to the community.
Facts learned in the course of judicial proceedings do not constitute a
basis for recusal on grounds of bias, and the defendant made no
showing that the judge displayed deep-seated antagonism that would make
fair judgment impossible. ARGUMENT I. The District Court
Correctly Concluded That the Defendant's Use of a Telephone Constituted
Use of a Facility of Interstate Commerce for Purposes of 18
U.S.C. 2425. A. Relevant Facts Counts 4 through 18 of the superseding
indictment charged the defendant with using a facility of interstate
commerce to transmit information regarding a minor, in violation of 18
U.S.C. 2425. Count 3 charged the defendant with conspiring to
violate 2425. JA 1-23. Before trial, the defendant moved to dismiss
these charges. As a statutory matter, he argued that 2425 applies only
where a defendant has made actual interstate communications. Because the

calls listed in the indictment were made to and from people in
Connecticut, he claimed that they fell outside the purview of 2425. The
defendant further argued that if the district court were to
conclude that intrastate telephone calls were sufficient
22 under 2425, then the statute itself exceeded Congress's powers under
the Commerce Clause. In a written decision dated July 29, 2002,
the district court rejected both of these arguments. SPA 4-6. At trial,
the evidence showed that Counts 3 through 18 involved telephone
calls between the defendant and Jones to arrange for sexual encounters
with the minor victims. These conversations involved two cell
phones used by the defendant. The first cell phone, which the defendant
used from February to April 2001, was provided service by Nextel
Communications (Counts 4 through 10). The second cell phone, which the
defendant used from the end of March to July 2001, was
provided service by Cingular Wireless (Counts 11 through 18). Jones made

and received calls with the defendant from various land line
telephones. It is undisputed that both the defendant and Jones were in
Connecticut at the times that the phone calls were made. The
Government introduced testimony from Richard Iozzo and Donald
Richardson, engineers employed by Nextel and Cingular Wireless,
respectively, regarding the nature and extent of the telecommunications
infrastructure used to make the telephone calls identified in
Counts 4 through 18. T 817-68 (Iozzo); 869-88 (Richardson). Iozzo and
Richardson both described a global telecommunications network
known as the Public Switching Telephone Network ("PSTN"). The PSTN is
composed of all of the telecommunications service providers
throughout the world, which are interconnected through cables and
circuits. When a user turns on a cell phone, the cell phone is
integrated into the service
2 Iozzo also testified that a very small area of the state of
Connecticut is served by a Nextel switching center in Mansfield,
Massachusetts. T 864. 23 provider's own infrastructure, which, in turn,
is part of the PSTN. T 821-23, 871. During the period of time at issue
in this case (November 2000 through July 2001), both Nextel and Cingular

maintained extensive infrastructures, some of the components of which
were in Connecticut. These infrastructures, which included cell site
towers and switches, handled both interstate and intrastate telephone
calls and were integrated into the PSTN. T 824-31, 871- 79. Iozzo
testified that every call to or from a Nextel cell phone in Connecticut
during this time would necessarily have been routed through a Nextel
switching center in White Plains, New York, even if the call were to or
from another person in Connecticut.2 T 828-30. With respect to the calls

identified in Counts 4 through 9, which involved a Nextel cell phone and

a land line telephone in Connecticut, electronic communications would be

routed by radio signal to a Nextel cell site tower, and then by cable to

the White Plains switching center. From the switching center in White
Plains, the calls would be transmitted by cable to the local telephone
service provider (in this case, SNET), and finally, through the SNET
network, to a land line telephone in Connecticut. T 828- 30. Iozzo
testified that although this route would be established in a fraction of

a second, it would last the duration of the telephone call, during which

voice and data signals would be transmitted through the PSTN.
24 Richardson testified that cell phones operate by using certain
frequencies that are assigned to cellular service providers by the
Federal
Communications Commission ("FCC"). Richardson also testified that the
FCC not only licenses and assigns frequencies to service providers,
but also promulgates rules and regulations for service providers
relating to the operation and use of assigned frequencies. T 879-81. On
March 19, 2003, at the close of the Government's case-in-chief, the
district court orally denied the defendant's motion for a judgment of
acquittal on Counts 3 through 18, based on his Commerce Clause
arguments. GA 23-26. Following the close of evidence, the defendant
requested that the district court instruct the jury that in order to
convict, they must find, as an essential element of the offense, that
the
defendant made or received an interstate telephone call in committing
the charged offenses. The district court rejected this proposed
charge and, on March 23, 2003, instructed the jury that a facility of
interstate commerce, for purposes of 2425, is an instrumentality that
has the capacity to make interstate phone calls, and that the element
requiring use of a facility of interstate commerce is satisfied even if
the actual phone calls identified in the indictment were intrastate
phone calls. JA 117. The defendant objected to this instruction. On
March 31, 2003, following his conviction, the defendant renewed his
motion for a judgment of acquittal, including his Commerce Clause
challenge. In a written decision dated June 12, 2003, the district court

denied the
25 defendant's motion, and adopted its earlier ruling on the defendant's

motion to dismiss. SPA 19. B. Governing Law and Standard of
Review Section 2425 of Title 18 of the United States Code prohibits use
of an interstate facility to transmit certain information about a
minor with the intent to solicit any person to engage in illegal sexual
activity. The statute provides, in pertinent part, as follows: Whoever,
using the mail or any facility or means of interstate or foreign
commerce . . . knowingly initiates the transmission of the name,
address,
telephone number, social security number, or electronic mail address of
another individual, knowing that such other individual has not
attained the age of 16 years, with the intent 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 attempts to do so,

shall be [guilty of a crime]. The Commerce Clause "provides that
‘Congress shall have Power . . . [t]o regulate Commerce with foreign
Nations and among the several States . . . .'" Freedom Holdings, Inc.
v. Spitzer, 357 F.3d 205, 216 (2d Cir. 2004) (quoting U.S. Const. Art.
I, 8, cl. 3). This Court has suggested that "[a]mong the eighteen
Congressional powers enumerated in Article I of the Constitution, the
26 Commerce Power is, perhaps, the most sweeping." United States v.
King, 276 F.3d 109, 111 (2d Cir. 2002). In United States v. Lopez, 514
U.S. 549 (1995), the Supreme Court categorized the activities that
Congress may permissibly regulate under the Commerce Clause:
First, Congress may regulate the use of the channels of interstate
commerce. Second, Congress is empowered to regulate and protect the
instrumentalities of interstate commerce, or persons or things in
interstate commerce, even though the threat may come only from
intrastate activities. Finally, Congress' commerce authority includes
the power to regulate those activities having a substantial relation to
interstate commerce, i.e., those activities that substantially affect
interstate commerce. Id. at 558-59 (internal citations omitted). The
Lopez Court struck down a law which prohibited simple possession of a
firearm in school zones, reasoning that the law fell within neither of
the first two categories (because guns are neither channels nor
instrumentalities of commerce), and that simple gun possession in a
school zone did not "substantially affect interstate commerce." Id. at
559-60; see also United States v. Morrison, 529 U.S. 598, 608-09 (2000)
(striking down provision of Violence Against Women Act, which provided
civil remedy for violence motivated by gender; finding statute
deficient under third Lopez category). "A showing that a regulated
activity substantially affects interstate commerce (as required for
27 the third category) is not needed when Congress regulates activity in

the first two categories." United States v. Gil, 297 F.3d 93, 100 (2d
Cir. 2002). This Court conducts de novo review of a constitutional
challenge to the validity of a federal statute. See United States v.
Pettus, 303 F.3d 480, 483 (2d Cir. 2002); King, 276 F.3d at 111. "‘The
propriety of a jury instruction is a question of law that we review de
novo.'" United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004)
(quoting United States v. George, 266 F.3d 52, 58 (2d Cir. 2001)). "‘A
jury instruction is erroneous if it misleads the jury as to the correct
legal standard or does not adequately inform the jury on the law.'"
United States v. Pimentel, 346 F.3d 285, 301 (2d Cir. 2003) (quoting
United States v. Walsh, 194 F.3d 37, 52 (2d Cir. 1999)). To the
extent a defendant challenges the district court's denial of his motion
for acquittal on grounds of evidentiary insufficiency, this Court
engages in de novo review, applying the same standard that governs a
general challenge to the sufficiency of evidence. See United States
v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003); United States v. Thorn,
317 F.3d 107, 132 (2d Cir.), cert. denied, 123 S. Ct. 2232 (2003). It
is settled that a defendant challenging a conviction on sufficiency
grounds "bears a heavy burden." United States v. Masotto, 73 F.3d
1233, 1241 (2d Cir. 1996). The Court considers the evidence presented at

trial in the light most favorable to the government, crediting
28 every inference that the jury might have drawn in favor of the
government. The evidence must be viewed in conjunction, not in
isolation, and its weight and the credibility of the witnesses is a
matter for argument to the jury, not a ground for reversal on appeal.
The task of choosing among competing, permissible inferences is for the
fact-finder, not the reviewing court. See, e.g., Jackson, 335 F.3d at
180; United States v. Johns, 324 F.3d 94, 96-97 (2d Cir. 2003); United
States v. LaSpina, 299 F.3d 165, 180 (2d Cir. 2002); United States v.
Downing, 297 F.3d 52, 56 (2d Cir. 2002). These principles apply to both
direct and circumstantial evidence. See, e.g., United States v.
Griffith, 284 F.3d 338, 348 (2d Cir. 2000) (citing United States v.
Morrison, 153 F.3d 34, 49 (2d Cir. 1998)). A witness's direct testimony
to a particular fact provides sufficient evidence of that fact for
purposes of sufficiency of the evidence review. See United States v.
Jespersen, 65 F.3d 993, 998 (2d Cir. 1995)."The ultimate question is not

whether we believe the evidence adduced at trial established
defendant's guilt beyond a reasonable doubt, but whether any rational
trier of fact could so find." United States v. Payton, 159 F.3d 49,
56 (2d Cir. 1998) (emphasis in original) (citing Jackson v. Virginia,
443 U.S. 307, 319 (1979)). C. Discussion The district court properly
held
that intrastate telephone calls can give rise to criminal liability
under 2425, consistent with the Supreme Court's decision in Lopez. The
evidence in the instant case clearly established that the facilities in
question -- telephones -- were instrumentalities of interstate
commerce, regardless of
3 There is no meaningful distinction between the statutory term
"facility" and "instrumentality." See United States v. Marek, 238 F.3d
310,
317 & n.26 (5th Cir. 2001). 29 whether they were used to make interstate

calls. Congress' regulation of these facilities is therefore
permissible under the second Lopez category, without regard to whether
the particular phone calls in the present case -- intended to
arrange for sexual encounters with the minor victims -- individually had

a substantial effect on interstate commerce. As a matter of
statutory construction, there can be no question that telephones are
"facilities or means" of interstate commerce within the plain meaning
of 2425.3 At trial, the Government offered uncontroverted evidence that
the Public Switching Telephone Network, over which the calls in
this case were transmitted, is a global telecommunications system
encompassing both cell phones and land line telephones. Thus, the
PSTN itself, which incorporates cell phones, land line telephones, and
telecommunications infrastructure, is also an instrumentality of
interstate commerce. See United States v. Gilbert, 181 F.3d 152, 158
(1st Cir. 1999) ("Both intrastate and interstate telephone
communications are part of an aggregate telephonic system as a whole.")
(citation omitted); Kerbs v. Fall River Indus., Inc., 502 F.2d 731,
738 (10th Cir. 1974), cited with approval by United States v. Gil, 297
F.3d 93 (2d Cir. 2002). It is well established that Congress may and
does regulate wire and radio communications, interstate communication
providers, and
4 The defendant concedes that Congress can regulate particular
intrastate transactions (such as ATM withdrawals) involving "activities
that are traditionally subject to federal regulation" such as banking
(Def. Br. 36), but for some reason does not apply the same logic to
cellular telephone service, which is likewise subject to pervasive
federal regulation. 5 The defendant's invocation of the rule of lenity
(Def.  Br. 39) is unavailing because telephones are unambiguously
"facilities of interstate commerce." Where, as here, "congressional
intent is clear, the rule of construction of criminal statutes in favor
of lenity is inapplicable." United States v. Riccardelli, 794 F.2d 829,
833 (2d Cir.
  1986) (recognizing that use of the mails is
30 satellite systems. See generally Title 17, United States Code.4
Courts have uniformly held that telephones are facilities of interstate
commerce in the context of other federal statutes, though research
discloses no cases where that precise question has yet arisen in the
context of 2425. This has been true regardless of whether the parties to

the phone call are in the same state. For example, courts have
reached such a conclusion in the context of civil securities fraud
cases. See, e.g., Loveridge v. Dreagoux, 678 F.2d 870, 873-874 (10th
Cir. 1982); Alley v. Miramon, 614 F.2d 1372, 1379 (5th Cir. 1980); Dupuy

v. Dupuy, 511 F.2d 641, 643-644 (5th Cir. 1975); Aquionics
Acceptance Corp. v. Kollar, 503 F.2d 1225, 1228 (6th Cir. 1974); Kerbs,
502 F.2d at 738.5
5 (...continued) inherently a "federal instrumentality" and therefore an

intrastate mailing confers jurisdiction under the Travel Act, 18 U.S.C.
1952). 31 As a constitutional matter, Congress's regulation of the use
of telephones falls squarely within Lopez's second category of
permissible legislation -- that is, laws that "regulate and protect the
instrumentalities of interstate commerce, or persons or things in
interstate commerce." 514 U.S. at 558. Unlike the statutes at issue in
Lopez and Morrison, which regulated gun possession and violence against
women, 2425 regulates use of telephones -- a prototypical
instrumentality of interstate commerce. And in the wake of Lopez and
Morrison, courts have repeatedly rejected Commerce Clause challenges to
criminal convictions where jurisdiction was predicated on the use of a
telephone, even where the call at issue was purely intrastate. See,
e.g., United States v. R.J.S., Jr., 366 F.3d 960, 960 (8th Cir.  2004)
(upholding bomb-threat conviction under 18 U.S.C. 844(e); "the commerce
power reaches wholly intrastate telephone calls, so long as the calls
are made with telephones connected to an interstate telephone system);
United States v. Corum, 362 F.3d 489, 493 (8th Cir.
2004) (same; "It is well-established that telephones, even when used
intrastate, are instrumentalities of interstate commerce."); United
States v. Clayton, 108 F.3d 1114, 1117 (9th Cir 1997) (upholding
convictions under 18 U.S.C. 1029(a) for cloning cell phones; "Telephones

are instrumentalities of interstate commerce"). See also United States
v. Weathers, 169 F.3d 336, 341 (6th Cir. 1999) (dicta) (noting that
well
32 established precedent makes it "fairly simple" to conclude "that
telephones, even when used intrastate, constitute instrumentalities of
interstate commerce"). Because congressional regulation of
instrumentalities of interstate commerce, such as telephones, implicates

category two of Lopez, there is no need to engage in the further
analysis required in Lopez category three, which asks whether activities

"substantially affect interstate commerce." 514 U.S. at 559. "[W]hen
Congress elects to regulate under the second prong of Lopez, federal
jurisdiction is supplied by the nature of the instrumentality or
facility used, not by separate proof of interstate movement." United
States
v. Richeson, 338 F.3d 653, 660-661 (7th Cir. 2003) (internal quotation
marks and citation omitted) (holding that intrastate use of
telephone lines in murder-for-hire scheme satisfies jurisdictional
element of 18 U.S.C. 1958(a)); see also Clayton, 108 F.3d at 1117
(because telephones are instrumentalities of interstate commerce, they
"fall under category two of Lopez, and no further inquiry is
necessary to determine that their regulation under 18 U.S.C. 1029(a) is
within the Commerce Clause authority"); Gilbert, 181 F.3d at 158
(affirming conviction for making bomb threat through intrastate
telephone call, in violation of 18 U.S.C. 844(e), which prohibits
threats
"through the use of the mail, telephone, telegraph, or other instrument
of interstate or foreign commerce"). This Court recently reached an
analogous conclusion regarding the sufficiency of intrastate mailings
under the Commerce Clause. In United States v. Gil, 297 F.3d 93 (2d
Cir. 2002), this Court rejected the defendant's
33 Commerce Clause challenge to his mail fraud conviction under 18
U.S.C. 1341. The Court explained that "[a] showing that a regulated
activity substantially affects interstate commerce (as required for the
third category) is not needed when Congress regulates activity in the
first two categories." Id. at 100 (emphasis added). The Court
"conclude[d] 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." Id. Accord United States v.
Photogrammetric Data Services, Inc., 259 F.3d 229, 249-53 (4th Cir.
2001) (rejecting similar Commerce Clause challenge to mail fraud
conviction premised on intrastate delivery); United States v.
Riccardelli, 794 F.2d 829, 831 (2d Cir. 1986) (pre-Lopez case
interpreting the Travel Act, 18 U.S.C. 1952, and holding that intrastate

mailing is sufficient to invoke federal jurisdiction); United States v.
Heacock, 31 F.3d 249, 255 (5th Cir. 1994) (same). Cf. United States v.
Cope, 312 F.3d 757, 771 (6th Cir. 2003) (in murder-forhire case, proof
of intrastate mailing held sufficient to satisfy jurisdictional element
of 1958(a)). This Court's analysis in Gil tracks the consistent
reasoning of other appellate courts considering Commerce Clause
challenges to criminal convictions. While there is considerable variety
among the instrumentalities of interstate commerce used to effectuate
federal criminal offenses, the rule remains the same: Congress may
properly regulate instrumentalities of interstate commerce, regardless
of whether the instrumentality in question is actually used in an
interstate transaction or activity. See United States v. Marek, 238 F.3d

310, 318-319 (5th Cir.
6 To the extent that certain courts have reached the same conclusion
with respect to the murder-for-hire statute, 18 U.S.C. 1958, they have
relied on language in (continued...) 34 2001) (upholding
constitutionality of murder-for-hire conviction under 1958(a), because
defendant's intrastate use of Western Union to transfer funds within
Texas fell within Lopez category two); United States v. Baker, 82 F.3d
273 (8th Cir. 1995) (rejecting Commerce Clause challenge to extortion
conviction under 18 U.S.C. 1952, where defendant forced victim to
withdraw cash from ATM machine, even though the ATM owner bank and
drawee bank were both in Missouri; use of interstate network of ATMs
brought act within Lopez category two). The only cases in which this
Court has required proof of interstate communication involve statutes
with language that is materially different from 2425 -- namely, statutes

under which the criminal act itself must be committed in or affecting
interstate commerce. For example, this Court has held that the wire
fraud statute, which punishes anyone who "transmits [certain
communications] . . . in interstate or foreign commerce," requires proof

of an actual interstate transmission. See United States v. Blackmon, 839

F.2d 900 (2d Cir. 1988). The same holds true for the credit card fraud
statute, 18 U.S.C.
1644, which punishes whoever engages in specified fraudulent
"transaction[s] affecting interstate or foreign commerce" -- language
that
fits squarely into Lopez category three. United States v. De Biasi, 712
F.2d 785, 790 (2d Cir. 1983).6
6 (...continued) that statute that prohibits use of "any facility in
interstate or foreign commerce" -- and interpreted the phrase "in
interstate or foreign commerce" to refer to the use, not the facility.
See, e.g., United States v. Paredes, 950 F. Supp. 584 (S.D.N.Y.  1996).
But see Richeson, 338 F.3d 653, 660-661 (7th Cir. 2003) ("[T]here is one

and only one way to read the plain language of the murder-for-hire
statute, and that is to require that the facility, and not its use, be
in interstate or foreign commerce." ); Marek, 238 F.3d at 317 (same).
Some of the confusion over 1958 stems from an apparent drafting error:
The subsection outlining the prohibited conduct speaks of "any facility
in interstate or foreign commerce," whereas the subsection immediately
following defines a "facility of interstate commerce." (Both emphases
added.) But whatever the case may be with 1958, 2425 employs language
that more clearly indicates that the facility, not its use, must be
linked to interstate commerce. 35 The defendant cites this Court's
decision in United States v. Archer, 486 F.2d 670 (2d Cir. 1973), in
support of his position that federal jurisdiction may only be
established by interstate phone calls. Def. Br.
20-21. While it is true that the Archer Court reversed the defendants'
convictions under the Travel Act, 18 U.S.C. 1952, because they did
not make any interstate telephone calls in furtherance of their illegal
scheme, the Court's focus was on who had made the calls, not on
whether those calls were intrastate or interstate. In Archer, the calls
in question had been placed by undercover agents who sought to
induce the defendants to make such calls. The Court was understandably
offended by the government's
36 jurisdictional entrapment and much of the opinion concerned the
government's questionable efforts to create an opportunity for the
defendants to commit a crime and to do so in a way that would permit
federal prosecution. In deciding the case, however, the Court "in fact
went no further than to hold that when the federal element in a
prosecution under the Travel Act is furnished solely by undercover
agents, a stricter standard is applicable than when the interstate or
foreign activities are those of the defendants themselves . . . ." Id.
at 685-686. Moreover, even if Archer were read to require proof of
interstate calls, the fact that it involved the Travel Act (which posits

use of a facility in interstate commerce) distinguishes it from the
present case, which involves 2425 (which requires use of a facility of
interstate commerce). As discussed supra n.6, the language of the
former, unlike that of the latter, has sometimes been construed to
require proof that the transaction in question actually was an
interstate occurrence. The defendant fares no better in his reliance on
Jones v. United States, 529 U.S. 848 (2000), for the proposition that
only interstate phone calls provide a sufficient nexus for federal
jurisdiction.
Def. Br. 25. While it is true that the Court in Jones invoked the
doctrine of constitutional avoidance to interpret a criminal statute to
avoid
a potential conflict with the Commerce Clause, the Court did so in order

to give the most natural meaning to the word "use." Specifically, in
Jones, the Court held that for an owner-occupied dwelling to constitute
property "used in interstate or foreign commerce," the property
had to be actively used; passive uses, such as offering the home as
collateral or simply
37 insuring it, did not qualify. Id. at 855. In reaching this
conclusion, the Court found ambiguity in the term "used," not in the
term "in
interstate or foreign commerce." Id. at 857-58. In the present case,
however, there is no ambiguity as to whether the defendant made
and received calls on his cell phones: The wiretap evidence conclusively

proved that. And there can be no serious contention that such
activity does not constitute "use." Because the canon of constitutional
avoidance "has no application in the absence of statutory
ambiguity," Rucker, 535 U.S. at 134, Jones does not support the
defendant's effort to limit the scope of 2425 to interstate phone calls.

To
the extent the defendant contends that punishment of sex crimes should
remain the province of the states absent a call from one state to
another, his argument is more properly directed to Congress than this
Court. Indeed, this Court has previously considered and rejected
similar policy arguments. See Riccardelli, 794 F.2d at 833 ("federalism
arguments are misplaced since once the federal jurisdictional nexus
of the use of the mails is present, ‘the statute [18 U.S.C. 1952]
reflects a clear and deliberate intent on the part of Congress to alter
the
federal-state balance in order to reinforce state law enforcement.'")
(quoting Perrin v. United States, 444 U.S. 37, 50 (1979)); United
States v. Kelner, 534 F.2d 1020, 1024 (2d Cir. 1976) ("However much we
might agree as a matter of principle that the congressional reach
should not be overextended or that prosecutorial discretion might be
exercised more frequently to permit essentially local crimes to be
prosecuted locally . . . we do not feel that Congress is powerless to
regulate matters in commerce when the interstate features of the
activity represent a
7 "[The Act] prohibits contacting a minor over the Internet for the
purposes of engaging in illegal sexual activity and punishes those who
knowingly send obscenity to children." H.R. Rep. No. 105-557, at 12
(1998). 38 relatively small, or in a sense unimportant, portion of the
overall criminal scheme."); United States v. Kammersell, 196 F.3d 1137,
1139 (10th Cir. 1999) (in light of plain language of 18 U.S.C.  875(c),
rejecting claim that prosecuting for threats transmitted by e-mail would

federalize most crimes because most e-mails go through out-of-state
routers). The defendant further argues that Congress's enactment of 2425

was largely motivated by a desire to deter and punish crimes against
children over the Internet,7 and that the absence of any reference in
the legislative history to telephones defeats its application to
intrastate calls. This argument fails for several reasons. First, the
defendant's argument is a logical non sequitur; if he were correct that
2425 applies only to the Internet, then both interstate and intrastate
phone calls would fall outside its scope -- and even he has not made
such a far-fetched claim. Second, the statutory text does not mention
the Internet, but rather speaks expansively of "any facility or means of

interstate or foreign commerce." See, e.g., Department of Housing and
Urban Development v. Rucker, 535 U.S.
125, 131 (2002) ("the word ‘any' has an expansive meaning, that is, ‘one

or some indiscriminately of whatever kind'") (internal quotation
marks omitted). "[R]eference to legislative history is inappropriate
when the text of the statute is unambiguous." Id. at 132. Third,
39 the Internet itself is a global telecommunications network that
relies on telephone lines belonging to the PSTN -- the very network
which the defendant claims is outside the scope of 2425. It is hard to
imagine that Congress meant to punish people for using keyboards
and modems to entice children over phone lines, but not for doing so by
speaking over those same lines. See H.R. Rep. No. 105- 557, at 24
  (1998) (in passing 2425, Congress intended "to bring the most
effective resources to bear in seeking to protect children from sexual
predators"); cf. Dupuy, 511 F.2d 641, 643 (5th Cir. 1975) (relying on
Congress's broad anti-fraud objective to interpret 15 U.S.C. 78j as
prohibiting both intrastate and interstate calls as "the use of any
means or instrumentality of interstate commerce"). Finally, even if the
Court were to require proof that a call crossed state lines to sustain a

2425 conviction, the fact that all the Nextel calls passed through a New

York switching center would be sufficient to uphold Counts 4 through 9.
See United States v. Weathers, 169 F.3d 336, 341 (6th Cir.
  1999) (holding, in 1958 murder-for-hire case, that cell phone's use of

interstate electronic signal to effectuate intrastate telephone call
suffices to prove phone was actually used in interstate commerce). The
defendant's complaint that such an interstate nexus is "serendipitous"
or based on "technological facts" misses the point; even as to statutes
that require proof of an actual interstate transaction, this Court has
not required proof that the defendant intended or even knew of the
interstate nature of that transaction. See, e.g., Blackmon, 839 F.2d

8 The defendant also argues (Def. Br. 22-23) that the mere fact that a
cell phone service provider is located in a different state is
insufficient to form a basis for federal jurisdiction in this case. The
Government has not made such an argument, and so the Court need
not consider it. 40 at 908 (wire fraud); DeBiasi, 712 F.2d at 789
(credit card fraud).8 In sum, the court correctly instructed the jury
that
the first element of 2425 could be satisfied without evidence of
interstate phone calls, and this construction of 2425 is permitted by
the
Commerce Clause. II. The District Court Did Not Abuse Its Discretion in
Denying the Defendant's Motion To Suppress the Wiretap Evidence
A. Relevant Facts 1. The Wiretap and Discovery of the Sex Offenses On
February 18, 2001, the Government obtained court authorization
to conduct electronic surveillance for the purpose of obtaining evidence

of certain crimes involving racketeering and public corruption. SA
3. One of the original goals of the investigation was to obtain evidence

that the defendant was receiving money and other items in
exchange for steering City contracts to certain contractors and vendors.

For example, Special
41 Agent Reiner's affidavit of February 18, 2001, submitted in support
of the Government's first wiretap application, describes an incident in
which the defendant was seen to have a large amount of cash immediately
after meeting the owner of Worth Construction Company. SA 30-31.
Accordingly, agents conducting the wiretap were instructed to monitor
calls indicating that the defendant was spending money beyond his
lawfully gained means -- including conversations with Jones and other
women whom he appeared to being paying for sex and drugs. SA 1081-82. In

wiretap progress reports regularly filed with the district court, the
Government advised that it was monitoring such conversations, although
it did not list every such conversation. SA 1082-85. It was not until
the late afternoon of July 13, 2001, that the FBI had probable cause to
believe that the defendant was engaging in sexual contact with a child.
Before July 9, 2001, the FBI had considered Jones to be merely one of
several women with whom the defendant had a sexual relationship and to
whom the defendant gave money in exchange for sex. SA 1085.
Specifically, the FBI was aware of allegations that the defendant had an

ongoing sexual relationship with a Waterbury prostitute, whose name was
believed to be Guitana Graham, with whom he had fathered a child around
1993. SA 1080.
In making telephone arrangements for sexual liaisons with the minor
children, the defendant and Jones never openly discussed what they
were doing. Rather, in relatively brief conversations, they would make
arrangements to meet at a particular time and place. The defendant
and Jones would make brief and vague references to other persons,
42 two of whom, as the FBI later discovered, were the young victims in
this case. SA 1086. These sex crimes first came to the
Government's attention as the result of a brief intercepted call on July

9, 2001, in which Jones told the defendant that she was bringing
"[Victim 1]" with her to meet the defendant and that it was Victim 1's
ninth birthday. JA 303-04. Based on their knowledge of the
defendant's sexual relationship with Jones and the context of the
intercepted conversation, FBI agents thought that the defendant might
be arranging a sexual liaison with Jones and/or a minor. In order to
investigate, and thwart if necessary, this possible sexual liaison, the
Government arranged for a pretext call by an undercover law enforcement
officer on July 12, 2001, which had the effect of deterring the
defendant from continued sexual contact with the minor victims. JA 316-
17. The pretext call to the defendant caused him to make
incriminating statements to Jones on the following day, which were also
intercepted. JA 318-21. On July 13, 2001, the Government
submitted to the district court a report entitled "Filing Regarding
Possible Sex Offenses." SA 758. The Government advised that it had
reason to believe that the defendant had made arrangements to engage in
sexual relations with a minor, and described the relevant
intercepted calls. SA 759. The Government also described how it had
arranged for the pretext call to the defendant on July 12, 2001. SA
760-61. At the time the Government filed this report, at about noon on
July 13, the Government did not yet have probable cause to
believe that the defendant had violated or was
43 about to violate any state or federal law concerning sexual contact
with minors. SA 1086. In a subsequent report, dated July 18, 2001, the
Government advised the district court of further intercepted calls,
including a conversation at approximately 3:15 p.m. on July 13, 2001,
between the defendant and Jones. SA 763. Based on these conversations,
there was now probable cause to believe that the defendant had engaged
in sexual relations with at least one minor child. SA 1085. The
Government then advised the Court of the actions it would take to insure

the safety and well-being of the children and to continue its
investigation of the defendant for sex-related offenses, as well as for
the offenses described in the wiretap orders. SA 769-70. On July 20,
2001, upon concluding that the defendant was using his cell phones to
engage in offenses beyond those outlined in the wiretap applications,
the Government filed an application permitting use of that evidence
pursuant to 18 U.S.C. 2517(5). SA 771-76. The Government requested
authorization to use the intercepted communications relating to the
defendant's sexual contacts with minors in a prosecution for violations
of 18 U.S.C. 2425 and 371 and various state offenses. A supporting
affidavit reaffirmed that the wiretap orders had been sought in a good
faith effort to investigate the racketeering and related violations
listed in the applications, and that the Government had not sought the
orders as a pretext for gathering evidence of other wrongdoing. SA
777-80.
44 On July 20, 2001, the district court granted the 2517(5) application.

SA 781. The court found that the communications relating to the
possible sex offenses "were intercepted pursuant to Orders entered by
the Court and in good faith. The apparent relevance of these
communications to other offenses not previously specified became
apparent to the Government on or about July 13, 2001, at which time
the Government informed the Court." SA 783, 5. On September 5, 2001, the

Government filed a second application pursuant to 2517(5),
seeking the court's authorization to disclose the intercepted calls in
relation to possible violations of 18 U.S.C. 242. GSA 1- 6. The district

court granted that application on September 6, 2001. GSA 7-11. Following

the defendant's arrest, federal agents reviewed numerous
telephone calls between the defendant and Jones that had been
intercepted earlier. Prosecutors identified 15 intercepted conversations

that would form the basis for the 2425 violations charged in Counts 4
through 18 of the Superseding Indictment, as well as other
incriminating conversations. The defendant moved to suppress the
intercepted calls between himself and Jones and all evidence derived
therefrom, alleging numerous statutory violations. The defendant's
central claim was that the FBI was not authorized to intercept any
communications between himself and Jones because they were irrelevant to

the federal offenses for which the wiretap had been
authorized. The defendant also claimed that the
45 Government had acted in bad faith by failing to comply with 2517(5).
By order dated February 13, 2003, the district court denied the
defendant's motion. In its written decision, the district court found
that conversations, such as those between Giordano and individuals
such as Jones were directly relevant to the government's corruption
investigation. The investigation sought evidence substantiating the
government's belief that Giordano was receiving money from sources other

than his modest income as Mayor of Waterbury. Consequently,
any evidence revealing that Giordano was receiving bribes and then
disbursing the money to a network of prostitutes, such as Jones,
would tend to show that he was abusing his public office for improper
and illegal gain. Therefore, the court had probable cause to
authorize the government's surveillance of telephone conversations
between Giordano and Jones. SPA 13-14. Addressing the defendant's
argument that the Government violated 2517(5), the district court found
that the original order authorizing electronic surveillance was
lawfully obtained, that it was sought in good faith and not as a
subterfuge, and that the conversations in question were intercepted
incidentally during the course of the lawfully executed order. SPA 14.
The district court found that the Government's actions with respect
to the
46 intercepts relating to the defendant's sexual abuse of the two minor
victims demonstrate[d] that the government properly kept the
court apprised of the u n a n t i c i p a t ed i n t e rc e p t i o n of

communications between Giordano and Jones, and refute Giordano's
allegation that the government concealed the sexual nature of the these
conversations. Therefore, because the government complied with
the requirements of 2517(5) and [United States v.] Masciarelli, [558
F.2d 1064, 1069 (2d Cir. 1977),] Giordano's allegation that the
government acted in bad faith in conducting the wiretap is baseless. SPA

14. In addition, the district court held that "the government's
interception of the communications between Giordano and Jones was
consistent with the plain view doctrine under the Fourth Amendment
as applied to Title III electronic surveillance." SPA 14. 2. The Franks
Claims By motion dated January 30, 2002, the defendant challenged
the 55-page affidavit which FBI Special Agent Reiner had submitted on
February 18, 2001, in support of the Government's original wiretap
application. SA 17-69 (affidavit). The defendant requested a hearing,
pursuant to Franks v. Delaware, 438 U.S. 154 (1978), on the
grounds that the affidavit supposedly omitted material facts which, if
included, would have undermined the
47 supervising judge's probable cause determination. These facts
allegedly related to the absence of forensic evidence. In a later
submission dated December 9, 2002, the defendant renewed his motion for
a Franks hearing, but on entirely different grounds. The
defendant filed a brief affidavit relating to a confidential source,
identified in the February 18 affidavit as "CW-1," who provided
information
that, he argued, was critical to the finding of probable cause. SA 1061,

1071-72. The defendant identified CW-1 as Tim Longino, the
defendant's former chief of staff when he was the Mayor of Waterbury.
The defendant alleged that Longino had misappropriated more than
$50,000 in campaign funds and was subsequently discharged by the
defendant, and that the Government knew or had reason to know of
Longino's discharge. Id. At a hearing on January 6, 2003, the defendant
did not pursue his original claim regarding forensic evidence, but
instead claimed for the first time that he had identified two witnesses
who would testify to Longino's supposed misappropriation of
campaign funds. 1/6/03 T 2-5. The defendant produced no affidavits from
these witnesses; instead, defense counsel told the district court
that one of them, James Paolino, would testify that Longino had asked
Paolino to cash checks. 1/6/03 T 3-5. Paolino was represented by
counsel, who would not permit defense counsel to interview him, 1/6/03 T

21-22, and who indicated that Paolino, if called to testify, would
assert his Fifth Amendment right against compelled selfincrimination.
Def. Br. 79. Defense counsel did not proffer the testimony of the
other witness whom he identified. The district court noted that the
defendant's
48 December 9 submission included no details about checks, nor any
evidence that Special Agent Reiner was aware of the alleged
misappropriation of campaign funds. 1/6/03 T 10-11, 18-20. In denying
the defendant's motion for a Franks hearing, the district court stated:
What those witnesses were going to say or are going to say should have
been the subject of affidavits and the subject of submissions so that
the Court could review them so that the government could have reviewed
them and then there would have been a basis for the Court to make a
determination on a preliminary basis . . . . There's no -- There's
nothing in this record, other than your representations at this time, as

to the details or as to what constituted misconduct or alleged
misconduct on the part of the government with respect to the seeking of
the wiretap application . . . and it seems to me that it's reckless on
your part, Mr. Bowman, to make these kinds of allegations unsupported by

affidavit or otherwise, at this late juncture. 1/6/03 T 21. B. Governing

Law and Standard of Review 1.
Overview of Title III Statutory authorization for federal law
enforcement officials to intercept wire, oral and electronic
49 communications is found in Title III of the Omnibus Crime Control and

Safe Streets Act of 1968, 18 U.S.C. 2510-2520, commonly called "Title
III." The strict warrant requirements of Title III provide that before
issuing a wiretap order, the district court must find: 1. Probable cause

to believe that an individual is committing, has committed, or will
commit one of a list of specified crimes, 18 U.S.C. 2518(3)(a); 2.
Probable cause that communications concerning that offense will be
obtained through the interception, 18 U.S.C. 2518(3)(b); 3. Normal
investigative procedures have been tried and have failed or reasonably
appear to be unlikely to succeed or be too dangerous if tried, 18 U.S.C.

2518(3)(c); and 4. Probable cause that the facilities from which, or
place where, the communications are to be intercepted are being used in
connection with the commission of the offense, 18 U.S.C. 2518(3)(d). The

warrant must also contain a particular description of the type of
communication sought to be intercepted and a statement of the offenses
to which the communication relates. 18 U.S.C.
2518(4)(c). The warrant must not allow the interception to continue
longer than is necessary
50 to achieve the objective of the authorization, and in any event not
longer than 30 days, 18 U.S.C. 2518(5), and the warrant must require the

interception be conducted in a way that minimizes the interception of
calls not subject to interception by Title III. Id. The elaborate Title
III requirements address the probable cause and particularity
requirements of the Fourth Amendment. "Surveillance that is properly
authorized and carried out under Title III complies with the fourth
amendment." United States v. Bianco, 998 F.2d 1112, 1121 (2d Cir. 1993);

see also United States v. Donovan, 429 U.S. 413, 429 (1977) (dictum);
United States v. Tortorello, 480 F.2d 764, 772-75 (2d Cir. 1973). 2.
Persons Whose Communications May Be Intercepted Section 2518 requires
the Government to identify in its application "the person, if known,
committing the offense and whose communications are to be intercepted."
18 U.S.C. 2518(1)(b)(iv). Similarly, the order of authorization must
specify "the identity of the person, if known, whose communications are
to be intercepted." 18 U.S.C. 2518(4)(a).  These provisions do not
require the Government to identify every person whose calls may be
intercepted. Rather, "Title III requires the naming of a person in the
application or interception order only when the law enforcement
authorities have probable cause to believe that the individual is
‘committing the offense' for which the wiretap is sought." United States

v. Kahn, 415 U.S. 155 (1974).
9 Section 2516 was amended in 2003 to include 2425 as an enumerated
offense. See PROTECT Act, Pub. L. 108-21 201, Apr. 30, 2003, 117 Stat.
659. 51 3. Evidence of Other Crimes Not Specified in 2516 or Warrant
Title III allows the Government to seek authorization to conduct
electronic surveillance of specified persons in order to investigate
specified crimes, which are set forth at 18 U.S.C. 2516.  Although 18
U.S.C. 242 (deprivation of civil rights under color of law) and 2425
(use of an interstate facility to transmit information about a minor in
connection with sex crimes) were not among the crimes specified in 2516
at the time of the present wiretap,9 Title III clearly contemplates that

law enforcement officers may hear conversations relating to other crimes

not specified in 2516 and not authorized in the wiretap warrant. Section

2517(5) expressly allows the Government to use evidence of
non-specified, nonauthorized offenses, often referred to as "other
crimes," when such evidence is obtained during the course of a wiretap
investigation of a specified authorized offense. In order to use this
evidence, however, 2517(5) requires the Government to make an
application to the district court "as soon as practicable." Before
other-crimes evidence may be used, the district court must make a
finding that the communications in question "were otherwise intercepted
in accordance with the provisions of this chapter." Id.
52 Construing 2517(5), this Court has stated that "should the law
enforcement officer, in the course of conducting the authorized
interception, come across communications relating to offenses other than

those specified in the order of authorization or approval, he must
obtain the authorization or approval of a court of competent
jurisdiction as soon as practicable before the communications might be
used in connection with the unspecified offense." United States v.
Masciarelli, 558 F.2d, 1064, 1066 (2d Cir. 1977). Following a discussion

of 2517(5) in Masciarelli, the Court concluded that "Congress intended
that judicial approval of the interception of evidence relating to
non-authorized offenses might retroactively be granted pursuant to
2517(5) upon a showing that ‘the original order was lawfully obtained,
that it [was] sought in good faith and not as a subterfuge search, and
that the communication was in fact incidentally intercepted during the
course of a lawfully executed order.'" Id. at 1068 (quoting S. Rep.
1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.C.C.A.N. 2112, 2189).
See also United States v. McKinnon, 721 F.2d 19, 22-23 (1st Cir. 1983)
(holding that "incidental" interception of wire communications relating
to offenses not authorized need not be unanticipated or inadvertent);
United States v. D'Aquila, 719 F. Supp. 98, 111-112 (D. Conn. 1989);
United States v. Aloi, 449 F. Supp. 698, 722 (E.D.N.Y. 1977). In sum,
2517(5) permits a district court to issue an amended order authorizing
the use of communications relating to crimes that could not have been
investigated under an original order.  See In re Grand Jury Subpoena
Served on John Doe, 889 F.2d 384, 387 (2d Cir. 1989).
53 4. Minimization Requirements Title III requires that electronic
surveillance "shall be conducted in such a way as to minimize the
interception of communications not otherwise subject to interception
under this chapter . . . ." 18 U.S.C. 2518(5). Title III does not forbid

electronic surveillance monitors from intercepting "all nonrelevant
conversations, but rather instructs the agents to conduct surveillance
in such a manner as to ‘minimize' the interception of such
conversations." Scott v. United States, 436 U.S. 128, 140 (1978). The
Government bears the initial burden of establishing that minimization
requirements were met. United States v. Cirillo, 499 F.2d 872, 811 (2d
Cir. 1974).  To determine whether monitoring agents have properly
minimized calls, courts must objectively assess the reasonableness of
their conduct, based on the facts known to the agents at the time. See
Scott, 436 U.S. at 137. When determining whether monitors acted
reasonably, courts should consider the circumstances of the electronic
surveillance. Id. at 140. Whether minimization should have occurred
requires an assessment of the reasonableness of the interceptions in
light of the purpose of the wiretap and the totality of the
circumstances. United States v. Napolitano, 552 F. Supp. 465, 476
(S.D.N.Y. 1982). Minimization may be more difficult, and more
surveillance may be permitted, where the investigation focuses on a
widespread conspiracy. Scott, 436 U.S. at 140; United States v.
Gotti, 42 F. Supp.2d 252, 268 (S.D.N.Y. 1999). The reasonableness of the

Government's minimization efforts is evaluated in light of the
circumstances existing at the time of the
54 interceptions, "not with the benefit of hindsight." See United States

v. Clemente, 482 F. Supp. 102, 109 (S.D.N.Y. 1979), aff'd, 633 F.2d 207
(2d Cir. 1980). 5. Franks Hearing Under Franks v. Delaware, 438 U.S. 154

(1978), and its progeny, the fruits of a search may be suppressed if (1)

the warrant contains a material false statement or a material omission;
(2) the affiant on the warrant made the false statement or omission
knowingly and intentionally, or with reckless disregard for the truth;
and (3) the content of the affidavit, setting aside the material false
statement or material omission, was insufficient to establish probable
cause. See Bianco, 998 F.2d at 1125. The Franks standard is applicable
in Title III cases. Id. at 1126. The Supreme Court has recognized that
in rare cases, it may be appropriate to conduct a hearing to test the
accuracy and completeness of a search warrant affidavit. However, before

a defendant can gain such a full-fledged evidentiary hearing, he must
make "a substantial preliminary showing that a false statement knowingly

and intentionally, or with reckless disregard for the truth, was
included by the [officer] in the warrant affidavit." Franks, 438 U.S. at

155-56 (emphasis added). This substantial preliminary showing "must be
supported by more than a mere desire to cross-examine[,] . . . [but
instead] must be accompanied by an offer of proof." Id. at 171. Franks
does not require that all statements in an affidavit be true; it simply
requires that the statements be ‘believed or appropriately accepted by
the affiant as true.'" United States v. Campino, 820 F.2d 588, 592 (2d
Cir. 1989)
55 (quoting Franks, 438 U.S. at 165). Allegations that amount to
"negligence or innocent mistake are insufficient" to satisfy the
required showing. Id. To demonstrate intentional wrongdoing or
recklessness, there must be evidence that the officer "‘in fact
entertained serious doubts as to the truth of his' allegations . . . and

[a] factfinder may infer reckless disregard from circumstances evincing
‘obvious reasons to doubt the veracity' of the allegations." United
States v. Williams, 737 F.2d 594, 602 (7th Cir. 1984) (quoting St. Amant

v. Thompson, 390 U.S. 727, 731 (1968)). Finally, a defendant is entitled

to a hearing only if he shows that the alleged false statements or
omissions were necessary to the finding of probable cause. Franks, 438
U.S. at 156, 171-72. 6. Standard of Review This Court has generally held

that "[w]hen reviewing rulings on motions to suppress, we examine the
evidence before the district court in the light most favorable to the
government, and will disturb factual findings only when they are clearly

erroneous." United States v. Fields, 113 F.3d 313, 319 (2d Cir.  1997).
The district court's legal conclusions will be reviewed de novo. See
id.; United States v. Rodriguez, 786 F.2d 472, 476 (2d Cir.
1986) (reviewing district court's order to suppress Title III evidence).

More specifically, "[i]n reviewing a ruling on a motion to suppress
wiretap evidence, we accord deference to the district court because
‘[t]he role of an appeals court in reviewing the issuance of a wiretap
order . . . is not to make a de novo determination of sufficiency as if
it were
56 a district judge, but to decide if the facts set forth in the
application were minimally adequate to support the determination that
was made.'" United States v. Miller, 116 F.3d 641, 663 (2d Cir. 1997)
(quoting United States v. Torres, 901 F.2d 205, 231 (2d Cir. 1990)
(internal quotation marks omitted)); see also United States v. Diaz, 176

F.3d 52, 109 (2d Cir. 1999). C. Discussion Although the defendant
does not appear to be challenging the district court's probable cause
determination for the seven orders of Title III authorization, he does
raise a variety of challenges to the district court's decision of
February 13, 2003, denying his motion to suppress intercepted telephone
conversations between himself and Jones and all derivative evidence. For

the reasons that follow, each challenge is meritless. 1. The
District Court Properly Ratified the Interception of Calls Relating to
Sex Crimes Under 2517(5) The defendant's primary argument -- that
the district court was not authorized by 2517(5) to ratify interception
of calls relating to sex crimes, because 2516 did not specifically
enumerate 242 and 2425 as offenses for which electronic surveillance may

be authorized -- has been squarely rejected by this Court. In a
case not cited by the defense, In re Grand Jury Subpoena Served on John
Doe, 889 F.2d 384, 387 (2d Cir. 1989),
10 The defendant also argues that because the intercepted conversations
in question were intrastate communications between himself and Jones,
they could not form the basis for violations of 2425. For the reasons
set forth in Part I, supra, this argument in unavailing.
Regardless of the court's decision on the jurisdictional issue, however,

the defendant's conversations would have been disclosable in any
event to state authorities pursuant to the district court's order of
disclosure. (The first application and order also listed possible state
crimes. SA 774-75 7, 783 5.) 57 this Court held "that ‘other' offenses
under Section 2517(5) may include offenses, federal as well as state,
not listed in Section 2516 so long as there is no indication of bad
faith or subterfuge by federal officials seeking the amended
surveillance
order." (Emphasis added.) The Doe court explained "that Congress
intended that amended orders under Section 2517(5) could encompass
federal crimes not listed in Section 2516. The Senate Report
accompanying Section 2517(5) states that ‘other' offenses under that
section
‘need not be designated offenses,' an apparent exemption from the
requirement that the offense be among those designated in the
Section 2516 list." Id. (citation omitted). Cf. United States v.
Tortorello, 480 F.2d 764, 781-783 (2d Cir. 1973) (upholding an amended
order under 2517(5) even though offenses regarding which evidence was to

be used -- federal securities law violations -- were not among
offenses listed in Section 2516).10

58 The district court correctly made a factual finding that the
Government had acted in good faith, because it did not expect to
intercept
conversations relating to the sex crimes that were ultimately uncovered.

As the Court can see from its own examination of the transcripts
(JA 141- 359), all of the calls between Jones and the defendant were
exceedingly brief. At the time, these calls appeared to be about
arranging consensual sexual encounters between the defendant and Jones
and/or other adult women. Although immoral, this behavior was
neither federally criminal nor (for the defendant) unusual. The
defendant and Jones never expressly described their illegal activity
regarding
the sexual abuse of minors. SA 1082-85. Even the conversation between
the defendant and Jones on July 9, 2001, in which Jones
identified one of the minor girls by name and age, was, on its face and
standing alone -- and in the absence of any mention of proposed
sexual activity -- not enough to establish probable cause to believe
that the defendant and Jones were engaged in criminal activity. By
that point in the investigation, however, the Government had enough
knowledge regarding the defendant's sexual deviancy (including his
sexual relationship with a 16-year old girl in June 2001, SA 692-95,
1084 6) to suspect that he might actually sexually abuse a nine-year
old girl, and so the Government informed the Court of the possibility.
It was not until July 13, 2001, however, that the truth was flushed
out following the pretext call to the defendant and the defendant's
incriminating conversations with Jones. Not until July 21, 2001, when
the minor girls were interviewed, was Special Agent Reiner's suspicion
59 confirmed that the defendant had sexually abused them. SA 1086 20.
The defendant's claim, that the Government unreasonably
delayed in notifying the court of the calls between Jones and the
defendant, is unusual because it effectively blames the Government for
not recognizing at an earlier date the full extent of his depravity. Yet

the case agent, Special Agent Reiner explained in the suppression
proceedings that the Government had not been aware of the defendant's
sex crimes: Before July 13, 2001, the investigation of Giordano
was focused on political corruption in the City of Waterbury. To the
best of my knowledge, no member of the investigative team believed
or had any reason to believe that Giordano was engaging in sexual acts
with minors. During the investigation following Giordano's arrest, no
one I have spoken with, other than Guitana Jones, suspected or had
knowledge that Giordano was having sex with minors. SA 1080
(affidavit of Mar. 4, 2002); see also SA 1085 19. The defendant offered
no evidence to rebut this affidavit. Accordingly, the defendant has
failed to show that Judge Nevas clearly erred in finding that the
Government did, in fact, act in good faith. See United States v.
Williams,
205 F.3d 23, 30 (2d Cir. 2000) (reviewing district court's determination

regarding subjective good faith of agents accused of misconduct
for
60 clear error); Buie v. Sullivan, 923 F.2d 10, 12-13 (2d Cir. 1990)
(same). Given that finding, the defendant's challenge to the 2517(5)
order must fail. Even if the Court were to find that the Government had
violated 2517(5), "[s]uppression is not the necessary or, even, the
usual remedy for such a violation." United States v. D'Aquila, 719 F.
Supp. 98, 112 (D. Conn. 1989). In D'Aquila, the district court expressly

found that the Government's 2517(5) application was lacking in detail
and "fail[ed] to provide the approving judge with any real opportunity
to pass on the validity of the interception in question, as required by
Section 2517(5)." Id. Nevertheless, the district court denied the
defendants' suppression motion, finding, in light of the full record,
"that only the technical requirements of Section 2517(5) and not its
purposes were violated by the filing of an deficient application." Id.
at 113. In the present case, the defendant has not claimed that the
Government's 2517(5) application was somehow deficient or that the
Government withheld relevant information from the district court in
that application. His argument can only be that the Government somehow
acted in bad faith in seeking authorization to use and disclose
the evidence of the defendant's sexual abuse of the minor victims. For
the reasons set forth above, there is simply no factual basis for this
argument. Finally, the defendant challenges (Def. Br. 76-78) the
district court's invocation of the plain-view doctrine, first
articulated by
the Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443 (1971).
That doctrine permits law enforcement officers lawfully executing a
search
61 warrant to seize evidence that is in plain view, even where the
evidence does not relate to the crimes for which the warrant was
originally issued. The defendant's claim is misplaced. As this Court has

recognized, 2517(5) is a statutory application of the plain view
doctrine. See United States v. Masciarelli, 558 F.2d 1064, 1066 (2d Cir.

1977) ("[W]here a law enforcement officer lawfully engaged in a search
for evidence of one crime inadvertently comes upon evidence of another
crime the public interest militates against his being required to ignore

what is in plain view."). See also United States v. Baranek, 903 F.2d
1068, 1071 (6th Cir. 1990); United States v.
Ramirez, 112 F.3d 849, 851 (7th Cir. 1997); United States v. Couser, 732

F.2d 1207, 1210 (4th Cir. 1984); United States v. Cox, 449 F.2d
679, 686 (10th Cir. 1971). Because the district court properly applied
2517(5) and Masciarelli, it properly permitted the Government to use
the evidence of the Giordano-Jones telephone calls. 2. The Wiretap Order

Authorized the Government To Intercept Conversations Between
the Defendant and Jones, and the Government Properly Minimized Its
Interceptions In conducting its investigation of political corruption in

Waterbury, the Government fully complied with the minimization
requirements set forth in Title III and included in the district court's

orders
of authorization. See Orders of Authorization, SA 75-76, 172-73, 234-35,

62 314-15, 425-26, 577-78, 741-42. The defendant's contentions, that
agents violated their minimization requirements and exceeded the scope
of the wiretap by monitoring calls between Jones and the defendant, is
meritless. The agents properly minimized by limiting their monitoring to

relevant calls. See Scott, 436 U.S. at 140. As the district court held,
conversations between the defendant and Jones "were directly relevant to

the government's corruption investigation," because "any evidence
revealing that Giordano was receiving bribes and then disbursing the
money to a network of prostitutes, such as Jones, would tend to show
that he was abusing his public office for improper and illegal gain."
SPA 13. Accordingly, there was "probable cause to authorize the
government's surveillance of telephone conversations between Giordano
and Jones." SPA 13-14. As a result, FBI monitors were not obligated to
minimize them until such time as they determined that the calls did not
relate in any way to the purposes for which electronic monitoring had
been authorized. (In fact, on five occasions, FBI monitors did minimize
intercepted communications between the defendant and Jones.) GSA 26-27.
Moreover, in assessing the reasonableness of the minimization, a
reviewing court must consider whether "the agents devised a reasonable
means of limiting interception, and whether they utilized those
safeguards in good faith." United States v. Hinton, 543 F.2d 1002, 1012
(2d Cir.
1976). Special Agent Reiner's Affidavit demonstrates that such
procedures were in place, and that the monitors were made aware of those

procedures and
63 were directed to follow them. SA 1086-90. The defendant has not
rebutted or even questioned these facts. This Court has held that even
where the vast majority of intercepted communications, including many
that were not relevant to the investigation, were not minimized, there
was no violation of the minimization requirement. In United States v.
Manfredi, 488 F.2d 588 (2d Cir. 1973), this Court upheld the
minimization procedures that resulted in the monitoring and recording of

all calls in a complex, far-flung narcotics investigation.
Noting that the Government had "made a prima facie showing of compliance

with the minimization provision," the Manfredi Court held that
"[w]e do not believe that the statute goes further than to require that
the methods used to effect minimization be in good faith and
reasonable." Id. at 600. In the present case, the Government has made a
prima facie showing of compliance with the minimization
requirement. Finally, all of the intercepted calls between the defendant

and Jones were less than two minutes in duration, and so these
calls were "self-minimizing." SPA 15 (finding that Government
"intercepted 151 calls between Giordano and Jones or in which Giordano
made
  reference to Jones. Of those 151 calls, 149 were less than two minutes

in duration. Jones was not a party to either of the two calls which
lasted longer than two minutes."). This Court has held that two minutes
is presumptively "too brief a period for an eavesdropper even with
experience to identify the caller and characterize the conversation,
especially under the circumstances" of a widespread
11 Accord United States v. Willis, 890 F.2d 1099, 1102 (8th Cir. 1989);
United States v. Mansoori, 304 F.3d 635, 646-648 (7th Cir. 2002);
Napolitano, 552 F. Supp. at 476; see also United States v. Hinton, 543
F.2d 1002, 1012 (2d Cir. 1976) ("Many of the calls which seemed at
the outset to involve purely personal matters later turned out to be
[crime] related . . . . [T]here was no way to frame screening
instructions so as to avoid the taping of some innocent conversation.").

64 conspiracy. United States v. Capra, 501 F.2d 267, 275-76 (2d
Cir. 1974) (internal quotation and citation omitted).11 The defendant
makes no attempt to rebut the district court's finding that the
defendant's access to ready cash for spending on narcotics and
prostitutes was probative of whether he was, in fact, receiving corrupt
payments. Instead, he simply claims, in a novel variant of an estoppel
argument, that the Government itself did not regard the
conversations between the defendant and Jones as relevant to its
corruption investigation. As proof of this, he points (1) to the fact
that
the first intercepted call between the defendant and Jones was labelled
by the monitoring agent as "non-pertinent," and (2) to the fact
that Jones was never listed in the Government's Title III applications
as a named interceptee. Neither fact is relevant. With respect to the
first point: It makes no difference that, two days after the inception
of the wiretap, the agent who happened to be monitoring the first
intercepted call between the defendant and Jones did not deem it
pertinent. As the transcripts reflect, JA 141-359,
65 the vast majority of telephone calls were exceedingly brief, and
their purpose was not always readily evident. The pertinence of the
calls that were intercepted must be judged on their own merits, and as
the affidavit of Special Agent Reiner explained during the
suppression hearings, the investigative team regarded the defendant's
cash-forsex relationship with a prostitute to be probative of the
defendant's illicit access to cash. SA 1080. As to the second point,
Title III does not require the Government to identify in its application

every person whose communications may be intercepted, but only "the
person, if known, committing the offense and whose
communications are to be intercepted." 18 U.S.C. 2518(1)(b)(iv)
(emphasis added). "Title III requires the naming of a person in the
application or interception order only when the law enforcement
authorities have probable cause to believe that the individual is
‘committing the offense' for which the wiretap is sought." United States

v. Kahn, 415 U.S. 155 (1974). See also United States v. Principie,
531 F.2d 1132, 1136-37 (2d Cir. 1976) (holding that a person must be
named in a wiretap warrant only when there is probable cause to
believe that he is involved in the crime under investigation). Because
there was no basis for concluding that Jones herself was committing
any crime other than simple prostitution, T 1036-37 -- which is not a
federal crime -- the Government did not violate 2518(1)(b)(iv) by
failing to identify her as a named interceptee. In any event, the
failure to identify in a Title III application every person expected to
be
engaging in criminal conversations is not a ground for suppression of
the evidence obtained through that wiretap. See United
12 In addition to rebutting the defendant's argument that the Government

was not really interested in his conversations with Jones for
purposes of the corruption investigation, the disclosure of the Jones
intercepts to the (continued...) 66 States v. Donovan, 429 U.S. 413,
436 & n.25 (1977); Miller, 116 F.3d at 664. The defendant notes (Def.
Br. 66) that some of the Government's Title III applications
identified as interceptees other women with whom the defendant was
carrying on sexual relationships, but did not identify Jones as an
interceptee. These other women, however, were identified only after the
Government had probable cause to believe that they were
engaging in federal criminal conduct, such as purchasing cocaine for the

defendant. SA 263, 284-86. Notwithstanding the fact that Jones
and some of the other women not engaging in federal crimes were not
named interceptees, the Government, through its progress reports,
notified the district court of at least 17 intercepted conversations
between the defendant and various women, including Jones (whose
surname the Government then thought to be Graham). SA 1082-85
(affidavit, summarizing those conversations); SA 702 (seventh wiretap
affidavit, mentioning Jones as having received money from defendant in
June 2001 for sexual liaisons). These conversations related to sex,
money, prostitution, and narcotics and were properly found by the
district court to be relevant to the Government's corruption
investigation because it tended to show his access to bribe money. SPA
13.12
12 (...continued) district court reveals the Government's good faith
effort to comply with the requirements of Title III. The level of
judicial supervision is a factor to be considered on a minimization
claim. See United States v. Santoro, 647 F. Supp. 153, 161 (E.D.N.Y.
1986), aff'd, 880 F.2d 1319 (2d Cir. 1989); United States v. Cale, 508
F. Supp. 1038, 1041 (S.D.N.Y. 1981) (judicial review of progress
reports).
67 3. The District Court Correctly Declined to Hold a Franks Hearing The

district court correctly declined to hold an evidentiary hearing
under Franks v. Delaware in response to the defendant's claim that the
Government failed to disclose the adverse bias of a cooperating
witness whose statements were included in the wiretap application. The
defendant alleges that Special Agent Reiner's February 18, 2001,
affidavit omitted a material fact in that it failed to disclose that Tim

Longino, identified in the affidavit as CW-1, had a "motive to hate
Giordano" and a "motive to lie about Giordano." Def. Br. 86. According
to the defendant, Longino had been active in the defendant's
mayoral and senatorial campaigns, "but was discharged by Giordano from
his duties when it was discovered that he had misappropriated
more than $50,000 in campaign funds." Def. Br. 79. The defendant claims
that had Longino's alleged impropriety been disclosed in Special
Agent Reiner's February 18, 2001, affidavit, the district court would
have discounted any information provided by
68 CW-1 and would not have found probable cause to issue the Title III
order. This claim fails for several reasons. First, the defendant
offered no support for the accusation that Longino had "misappropriated"

funds (Def. Br. 82), aside from vague statements in a brief affidavit
that simply referred to an article from the Waterbury Republican-
American, which in turn makes no mention of misappropriated funds. SA
1060-69, 1074-75. This is hardly the "substantial preliminary showing"
required by Franks to obtain an evidentiary hearing.
"Unsupported conclusory allegations of falsehood or material omission
cannot support a Franks challenge; to mandate a hearing, the
[defendant] must make specific allegations accompanied by an offer of
proof." Velardi v. Walsh, 40 F.3d 569, 573 (2d Cir. 1994). Second,
the defendant offered no evidence whatsoever that Special Agent Reiner
was aware of any wrongdoing by Longino – much less that he
recklessly or deliberately failed to disclose such wrongdoing to the
district court. To the contrary, Special Agent Reiner explained by
affidavit how he took great care to ensure that there was no material
information implicating Longino's credibility that should be included in

the wiretap application. GSA 21-25. Third, Longino's statements were
unnecessary to the finding of probable cause, and hence any
hypothetical omission would not have warranted suppression. See Franks,
438 U.S. at 156, 171-72. The original wiretap affidavit itself
reflects substantial factual information
69 provided by three other cooperating witnesses who corroborated
Longino. SA 33-58, GSA 25-26. Finally, it is worth noting that in a
statement to FBI agents made on July 23, 2001, the defendant himself
substantially corroborated the information that Longino had
provided to Special Agent Reiner and that was included in the wiretap
application. GSA 25-26. In light of this, it is disingenuous for the
defendant to claim on appeal that the information obtained from Longino
was unreliable. III. The Defendant Was Properly Convicted of
Violating the Minor Girls' Rights Under 18 U.S.C. 242 A. Relevant Facts
Count 1 of the superseding indictment charged that, between
November 2000 and July 2001, the defendant, while acting under color of
the laws of the State of Connecticut, did willfully deprive Victim
1 of the rights and privileges secured and protected by the Constitution

and laws of the United States, that is the right not to be deprived
of liberty without due process of law, which includes the right to be
free from aggravated sexual abuse and sexual abuse, by coercing and
forcing Victim 1, who had not attained the age of 12 years, to engage in

fellatio and
70 genital contact with GIORDANO and by touching Victim 1's genitals and

breasts, resulting in bodily injury to Victim 1. JA 4. Count 2 contained

identical charges with respect to Victim 2. JA 5. At trial, Jones
testified that she arranged to bring the child victims to the defendant,

at his request, to engage in sexual conduct with him. Jones explained
that the defendant would pay her for these encounters, and that she used

the money to buy drugs. On two or three occasions, Jones brought the
girls to the Mayor's Office for these encounters, including once on a
holiday when City Hall was closed to the public. GA 82-84, 89-94
(testimony of Jones), GSA 62-65 (testimony of Victim 1)]. On two or
three other occasions, Jones brought one of the children to perform oral

sex on the defendant while he drove his cityprovided police cruiser. GA
104-06. After each of the sexual encounters between the defendant and
the children, the defendant warned Jones in a nice, calm voice "to make
sure the kids don't tell anyone" or else Jones would go to jail. GA
89-90, 109, 177-78. Jones would give the girls a look that said she was
going to beat them if they said anything. When asked why she did this,
Jones responded: A.  Because I'll get in trouble if they told. Q.
Trouble by whom? A. By him [the defendant], probably. Q. And how were
you going to get in trouble by him?
71 A. I'll go to jail. Q. He told you you were going to go to jail? A.
Yeah, he told me I'll go to jail. I'm there now. GA 90-91. The defendant

told Jones, in front of one of the children, "You keep quiet or you'll
go to jail." GA 113. The defendant also warned the children that they
would get in trouble if they told anyone. Even after the state took
custody of the two children, the defendant warned Jones that "if his
name was to be mentioned, [she] might as well take a knife and slice
[her] throat." GA 137. The defendant also conveyed to Jones his control
over the Waterbury police. Jones testified that defendant "had a lot to
do with the police, that he worked with the police, too. You know, he
was their boss. I took it like that. He had control of what the police
does, so he would be there with them at the crime scene." GA 131. The
defendant was so involved in police work, on a day-to-day basis, that
once when he wanted an excuse to steal away from his home to a sexual
episode with one of the children, he had Jones phone his residence and
pretend to be the police calling with an emergency. GA 127, T 980. The
defendant had so impressed Jones with his control over the police that
when she was ultimately arrested by FBI agents, she asked, "Did Phil
send you," because she assumed that the defendant must have sent them to

get her. GA 139, 231.  The children testified about their sexual abuse
at the hands of the defendant, describing in detail the acts they were
made to perform.
Each testified that, at Jones'
72 direction, they frequently had to perform oral sex on the defendant
in view of Jones and the other child, until he ejaculated on the carpet.

GSA 54-55 (Victim 2); 141- 45(Victim 1). The defendant would put his
hand inside the victims' clothes, touching their chests and vaginas. GSA

60-62, 144-46. Sometimes the girls were forced to perform sexual acts
simultaneously on the defendant. GSA 66-67, 147-48.  Victim 2 testified
that these acts hurt her throat. GSA 57, 87. Victim 2's eyes hurt. GSA
150-51. The girls testified, as had Jones, that they were brought at
times to City Hall, where they were forced to engage in sexual activity
with the defendant in his office. GSA 58, 62-65, 133-34, 146. Both
victims testified that when they went to the Mayor's Office, there was
no one else around. GSA 65, 133-36.  They also testified that they were
sexually abused by the Mayor at various other locations. GSA 68-73, 89,
126-31, 135-36, 146. The girls testified that they lived in fear of the
defendant, based on his being the Mayor of Waterbury. One of the girls,
who was ten years old when the abuse began, "thought that he could rule
everybody" in Waterbury as the Mayor: "I mean like he's the boss of
everyone." GSA 51, 92-93. She was too frightened to tell anyone of these

sexual encounters, because she was afraid of the defendant and Jones:
"She would tell me she would punch me in the mouth, and he would say not

to tell or something would happen." GSA 56, 78-79. The girl was afraid
that the defendant might hurt her or her family, including the other
victim. GSA 86-87, 92-93.
73 The younger victim, who was eight years old at the time the abuse
began, testified that the defendant, as Mayor, "[w]atches over us,
like God," and can see everything, like God. GSA 125. She was afraid of
the defendant, and thought that he would put her in jail if she told
anybody about her encounters with him. GSA 149-50. At the close of
evidence, the defendant moved for a judgment of acquittal on the
civil rights counts, arguing that there was insufficient evidence that
the defendant acted under color of law. The court denied the motion,
noting the defendant's use of government facilities in connection with
the abuse, and his threats and intimidation of both Jones and the
children. GSA 23-24. The court reaffirmed its ruling after trial in
writing. SPA 21-22. B. Governing Law and Standard of Review Section 242
of Title 18 of the United States Code provides criminal sanctions for
"[w]hoever, under color of any law . . . willfully subjects any person
in
any State . . . to the deprivation of any rights . . . secured or
protected by the Constitution or laws of the United States . . . ." The
statute "mak[es] it criminal to act (1) ‘willfully' and (2) under color
of law (3) to deprive a person of rights protected by the Constitution
or
laws of the United States." United States v. Lanier, 520 U.S. 259, 264
(1997). The Supreme Court has "broadly interpreted the color of law
requirement, concluding that ‘[m]isuse of power, possessed by virtue of
state law and made possible because the wrongdoer is clothed
with the authority of state law is action taken under color of state
law.'" United
74 States v. Walsh, 194 F.3d 37, 50 (2d Cir. 1999) (quoting United
States v. Classic, 313 U.S. 299, 326 (1941)); see also West v. Atkins,
487 U.S. 42, 49 (1988). A defendant acts under color of law even when he

exceeds his lawful authority under law -- that is, when he acts simply
under "pretense" of law. See Screws v. United States, 325 U.S. 91, 111
(1945) (plurality opinion) ("Acts of officers who undertake to perform
their official duties are included whether they hew to the line of their

authority or overstep it."); Walsh, 194 F.3d at 52. To act under color
of state law "means the same thing in 242 that it does in the civil
counterpart of 242, 42 U.S.C. " -- that is, the same as "state action"
under the Fourteenth Amendment. United States v. Price, 383 U.S. 787,
794 n.7 (1966). With respect to its third prong, 242 "incorporate[s]
constitutional law by reference." Lanier, 520 U.S. at 265. The
Fourteenth Amendment to the United States Constitution provides that a
State may not "deprive any person of life, liberty, or property, without

due process of law." U.S. Const., amend XIV, 1. An individual's right to

bodily integrity is a central component of the "liberty" protected by
the Fourteenth Amendment. See Ingraham v.  Wright, 430 U.S. 651, 673-74
(1977); Rochin v. California, 342 U.S. 165, 172 (1952); see also Blouin
ex rel. Estate of Pouliot v. Spitzer, 356 F.3d 348, 359, 363 (2d Cir.
2004) (discussing immunity claims in relation to "federal liberty
interest[] of bodily integrity"). The standard of review for evidentiary

sufficiency claims is set forth in Part I.B above.

75 "Questions of constitutional interpretation are reviewed de novo."
United States v. Quinones, 313 F.3d 49, 60 (2d Cir. 2002); United States

v. Cruz-Flores, 56 F.3d 461, 463 (2d Cir.1995) ("We review the district
court's application of constitutional due process standards de novo.").
C. Discussion 1. There Was Sufficient Evidence That the Defendant Acted
"Under Color of Law" When He Sexually Abused the Two Minor Girls There
was ample evidence for the jury to conclude that the defendant's abuse
of his minor victims was "made possible only because [defendant was]
clothed with the authority of state law." Classic, 313 U.S. at 326. The
evidence shows that the two minor girls engaged in sexual acts with the
defendant at his request. Both girls testified that they knew that the
defendant was the Mayor of Waterbury, that he had authority over them
and the citizens of the city, and that they were afraid that he would
harm them and put them in jail, and that their family and mother/aunt
(Jones) would be harmed if they told anyone about the sexual acts. The
evidence shows that the sexual assaults occurred at the Mayor's office
at City Hall. The evidence also shows that the defendant abused the
girls at his private law office, his home, and at an apartment. Both
victims testified that they were afraid of the defendant and wanted the
abuse to stop.
Jones testified that the
13 The defendant concedes there was sufficient evidence that he engaged
in oral sex with the victims. Def. Br. 83. 76 defendant would
get angry if she could not bring the girls to him for sex. Furthermore,
the defendant utilized his mayoral privileges to facilitate his abuse of

the minor girls. As Mayor of Waterbury, the defendant had access to his
government office at City Hall where the sexual abuse took place
during hours when no one else was at the office. The defendant had
access to a police badge and cruiser (in which he abused one of the
victims), and called Jones from a murder scene where he was supervising
police activity and impressed upon Jones his control over the City
police. The defendant used a city-provided cell phone to arrange the
times and places at which he abused the two girls. The defendant
even had Jones call him, claiming to be the police, in order to afford
him an excuse to slip away from other engagements and abuse the
girls without arousing his family's suspicions. Being the Mayor
facilitated the defendant's sexual abuse of the two girls,13 and helped
him
keep his pattern of abuse from being detected and stopped. Thus, taking
the "totality of circumstances . . . and drawing all inferences in
favor of the government," defendant's assault of the two minor girls
fully meets the "‘under color of law' requirement." Walsh, 194 F.3d at
51. Indeed, the defendant's misuse of authority under color of law is
the kind of conduct prohibited by the
77 statute, and is consistent with the other kinds of cases in which
courts have found abuse of authority under color of law. See Walsh, 194
F.3d at 50-51; Monsky v. Moraghan, 127 F.3d 243, 246 (2d Cir. 1997)
(state judge who allowed his dogs to harass plaintiff while she sought
access to courthouse records at the courthouse could be liable under
1983); see also United States v. Tarpley, 945 F.2d 806 (5th Cir. 1991)
(deputy sheriff convicted under 242 for assaulting a man and claiming
"special authority" to do so "because he was a cop").
Moreover, courts of appeal have found liability under 42 U.S.C. 1983
against state actors who utilized their authority to "create the
opportunity to facilitate a rape or sexual assault." Griffin v. City of
Opa-Locka, 261 F.3d 1295, 1306 (11th Cir. 2001); Dang Vang v. Vang
Xiong X. Toyed, 944 F.2d 476, 479-80 (9th Cir.1991); Rogers v. City of
Little Rock, 152 F.3d 790 (8th Cir.1998). The ample evidence of
the defendant's sexual abuse of the two girls and his threats against
them if they told anyone of the abuse fully supports the "under color
of law" element of 242 convictions. The defendant contends (Def. Br. 87)

that his actions were motivated by personal reasons, and are
not actionable under 242. This contention lacks merit. Regardless of the

defendant's motive for assaulting the two girls, the facts show
that he acted under color of law. Courts routinely have upheld 242
convictions where, for example, state officers abused prisoners, even
though the beatings were personally motivated. See, e.g., United States
v. Christian, 342 F.3d 744, 750-51 (7th Cir. 2003) (on-duty police
officer beat prisoner in jail because of racial epithet); United States
v. Colbert, 172 F.3d 594, 596-97 (8th Cir. 1999) (off-duty police
officer who had
78 personal motivation for beating prisoner at jail and threatening to
arrest him every time he saw him in the future acted under color of
law). In the instant case, the fact that the defendant asserts he was
motivated by his own desires to abuse his minor victims does not
remove his conduct from the ambit of 242, especially given his threats
to jail and harm the girls and their family if they told anyone about
the abuse. The defendant, relying (Def. Br. 86-87) on Pitchell v.
Callahan, 13 F.3d 545 (2d Cir. 1994), argues that the testimony by the
girls as to their perceptions of his authority as Mayor is irrelevant to

whether he acted under color of law. The defendant's reliance is
misplaced. In Pitchell, this Court rejected a 1983 plaintiff's argument
that "center[ed]" on the victim's subjective reaction to the fact that
his assailant was a police officer (then off-duty), and relied on this
as the sole support for the contention that the assailant was acting
under color of law. 13 F.3d at 548-49. Pitchell stands only for the
simple proposition that when a defendant has not in fact taken
advantage of his official authority in violating a person's rights, a
victim's subjective perception to the contrary cannot supply the
requisite
state action. In the present case, the jury was entitled to conclude
that the victims' perceptions of the defendant's power had been
significantly influenced by his own actions. The defendant's conduct
must be analyzed in the context in which it occurred. The defendant
knew that he was making threatening statements to two girls, to both of
whom he had exhibited the trappings of mayoral power (including
the impressive mayoral office where he abused
14 Because "[t]he protections of the Constitution do (continued...) 79
them), and to a drug-addicted prostitute to whom he had
demonstrated his control over the Waterbury police. Cf. Monsky, 127 F.3d

at 246 (holding that judge acted under color of law when he
"implicitly invoked the power and prestige of his office") (emphasis
added). The two girls' testimony that they were abused, intimidated,
and believed the defendant to be "like God," overseeing and controlling
everything that happened in Waterbury, was highly relevant to the
question of whether he was acting under color of law. See Dan Vang, 944
F.2d at 479 (holding, in case where expert testifies that rape
victims, who were Hmong refugees from Laos, had been entirely reliant on

government aid and "in awe of government officials," that state
employee "used his government position to exert influence and physical
control over these plaintiffs in order to sexually assault them"); see
also Rogers, 152 F.3d at 798. 2. The District Court Properly Concluded
that the Child Victims Had a Constitutional Right To Be Free from
Sexual Abuse The defendant's argument (Def. Br. 93-96) that there is no
federal right to be free from sexual abuse is frivolous. In cases
arising under 42 U.S.C. 1983, courts have recognized that forcible
intercourse or fellatio falls squarely within the proscriptions of the
Fourteenth Amendment.14 See, e.g., Rogers, 152 F.3d 790 (holding
14 (...continued) not change according to the procedural context in
which they are enforced," court decisions interpreting constitutional
rights in civil 1983 cases are equally applicable to criminal 242 cases.

United States v. Reese, 2 F.3d 870, 884 (9th Cir.1993); United States v.

Bigham, 812 F.2d 943, 948 (5th Cir.1987). 80 that police officer
violated victim's due process right to bodily integrity by committing
rape); Wudtke v. Davel, 128 F.3d 1057, 1063 (7th Cir.1997) (holding that

facts showing school superintendent forced teacher to perform fellatio
supported substantive due process violation); Jones v. Wellham, 104 F.3d

620, 628 (4th Cir.1997) (recognizing that officer's forcible rape
violated victim's substantive due process rights); Bennett v. Pippin, 74

F.3d 578, 589 (5th Cir. 1996) (holding that sheriff's rape of murder
suspect violated her right to bodily integrity). Where, as here, a state

actor subjects a child to such sexual abuse, there is likewise no
question that the child victim's right to bodily integrity has been
grievously violated. See, e.g., Doe v. Claiborne County, Tenn., 103 F.3d

495, 506 (6th Cir.1996) ("a schoolchild's right to personal security and

to bodily integrity manifestly embraces the right to be free from sexual

abuse at the hands of a public school employee"); Doe v. Taylor Indep.
Sch. Dist., 15 F.3d 443, 451-52 (5th Cir. 1994) (en banc) (holding that
15-year-old student was deprived of substantive due process when
sexually molested by teacher), id.
("It is incontrovertible that bodily integrity is necessarily violated
when a state actor sexually abuses a
15 The defendant does not claim that he lacked "fair warning" that his
conduct violated the constitutional rights of his two minor victims.
In fact, the defendant himself agreed on cross-examination that "forcing

children to provide oral sex is a violation of their civil rights." GA
632. In any event, such a claim would lack merit. See, e.g., Lanier, 520

U.S. at 266-67 (describing "fair warning" standard for 242). Sexual
abuse of children is such a patent invasion of the right to bodily
integrity that one court has found it "ludicrous" to even suggest that
such
a right might not be "clearly established" for purposes of qualified
immunity analysis. See Stoneking, 882 F.2d at 727; see also Taylor
Indep. Sch. Dist., 15 F.3d at 455; Claiborne County, Tenn., 103 F.3d at
506-07. The Supreme Court has made clear that when a
constitutional right is "clearly established" for purposes of 1983
qualified immunity analysis, there has also been "fair warning" that
violation
of such a right will give rise to criminal liability under 242. Lanier,
520 U.S. at 270. 81 schoolchild."); Stoneking v. Bradford Area Sch.
Dist.,
882 F.2d 720, 727 (3d Cir.1989) (allegations that teacher coerced
student into performing sex acts were sufficient to constitute an
intrusion into the child's bodily integrity).15 Citing no authority, the

defendant nevertheless claims that the "‘right to be free from
‘aggravated sexual abuse and sexual abuse' exists only with respect to
offenses defined in Chapter 109A of Title 18 of the United States
Code." Def. Br. 94. This argument simply ignores the language of 242,
which punishes violations of rights "protected by the Constitution or
laws of the United
16 The defendant's brief mistakenly quotes the original indictment. Def.

Br. 93. 82 States," and the language of the superseding
indictment,16 which charged the defendant with violating the victims'
constitutional right to be free from sexual abuse. As explained
above, courts have uniformly recognized that individuals have a federal
constitutional liberty interest in being free of such abuse. The
defendant was not charged with violating the criminal laws in 18 U.S.C.
2241- 2244, and hence there was no need to establish any of the
jurisdictional elements peculiar to those statutes. IV. The District
Court Did Not Abuse Its Discretion in Its Evidentiary Rulings A.
Relevant
Facts Extramarital sexual activities. Because wiretapped calls captured
the defendant's conversations with Jones after he received the
anonymous call about his sexual abuse of the girls, a key component of
his testimony was an effort to explain away his nervousness in
those calls. On direct, he denied ever having touched the children, much

less having made them perform oral sex. GA 364-65. He claimed
that he was nervous only because he feared unfavorable news coverage of
his "unfaithful[ness]" to his wife by having a long-term
extramarital relationship with Jones. GA 366. He also expressed concern
that such news might jeopardize his efforts at obtaining a position
with the U.S. Department of Education. Id. The defendant repeatedly
testified that his
83 only concern was the possible media coverage about Jones giving him
oral sex, and the resultant fallout with his wife and job. GA 366,
371, 547, 549, 570, 579. On cross-examination, the Government challenged

the defendant's claim that he was simply concerned about a
sex scandal reaching the press. The defendant admitted that he had
handled an earlier press inquiry about his being found in a car with a
woman in a parking lot, and that his wife had sent a letter to a
newspaper as a result of that story. GA 469-70. Likewise, he conceded
that a media story had appeared some time ago about his having
supposedly fathered a child by Jones. GA 470-71. The defendant further
admitted during cross-examination that he had had sexual relations with
a number of women besides Jones. GA 483-87. Moreover, the
defendant admitted that, despite his professed worry that his
extramarital activities might be publicly disclosed, he would sometimes
allow
women who were complete strangers to watch Jones perform oral sex on
him. GA 486, 498. Threats by the Defendant. On direct, when the
defendant was asked whether he had ever threatened Jones or the children

with arrest, he responded broadly, "I would have no reason to
threaten a woman with anything." GA 361. On cross-examination, the
government probed this denial, confronting him with the intercepted
call in which he told Jones, after he received the anonymous call about
the sexual abuse: "If my name gets mentioned, you might as well
put a f_ing knife to your throat, I'm telling you right now." JA 340.
After denying that he intended this statement as a threat to Jones, he
then offered, "I have
84 never threatened anyone . . . . Anyone's life, no. No, I did not." GA

560-61 (emphasis added). Challenging this broad assertion, the
government then posed a series of questions that revealed that the
defendant threatened to kill a woman named Amy Cameron over a
debt with a person named Faith. GA 563. In response to another series of

questions, the defendant denied having threatened a person
named Mike O'Connor, or telling him, "You don't know how much you f_d me

on this. You f_k my family, I'll f_k your family." GA 565. The
defendant also denied having threatened a fellow city official, Pat
Mangini, who did not want to comply with the defendant's wishes, that
"I can do what I want, I'm the Mayor." GA 566. Availability of Cash. On
cross-examination, the defendant said that all of the previous
witnesses were wrong when they testified about the frequency of his
meetings with Jones and the girls, and volunteered that "[i]f it
happened five times a week, it's 50 a clip, it's $250 a week that I'd
been paying someone. That's a thousand dollars a month. I couldn't do
it." GA 499. He later repeated that he could not possibly have afforded
having Jones and the children come to him on a regular basis. GA
602. To challenge that testimony, the Government then questioned the
defendant with statements he had made to federal agents about
his receiving 15 to 20 cash payments ranging from $1,000 to $2,500 from
a city contractor named Joe. GA 602-04. Municipal Corruption
and the Defendant's Cooperation. During his direct testimony, the
defendant testified that he had been with federal agents before his
arrest on July 26, 2001, and that "we talked about
85 municipal corruption," and "for three days we talked about my house .

. . my trips . . . my acquaintances, my families, people
associated with the city." GA 377. When, as noted above, the Government
began asking the defendant about his receipt of gifts from
"Joe," the district court permitted the Government to inquire about
Joe's role as a contractor for the City of Waterbury. GA 606-25. The
court viewed the defendant's credibility as central to the case, and
noted that it was relevant for the jury to consider whether the
defendant's acceptance of gifts from city contractors violated the City
Charter, which the defendant had earlier testified that he had
sworn to uphold. GA 609. The court noted that to the extent that
cross-examination touched on municipal corruption, that issue had first
been raised by the defendant rather than the Government. GA 610. When
the defendant objected to any mention of corruption at closing
arguments, the court reiterated its earlier evidentiary finding: [the
defendant] volunteered, [the prosecutor] didn't, he volunteered while
you were conducting your direct examination that the only thing they
talked to him about was public corruption, and then he volunteered
that he was doing certain things for them in connection with that
investigation in terms of recorded telephone conversations . . . . All
of
that came out on direct examination for the first time. . . . But once
your client took the stand and volunteered this information, he was
fair game for cross-examination, because it raised, as [the prosecutor]
indicated, it bears
86 on his credibility. So he opened the door to this kind of
cross-examination . . . . JA 69. The Government invited an instruction
to the jury that the challenged testimony only went to his credibility
and was not evidence of other crimes. The defendant declined a limiting
instruction, asserting that a curative instruction would not work on the

issue of other women and the area of political corruption. JA 68. B.
Governing Law and Standard of Review Where a defendant takes the stand
at trial and "offers an innocent explanation [of events] he ‘opens the
door' to questioning into the truth of his testimony, and the government

is entitled to attack his credibility on crossexamination." United
States v. Payton, 159 F.3d 49, 58 (2d Cir. 1998); United States v.
Garcia, 936 F.2d 648, 653 (2d Cir. 1991).  "Once a defendant has put
certain activity in issue by offering innocent explanations for or
denying wrongdoing, the government is entitled to rebut by showing that
the defendant has lied." United States v. Beverly, 5 F.3d 633, 639 (2d
Cir. 1993) (citing United States v. Mills, 895 F.2d 897, 907 (2d Cir.
1990)). "The rationale behind this rule is not difficult to perceive,
for even if the issue injected is irrelevant or collateral, a defendant
should not be allowed to profit by a gratuitously offered misstatement."

United States v. Beno, 324 F.2d 582, 588 (2d Cir. 1963); cf. Walder v.
United States, 347 U.S. 62, 65 (1954) ("there is hardly justification
for letting the defendant affirmatively resort to perjurious testimony
in reliance on the Government's disability to challenge his
credibility").
87 On cross-examination, the government may also challenge the
defendant's credibility by offering specific instances of conduct "if
probative of truthfulness or untruthfulness." Fed. R. Evid. 608(b). The
admission of evidence pursuant to Rule 608(b) is subject to the
ordinary constraints of Rules 403 and 611. See United States v. Crowley,

318 F.3d 401, 416-17 (2d Cir. 2003). Thus, a judge may exclude
relevant evidence only if its probative value is substantially
outweighed by the danger of unfair prejudice. Fed. R. Evid. 403. "The
term
‘unfair prejudice,' as to a criminal defendant, speaks to the capacity
of some concededly relevant evidence to lure the factfinder into
declaring guilt on a ground different from proof specific to the offense

charged." Old Chief v. United States, 519 U.S. 172, 180 (1997). A
court should consider whether the danger of unfair prejudice may be
cured short of exclusion by the issuance of an appropriate limiting
instruction to the jury. See, e.g., United States v. Rosenwasser, 550
F.2d 806, 808-09 (2d Cir. 1977). Pursuant to Rule 608(b), it is proper
to crossexamine a witness about specific instances of conduct that are
probative of his truthfulness. The most obvious examples involve
making false or misleading statements. See, e.g., United States v.
Jones, 900 F.2d 512, 520-21 (2d Cir. 1990) (proper to impeach
regarding false statements on applications for employment, apartment,
driver's license, and loan, as well as on tax returns); United States
v. Sperling, 726 F.2d 69, 75 (2d Cir. 1984) (proper to impeach regarding

false credit card applications); Lewis v. Baker, 526 F.2d 470,
475-76 (2d Cir. 1975) (proper to impeach regarding false statements on
employment
88 application); United States v. Reid, 634 F.2d 469 (9th Cir. 1980)
(defendant properly cross-examined on a letter written to a government
agency in which he falsified name, occupation, name of business and
purpose in seeking information); United States v. Girdner, 773 F.2d 257
(10th Cir. 1985) (defendant properly asked about particulars of a ballot

fraud scheme). Such misconduct need not be criminal. Cf. Sperling, 726
F.2d at 75. A prior act can be probative of a witness's truthfulness
even if the act does not strictly involve falsehoods or deception. See,
e.g., United States v. Cusumano, 729 F.2d 380, 383 (6th Cir. 1984)
(proper to impeach regarding transfer of funds from business prior to
bankruptcy proceedings); Varhol v. National RR Pass. Corp., 909 F.2d
1557, 1566 (7th Cir.1990) (en banc) (per curiam) (proper to impeach in
regard to purchase of stolen railroad tickets because "people generally
regard stealing (and receiving and using stolen property) as acts that
reflect adversely on a [person's] honesty and integrity"); United States

v. Lambinus, 747 F.2d 592 (10th Cir. 1984) (defendant properly asked
about possessing stolen tools). A district court has broad discretion to

admit or exclude evidence and testimony, and so these rulings are
subject to reversal only where manifestly erroneous or wholly arbitrary
and irrational.  United States v. Yousef, 327 F.3d 56, 156 (2d Cir.
2003) (manifestly erroneous), cert. denied, 124 S. Ct. 353 (2003);
United States v.
Dhinsa, 243 F.3d 635, 649 (2d Cir. 2001) (arbitrary and irrational).

89 C. Discussion The defendant argues that the district court abused its

discretion in permitting certain cross-examination and, therefore,
denied him a fair trial. (Def. Br. 96-104). The court properly permitted

the defendant's impeachment in the four challenged areas: (1) his
threatening other people, after testifying that he never threatened
anyone; (2) his additional extramarital relationships, after testifying
only about his adulterous relationship with Jones and his supposed fear
that it would be publicly disclosed; (3) his receipt of money and
items from a city contractor, after volunteering that he could not have
afforded to pay for sex with Jones and the children; and (4) his
pre-arrest cooperation and corruption, after testifying that he spoke
with federal agents for three days before his arrest about municipal
corruption. Threats by the Defendant. The defendant opened the door to
cross-examination about his threatening others when he testified
on direct that he "would have no reason to threaten a woman with
anything." GA 361. Likewise, when on cross-examination he gratuitously
offered, "I have never threatened anyone," GA 560-61, the Government was

entitled to challenge that testimony -- and thereby to call his
credibility into question -- by confronting him with threats he had
directed at Amy Cameron, Mike O'Connor, and Pat Mangini. See Payton,
159 F.3d at 58; Beverly, 5 F.3d at 639. Moreover, the defendant's
threats to others were highly relevant to the civil rights charges,
which
turned in part on his repeated threats to Jones and the girls, see supra

Part III.A. Finally, the defendant's contention (Def. Br. 100) that
his
17 In any event, earlier in the trial, the defense had elicited the fact

that authorities had intercepted calls showing that the defendant had
been having sex with prostitutes and other women, besides Jones. See T
1044- 46 (cross-examination of Special Agent Reiner). 90
statement to Pat Mangini ("I'm the Mayor, I can do what I want") (GA
566) was not a threat was a question for the jury, and in any event
this statement was independently relevant to show the defendant's view
of his unchecked mayoral power -- power that he was charged
with abusing, in the course of violating the girls' civil rights.
Extramarital Sexual Activities. The court properly permitted
cross-examination
of the defendant on his adulterous relationships with women other than
Jones. On direct examination, the defendant sought to portray
himself as someone who only had one extramarital sexual relationship --
that is, with Jones -- suggesting that he had otherwise been
faithful to his wife. The Government properly exposed this as only a
partial and incomplete version of the truth by cross-examining him
about the existence of his other adulterous relationships. His ultimate
and reluctant admission to multiple adulterous relationships with
women seriously undermined the aura of honesty he sought to project on
direct ("I felt a need to testify here today because I wanted the
jury and the court to know the truth." GA 362), and showed him to be a
person willing to mislead the jury.17 In addition, the existence of
the defendant's other adulterous relationships seriously undermined his
claim
91 that, in the intercepted conversations, he was afraid only that the
press might report his sexual activities with Jones.  Cross-examination
regarding the defendant's numerous other relationships revealed that the

defendant did not claim a similar fear with respect to these other
women. His refusal to concede that the same media potential existed for
these other sexual relationships spotlighted the absurdity of his
explanation for his reaction to the pretext call. The jury could
therefore infer that the defendant was actually afraid that his criminal

sexual abuse of the children would be detected. Availability of Cash.
The defendant also opened the door on cross-examination concerning his
receipt of cash from a city contractor, when he spontaneously said on
cross-examination that such payments could not have happened as
frequently as everyone testified, because he could not have afforded
$1,000 a month for sex. GA 499, 602. This permitted the Government to
show that the defendant in fact could afford to pay Jones for such
regular sexual encounters.  Therefore, the Government properly asked the

defendant about his receiving between $1,000 and $2,500 in cash from Joe

15 to 20 times and revealed that the $5,250 recovered from his house
came from Joe. GA 603-05. See Payton, 159 F.3d at 58; Beverly, 5 F.3d at

639.  Moreover, the defendant's receipt of things of value from a
contractor doing work for the city in contravention of the city's
charter, as well as his failure to report these items on his tax
returns, also constituted specific acts of dishonesty that were
independently admissible as Rule 608(b) impeachment material. See Jones,

900 F.2d at 75.
92 Municipal Corruption and the Defendant's Cooperation. The Government
offered no evidence in its case-in-chief about the defendant's
cooperation, what he voluntarily did, or the voluntary statements he
made while cooperating. As the district court noted, it was the
defendant who first mentioned (during his direct testimony) the
municipal corruption investigation, his cooperation, his speaking with
federal agents, and his wearing a wire. GA 377, T 2060. He therefore
opened the door to questions relating to the issue of public corruption
and his cooperation. See Payton, 159 F.3d at 58; Beverly, 5 F.3d at
639-40; see also infra Part V (explaining admissibility of defendant's
statements made during cooperation). Finally, even if any or all of
these questions were erroneously permitted, such error was harmless
beyond a reasonable doubt in light of the mass of evidence against the
defendant. The two young victims of his abuse gave powerful, mutually
corroborating testimony that the defendant had forced them to perform
sexual acts upon him on numerous occasions (including at the Mayor's
Office), and had threatened them and Jones with jail if they told
anyone. Jones was an eyewitness to all of this, and the drivers left no
doubt that Jones had repeatedly brought the girls to various locations
to meet the defendant. In light of this strong record, this Court can be

confident beyond any reasonable doubt that the jury would have returned
the same verdict even if the challenged cross-examination had been
precluded. See Fed. R. Crim. P. 52(a); Kotteakos v. United States, 328
U.S. 750, 764-65 (1946) (harmless error standard for non-constitutional
violations); Dhinsa, 243 F.3d at 649; United States v.
93 Smith, 727 F.2d 214, 222 (2d Cir. 1984) (erroneous admission of
extrinsic evidence under Fed. R. Evid. 608(b) was harmless). V. The
District Court Did Not Abuse Its Discretion in Refusing to Suppress the
Defendant's Oral Statements Made Prior to His Arrest A. Relevant Facts
Before trial, the defendant moved to suppress oral statements he made to

federal agents from July 23 to 26, 2001, and all derivative evidence, on

the grounds that those statements had been taken in violation of his
constitutional rights, Fed. R. Crim. P. 5 and 18 U.S.C.
3501. The district court held an evidentiary hearing on this motion on
January 6 and 9, 2003, at which the Government introduced the
testimony of several federal agents. By written decision dated February
13, 2003, the district court denied the defendant's motion, finding
that the defendant "was not under arrest from the time he voluntarily
entered the FBI vehicle at the commuter parking lot on July 23,
2001, to the time he was arrested at approximately 7:45 a.m. on July 26,

2001." SPA 17. The court found that the defendant was
voluntarily cooperating with law enforcement officials during this time
period [July 23-26, 2001], and was not being held in police custody
involuntarily or against his will. Consequently, all
94 statements made by him between July 23- 26, 2001, were voluntary.
Furthermore, even assuming that Giordano was in custody, the court finds

that he voluntarily, knowingly, and intelligently waived his Fifth
Amendment rights against selfincrimination. SPA 15. The court set forth
extensive factual findings in support of its ruling at SPA 15-18. B.
Governing Law and Standard of Review A seizure of a person does not
occur unless, "in view of all the circumstances surrounding the
incident, a reasonable person would have believed that he was not free
to leave." United States v. Mendenhall, 446 U.S. 544, 554 (1980); see
generally United States v. Lee, 916 F.2d 814, 819 (2d Cir.
1990) (listing relevant factors). Rule 5(a) of the Federal Rules of
Criminal Procedure requires that persons who have been arrested must be
taken "without unnecessary delay" before the nearest available federal
magistrate judge or before a state or municipal judicial officer if a
federal judge is unavailable. A confession obtained from a suspect
during a period of unnecessary delay before presentment must be
suppressed upon a defendant's objection to its admission into evidence.
Mallory v. United States, 354 U.S. 449, 453 (1957); see also
McNabb v. United States, 318 U.S. 332, 341-342 (1943). Section 3501(c)
of Title 18 provides that a confession obtained while a person is
detained or under arrest shall not be rendered inadmissible solely
because of
95 a delay in bringing the prisoner before a magistrate, provided that
the confession was given within six hours of the detention or arrest.
See United States v. Perez, 733 F.2d 1026, 1031 (2d Cir. 1984). The
standard of review for evaluating the district court's ruling on a
suppression motion, or whether a defendant was in custody for Miranda
purposes, "is clear error as to the district court's factual findings,
viewing the evidence in the light most favorable to the government, and
de novo as to questions of law." United States v. Rodriguez, 356
F.3d 254, 257-58 (2d Cir. 2004) (citations omitted). C. Discussion In
this appeal, the defendant argues (Def. Br. 104- 10) that the district
court erred in permitting the government to cross-examine him with
statements obtained during the period of his cooperation, between
July 23 and July 25, 2001. He argues that the government unreasonably
delayed in presenting him to a magistrate judge after his arrest,
and thereby took these statements in violation of Fed. R. Crim. P. 5(a)
and 18 U.S.C. 3501(c). His argument fails for several reasons. First,
the defendant has not challenged the district court's predicate holdings

(1) that the defendant was not arrested until the morning of July
26, and (2) that even if the defendant was in custody, his statements
were nevertheless voluntary. By failing to raise such challenges in
his appellate brief, the defendant has waived them. See Storey v. Cello
Holdings, L.L.C., 347 F.3d 370, 380 n.6
18 The defendant claims (Def. Br. 109) that his testimony on
cross-examination relating to his receipt of $1,000 from Joe, was based
on a statement that should have been excluded under Rule 5(a) and
3501(c). Although this conversation did not take place within six hours
of the supposed arrest, this conversation was not a "confession" to law
enforcement officers as contemplated by 3501(c). Rather, the defendant's

conversation with Joe was made in the course of his cooperation with the

FBI and was intended to elicit an incriminating statement (continued...)

96 (2d Cir. 2003) (issue abandoned when not raised in opening appellate
brief); LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir.1995).
(And in any event, the court's detailed findings were amply supported by

testimony at the hearing, see SPA 15-18.) Because the defendant was not
arrested until the morning of July 26, the only claims he does
articulate -- that the government obtained the statements in question
too long "after his arrest" in violation of Rule 5(a) and 3501(c) -- of
necessity must fail.
Second, even if the defendant had been arrested in the highway parking
lot at 12:15 p.m. on July 23, 2001, the suppression remedy
provided by 3501(c) and the McNabb-Mallory doctrine would not apply. The

defendant has not challenged the district court's findings that
the statements were made voluntarily, or the record evidence that they
were made before 6:15 p.m. on July 23, 2001, and so the six-hour
"safe harbor" provided by 3501(c) insulates the statements from
suppression.18
18 (...continued) from Joe, not the defendant. 19 In Harris v. New York,

the Supreme Court appears to have erased an earlier distinction found in

the case law, admitting use of illegally obtained statements that relate

to collateral matters, but excluding such statements that relate to the
ultimate issue of guilt. 401 U.S. at 225. Cf. United States v. Curry,
358 F.2d 904 (2d Cir. 1966) (recognizing, pre-Harris, applicability of
this two-track rule to statements obtained in violation of Rule 5(a) and

the McNabb-Mallory doctrine). 97 Third, even if these voluntary
statements had been obtained in violation of Rule 5, evidentiary
suppression doctrines would only have barred their introduction during
the government's case-in-chief. As the defendant acknowledges (Def. Br.
110), the government used these statements only during his
cross-examination. Accordingly, there could not have been any trial
error. See generally Michigan v. Harvey, 494 U.S. 344 (1990) (statements

obtained in violation of Sixth Amendment rights admissible to impeach
defendant); United States v. Havens, 446 U.S.
620 (1980) (prosecution may use illegally seized evidence to rebut
defendant's statements on cross-examination); Oregon v. Hass, 420
U.S. 714 (1975) (prosecution may use statements obtained in violation of

Miranda in rebuttal case to impeach defendant's direct
testimony); Harris v. New York, 401 U.S. 222 (1971) (statements obtained

in violation of Miranda may be used to cross-examine
defendant).19
98 VI. The District Court Properly Declined To Require that the
Government Interview Child Witnesses in the Presence of Defense Counsel
and a Courtappointed Monitor, and Properly Allowed the Child Victims To
Testify by Closed Circuit Television A. Relevant Facts 1. Victim
Interviews Up until approximately one month before trial, the Government

refrained from interviewing the minor girls in preparation for their
testimony based upon its concern that detailed questioning regarding
their sexual abuse at the hands of the defendant would have a
traumatic effect on them. When it became clear that the case would not
be resolved pre-trial, the Government made arrangements to
interview the girls on February 10, 2003, and prepare them for trial.
The defendant sought to prevent the Government from preparing its
witnesses in the absence of a court monitor and defense counsel,
claiming that without this relief, Government agents and attorneys
would improperly shape the children's testimony in violation of his
Fifth and Sixth Amendment rights. On February 7, 2003, the district
court
denied the defendant's motion and articulated its reasons for this
decision in an oral ruling on February 12, 2003. The district court
found
that the Government had provided sufficient safeguards that would
prevent the harm claimed
99 by the defendant. The district court noted that the two child
witnesses were interviewed separately; that only one prosecutor would
conduct the interview; that the interviews would be attended by the
children's respective therapists, who were privately retained by the
Connecticut Department of Children and Families and had no affiliation
with the United States Attorney's Office; that the interviews were
also attended by the children's respective social workers; that the
Government needed to conduct the interviews to prepare for trial; and
that the presence of the children's therapists and social workers would
insure that the prosecutor could not improperly suggest answers to
the children. In sum, the district court was satisfied that the
interviewing procedure used by the Government did not violate the
defendant's constitutional rights, as claimed. SA 1171-1174. 2. Closed
Circuit Television In light of the special concerns that attend the
testimony of minor victims of sexual abuse, the Government sought an
order allowing the testimony of the two child witnesses to be taken
from a room outside the courtroom by two-way closed circuit television,
in the manner prescribed by 18 U.S.C. 3509(b)(1)(D). On February
12, 2004, the district court held an evidentiary hearing at which the
Government established, through the testimony of three witnesses, a
factual basis for the proposed order. The Government's first witness,
Yoon Im, a licensed clinical social worker and therapist for the older
of the two girls, stated that her client would be terrified if
100 she had to testify in the defendant's presence, and, further, that
the girl would suffer severe emotional trauma from testifying in the
defendant's presence. SA 1200-05, 1236- 37. Im further stated that the
girl would be able to testify more effectively if her testimony were
taken by closed circuit television outside the presence of the defendant

and that testifying in this manner would lessen the risk of fear and
emotional trauma. SA 1212-13. Im did not testify as an expert witness.
The Government's second witness, Dr. Robert Dell, a licensed
psychologist, testified as an expert in the area of child sexual abuse.
Dr. Dell stated that the older girl had a particularized fear of the
defendant. SA 1252. Dr. Dell further stated that in his expert opinion,
there was a substantial likelihood that she would suffer emotional
trauma from testifying in the presence of the defendant and that
testifying by closed circuit television would lessen the risk of
emotional
trauma for her. SA 1256-58. The Government's final witness was Joy
Burchell, a licensed clinical social worker who had been the younger
girl's therapist for approximately 18 months. Burchell stated that the
younger girl would not be able to testify in the presence of the
defendant because of fear and trauma, SA 1289-94, and that testifying by

closed circuit television would decrease the risk of fear and
trauma for her. SA 1294-95. Burchell did not testify as an expert
witness. At the conclusion of the hearing, the district court found that

the older girl would be "unable to testify because of fear, and . . .
there is a substantial likelihood, established by expert testimony, that

[she] would suffer
101 emotional trauma from testifying, and that trauma is . . . caused
not solely because of . . . being in a courtroom generally, but that
that trauma would be caused by the presence of the defendant." SA 1314.
The district court further found that the defendant's "presence
in the court would exacerbate the trauma and fear already likely to be
experienced by Victim Number 2" and that she "would not be able to
testify in the courtroom in the presence of the defendant." SA 1314.
With respect to the younger girl, the district court found that she
"would be unable to testify . . . in the presence of the defendant in
the courtroom because of fear of the defendant." SA 1315. Based on
these findings, the district court ordered the Government to make
arrangements to allow the two child witnesses to testify by means of
closed circuit television. SA 1315-16. At trial, the two child witnesses

testified from a separate room in the courthouse by two-way closed
circuit television. Present in the room as each witness testified were:
an Assistant United States Attorney, defense counsel, support
personnel for the children, and a camera operator. GSA 37-40. The jury
was able to see each witness as she testified and the witnesses
were able to see the defendant. GSA 38-40, 83-84. B. Governing Law and
Standard of Review The Confrontation Clause of the Sixth
Amendment to the United States Constitution provides: "In all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him." In Maryland v. Craig, 497
U.S. 836 (1990), the Supreme Court
102 considered whether the Confrontation Clause was violated by allowing

a child witness to testify at trial outside the defendant's
presence by means of one-way closed circuit television, pursuant to the
procedure set forth in a Maryland statute. The Supreme Court
identified the elements of the Confrontation Clause as (1) the witness'
physical presence in the courtroom; (2) the requirement that the
witness give testimony under oath; (3) the requirement that the witness
submit to cross-examination; and (4) permitting the trier of fact
to observe the demeanor of the witness to assess credibility. Id. at
845-846. The Court held that face-to-face confrontation "is not the
sine qua non of the confrontation right," id. at 847, explaining that
"the right to confront and to cross-examine is not absolute and may, in
appropriate cases, bow to accommodate other legitimate interests in the
criminal trial process." Id. at 849. "[O]ur precedents establish
that the Confrontation Clause reflects a preference for face-to-face
confrontation at trial, a preference that must occasionally give way
to considerations of public policy and the necessities of the case." Id.

at 849 (emphasis in original) (citations and internal quotations
omitted). The Court held that "the state interest in protecting child
witnesses from the trauma of testifying in a child abuse case is
sufficiently important to justify the use of a special procedure that
permits a child witness in such cases to testify at trial against a
defendant in the absence of face-to-face confrontation with the
defendant." Id. at 855. The Court then described the inquiry that a
trial
court
103 must conduct before allowing a child witness to testify via closed
circuit television: [T]he trial court must hear evidence and determine
whether . . . the . . . procedure is necessary to protect the welfare of

the particular child who seeks to testify. The trial court must also
find the child witness would be traumatized, not by the courtroom
generally, but by the presence of the defendant. . . . Finally, the
trial court must find that the emotional distress suffered by the child
witness in the presence of the defendant is more than de minimis, i.e.,
more than mere nervousness or excitement or some reluctance to testify.
Id. at 855-856 (internal citations and quotation marks omitted).
Although the Court did not establish a minimum showing of emotional
trauma necessary to justify the closed circuit procedure, it held that
there should be a finding that "such trauma would impair the child's
ability to communicate." Id. at 857. In this regard, the Court noted
that requiring face-to-face confrontation could actually undermine the
Confrontation Clause's truthseeking goal. Id. It was significant to the
Court that Maryland's statutory procedure, which it was reviewing,
preserved the essence of "effective confrontation" -- testimony by a
competent witness, under oath, subject to contemporaneous
cross-examination, and observable by the judge, jury, and defendant. Id.

at 851.
104 Five months after the decision in Craig, Congress enacted 18 U.S.C.
3509, which implements the Supreme Court's ruling by permitting a
district court to order that a child witness testify by closed-circuit
television from a room outside the courtroom. The Act provides: (B) The
court may order that the testimony of the child be taken by
closed-circuit television . . . if the court finds that the child is
unable to testify in open court in the presence of the defendant, for
any of the following reasons: (i) The child is unable to testify because

of fear.  (ii) There is a substantial likelihood, established by expert
testimony, that the child would suffer emotional trauma from testifying.

(iii) The child suffers a mental or other infirmity. (iv) Conduct by
defendant or defense counsel causes the child to be unable to continue
testifying.
18 U.S.C. 3509(b)(1)(B). Any one of these four reasons is sufficient to
justify the closed circuit television procedure. Congress thereby
defined the very few situations in which this remedy would be
appropriate and
105 required the district court to "support [its] ruling on the child's
inability to testify with findings on the record." 18 U.S.C.
3509(b)(1)(C). In essence, 3509(b)(1)(B) makes concrete the
constitutional principles enunciated in Craig: "So long as a trial court

makes . . . a case-specific finding of necessity, the Confrontation
Clause does not prohibit [the use of] a one-way closed circuit
television procedure for the receipt of testimony by a child witness in
a child abuse case." Id. at 860. The district court's factual findings
in support of its decision to allow the child witnesses to testify via
closed circuit television are reviewed for clear error. The legal effect

of those findings under 18 U.S.C. 3509(b)(1)(B) and Craig is reviewed de

novo. See United States v. Weekley, 130 F.3d 747, 750 (6th Cir. 1997);
United States v. Carrier, 9 F.3d 867, 870 (10th Cir. 1993). C.
Discussion 1. The District Court Properly Refused To Require the
Government To Interview the Child Witnesses in the Presence of a Court
Monitor and Defense Counsel Asserting that his "right to confrontation
was completely undermined by the exclusive access given by the district
court to the government to interview these child witnesses" (Def. Br.
117), the defendant claims that the district court erred by refusing to
interpose a court
106 monitor and defense counsel into the Government's pretrial witness
interviews, thereby depriving him of his rights under the Due Process
Clause of the Fifth Amendment and the Confrontation Clause of the Sixth
Amendment. Brief at 110. The only authority offered in support of this
argument appears to be Maryland v. Craig, see Def. Br. 112, which
relates only to the trial testimony of a child witness, not pre-trial
interviews. The Government is not aware of any authority that provides a

defendant with the right to monitor the Government's preparation of
witnesses before trial. Indeed, the defendant is not even entitled to
learn what witnesses have said during pretrial interviews until after
they testify on direct examination. See, e.g., United States v. Coppa,
267 F.3d 132, 146 (2d Cir. 2001); 18 U.S.C.
3500 (Jencks Act). A fortiori, a defendant has no right to attend such
interviews. To the extent Craig is relevant at all to this issue, the
Supreme Court's decision undermines the defendant's argument. Under
Craig, the elements of the confrontation right other than
face-to-face confrontation -- testimony by a competent witness, under
oath, subject to contemporaneous cross-examination, and
observable by the judge, jury, and defendant -- provide adequate
"safeguards of reliability and adversariness," 497 U.S. at 851, and
fully
satisfy the requirements of the Sixth Amendment. While it is true that
federal law makes special provisions for taking the testimony of child
witnesses, see e.g., 18 U.S.C. 3509, these provisions are for the
benefit of the child, not the defendant. To the extent that the
defendant
was concerned about the consistency over time
107 of what the children said about his sexual abuse of them, he could
have, but did not, call as defense witnesses the children's various
therapists, who had been treating the children since the summer of 2001.

Similarly, if the defendant were concerned about the reliability of the
testimony of the child witnesses, he was free to challenge that
testimony in the same manner as for any other witness: by means of
cross-examination. In fact, the defendant did challenge the testimony of

the two child witnesses on cross-examination, as the defendant admits in

his own Brief. See Def. Br. 120-121 (establishing that: both child
witnesses had met with prosecutor several times before trial;
Victim 1 was not surprised by any of the questions the prosecutor asked
and that she had heard them all before; Victim 1 thought that
the prosecutor and social worker wanted to hear certain kinds of
answers, was concerned that she would disappoint them, and tried not
to disappoint them). The fact that the jury chose to credit the
testimony of the child witnesses in spite of their answers on
cross-examination (and in spite of the defendant's own testimony),
however, can hardly be cited as proof that the defendant was
deprived of his right to a fair trial or to confront witnesses against
him. In this regard, child witnesses are no different from any other
witnesses, whose testimony may be affected by confusion, bias,
forgetfulness, or evasion. The Supreme Court has held that "the
Confrontation Clause is generally satisfied when the defense is given a
full and fair opportunity to probe and expose these infirmities
through cross-examination, thereby calling to the attention of the
factfinder the reasons for giving scant weight to the witness'
testimony." Delaware v. Fensterer, 474 U.S. 15, 22 (1985). The
108 Supreme Court recently reaffirmed the centrality of crossexamination

to the Confrontation Clause in Crawford v. Washington, 124 S.  Ct. 1354
(2004), holding that the prior testimony of an unavailable witness is
admissible only if the defendant has had an opportunity to cross-examine

the witness. Having been afforded that opportunity at trial, the
defendant suffered no Confrontation Clause violation. 2.
The District Court Correctly Applied the Constitutional Requirements of
Craig and the Statutory Requirements of 3509(b)(1)(B) In
considering whether to allow the Government's two child witnesses to
testify via two-way closed circuit television, the district court
conducted a hearing that satisfied both the constitutional and statutory

requirements designed to preserve a defendant's Sixth
Amendment right to confront witnesses against him, while also
safeguarding the welfare of child witnesses who had been victims of
sexual
abuse. The district court received evidence and made case-specific
findings that: (1) each of the two child witnesses would suffer fear
and/or trauma specifically caused by testifying in the presence of the
defendant, and not just a general fear of the courtroom; (2) the
fear or trauma experienced by each of the witnesses in the presence of
the defendant would be more than de minimis and would impair the
child's ability to communicate effectively; (3) the closed circuit
television procedure was necessary to protect the welfare of each
particular child witness. SA 1314-1315. These findings fully satisfy the

109 safeguards set forth in Craig, see 497 U.S. at 855-857, and reflect
that the district court clearly understood its constitutional
obligations. Thus, the defendant's assertion on appeal that "[t]he
district court deliberately disregarded the constitutional standard set
down by the Supreme Court in Craig," see Def. Br. 115, is belied by the
record. The district court's findings also satisfy the requirements of
3509(b)(1)(B). In this regard, it is important to note that, whereas
Craig imposes no specific constitutional requirement that any of the
district court's findings be based on expert testimony, 3509(b)(1)(B)
imposes on the Government the extra burden of establishing the risk
of emotional trauma by expert testimony. See 18 U.S.C. 3509(b)(1)(B)(ii)

(district court must find that "[t]here is a substantial likelihood,
established by expert testimony, that the child would suffer emotional
trauma from testifying.") (emphasis added). In this regard, Congress
can be said to have been more, not less, protective of a defendant's
confrontation rights than was the Supreme Court in Craig. Similarly,
the closed circuit television procedure used in this case went beyond
the protections required by Craig. In Craig, the Supreme Court held
that the Confrontation Clause was satisfied by the use of a one-way
closed circuit television procedure, allowing the defendant, judge,
and jury to see the child witness as he testified. In the present case,
the Government arranged for a two-way closed circuit television
procedure, allowing the child witness to see the defendant as she
testified. GSA 38-40, 83-84. See United States v. Etimani, 328 F.3d
493, 499 (9th Cir. 2003) ("if Craig upheld the constitutionality of
one-way television
110 testimony in an appropriate case, then two-way television testimony,

a procedure that even more closely simulates in-court testimony, also
passes constitutional muster"). The district court supported its "ruling

on [each] child's inability to testify with findings on the record," as
required by statute. See 18 U.S.C. 3509(b)(1)(C). As to Victim 2, the
district court found that the child would be unable to testify because
of fear, and also that there was a substantial likelihood that the
defendant would suffer emotional trauma from testifying.
This latter finding was supported by expert testimony, as required by
Section 3509(b)(1)(B)(ii). Specifically, the district court received and

credited the testimony of Yoon Im, a licensed clinical social worker,
and Robert Dell, a licensed psychologist. Contrary to the defendant's
assertion, Dr. Dell stated that in his expert opinion, there was "a
substantial likelihood that [Victim 2] would experience emotional
distress"
from testifying in the presence of the defendant (clarifying his
previous testimony that there was "a substantial possibility" of
emotional
distress). SA 1258. Im, who was not offered as an expert witness,
provided lay opinion testimony pursuant to Rule 701 of the Federal Rules

of Evidence as to whether the girl would be able to testify in the
presence of the defendant. In Im's opinion, Victim 2 could not testify
in
the presence of the defendant because of fear and likelihood of trauma.
SA 1198-1205. As to Victim 1, the district court's finding was
supported by the testimony of Joy Burchell, a licensed clinical social
worker who had treated her in more than 60 sessions over the course
of approximately 18 months. SA
111 1282, 1284. The district court was entitled to credit her lay
opinion testimony, offered pursuant to Fed. R. Evid. 701, that the girl
could not testify in the presence of the defendant because of fear. SA
1290-1292. 3. Expert Testimony Is Not Required for a "Because of Fear"
Finding Under 18 U.S.C. 3509(b)(1)(B)(i) The defendant's central claim
of error concerns the district court's finding that the child witnesses
could not testify in the presence of the defendant "because of fear." 18

U.S.C. 3509(b)(1)(B)(i). Citing Craig and United States v. Moses, 137
F.3d 894 (6th Cir. 1998), the defendant argues that "lay testimony is
constitutionally inadequate to make the requisite finding that would
justify permitting a witness to testify outside the presence of the
defendant," Def. Br. 118, and that a "because of fear" finding could
only be based on expert testimony. Citing the statute itself, the
district court rejected this argument, correctly observing that
3509(b)(1)(B) requires expert testimony only for a finding of trauma.
See SA 1187- 1189. Compare 18 U.S.C. 3509(b)(1)(B)(i) (child unable to
testify because of fear) with 3509(b)(1)(B)(ii) (child unable to testify

because of substantial likelihood of emotional trauma).
Notwithstanding the plain language of the statute, the defendant claims
that expert testimony is required for a finding of fear as well as
trauma. Congress's inclusion of the expert-testimony language in one
subsection of 3509(b)(1)(B), but not the others, presumptively
indicates that the omission was purposeful. See, e.g., Barnhart v.
Sigmon Coal Co., Inc., 534 U.S. 438,
112 452 (2002) ("[I]t is a general principle of statutory construction
that when Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is generally

presumed that Congress acts intentionally and purposely in the disparate

inclusion or exclusion.") (internal quotation marks omitted). The one
appellate court to have considered the issue has ruled accordingly. See
United States v. Rouse, 111 F.3d 561, 569 (8th Cir. 1997) (holding that
"because of fear" finding under 3509(b)(1)(B)(i)
"does not require an expert"). Nor does Craig, as a constitutional
matter, require expert testimony to support a finding that a child
witness
cannot testify in the courtroom in the presence of the defendant.
Although expert testimony had been received in that case, see 497 U.S.
at 842, the Maryland statute under consideration, unlike 3509(b)(1)(B),
did not expressly require expert testimony and the Supreme Court
did not find such testimony to be constitutionally required. The
defendant's reliance on Moses is similarly misplaced. In Moses, the
Sixth
Circuit reversed a conviction for abusive sexual contact because the
district court did not comply with the requirements of 3509(b)(1)(B),
as understood in light of Craig. Relying on 3509(b)(1)(B)(i) and (ii),
the district court had made findings that the victim could not testify
in
the presence of the defendant because of fear and also that there would
be a substantial likelihood that the victim would experience
emotional trauma as a result of testifying in the presence of the
defendant. The Sixth Circuit found that the district
113 court's "because of fear" finding was clearly erroneous because the
victim herself unequivocally stated that she was not afraid of the
defendant. See 137 F.3d at 898-899. The fact that the Government had not

offered expert testimony on the issue of fear was completely irrelevant
to the appellate court's reasoning. It is clear that if the victim had
stated unequivocally that she was afraid of the defendant, that would
have been enough to support a "because of fear" finding, even in the
absence of expert testimony. By contrast, the Sixth Circuit's discussion

of trauma focused entirely on the qualifications of the expert witness
who had opined that the victim would be unable to testify because of the

likelihood of emotional trauma. "Subsection (b)(1)(B)(ii) of [ 3509]
requires expert testimony to establish trauma."
Id. at 899 (emphasis in original). The Sixth Circuit held that the
expert witness offered to establish trauma, a social worker, was not
properly qualified to render such an opinion. In sum, Moses supports the

Government's argument in this case that expert testimony is not
required to support a district court's "because of fear" finding. 4. The

Trial Court Did Not Err in Relying on the Expert Testimony of Dr. Dell
To Establish "Emotional Trauma" Under 18 U.S.C. 3509(b)(1)(B)(ii) The
defendant suggests that the district court erred by relying on the
testimony of Dr. Dell in its finding that Victim 2 would suffer
emotional trauma from testifying in the defendant's presence. Although
the
defendant does
114 not question Dr. Dell's qualification as an expert, he notes that
Dr. Dell never interviewed or personally examined Victim 2. See Def. Br.

118-19. The defendant cites no authority for the proposition that a
district court's "emotional trauma" finding must be based on the
testimony of an expert who has interviewed or personally examined the
child witness. Neither the statute nor the case law prohibits the
district court from receiving and relying on the testimony of an expert
who has not personally interviewed or examined the child. In United
States v. Garcia, 7 F.3d 885 (9th Cir. 1993), in which a defendant
challenged the district court's finding of a likelihood of trauma under
3509(b)(1)(B)(ii), the Ninth Circuit held that it was not error for the
district court to consider the expert testimony of a psychiatrist who
had never met the child witness in question. (The district court in
Garcia also based its finding on the testimony of the child's counselor
who, although not a doctor or psychologist, was qualified by the
district court as an expert. Id. at 889-890.) Dr. Dell, a doctor of
psychology, was the clinical supervisor for the two therapists
(including Im) who had been treating Victim 2. He had extensive
experience
in child clinical psychology and over several years had conducted
research and training in the area of treating child victims of sexual
abuse. SA 1243-1246. He testified that from November 2001 through March
2003, he discussed Victim 2's clinical treatment approximately
every other week with the therapists under his supervision. SA
1249-1250. Dr. Dell also observed Victim 2 on February 10, 2003, as she
was being interviewed by a
115 prosecutor in preparation for her testimony. SA 1250- 1252. In light

of Dr. Dell's extensive training and experience, and his close
supervision of Victim 2's clinical treatment, the defendant's argument
that he was not sufficiently familiar with Victim 2 to render an expert
opinion on emotional trauma is meritless. In any event, Dr. Dell's
alleged unfamiliarity with Victim 2 goes only to the weight accorded to
his testimony, not its admissibility. Cf. Garcia, 7 F.3d at 890
(affirming qualification of children's mental health specialist as
expert for purposes of testifying about likelihood of emotional trauma
under Section 3509(b)(1)(B)(ii), even though she was not a doctor or
psychologist). VII.
The District Court Did Not Abuse Its Discretion in Precluding the
Defendant from Cross-Examining the Child Victims About Prior Sexual
Behavior A. Relevant Facts On February 18, 2003, the defendant filed a
notice, pursuant to Rule 412 of the Federal Rules of Evidence, that
he intended to offer evidence that the victims in this case had engaged
in other sexual behavior. On March 4, 2003, the defendant filed a
supplemental proffer, which included portions of a Juvenile Court
decision and a Department of Children and Families ("DCF") report of
certain aspects of the victims' home life, including alleged sexual
activity in the home. SA 1157-1164. According to the defendant, this
information was relevant, among other reasons, to show that the victims
acquired their knowledge
116 of sexual terms and intimate parts of the body from their home life
and not from the defendant. SA 1163. On March 10, 2003, the district
court conducted a hearing pursuant to Rule 412(c)(2). At the conclusion
of that hearing, the court ruled that it would not permit
crossexamination of the children regarding their prior sexual behavior,
finding inter alia that, "based on the representations and the proffer
made by the defendant, that the Court cannot find that any
constitutional rights of the defendant would be violated by excluding
any of this evidence." SA 1362-1363. The court added that the defendant
was free to raise the issue if a basis to ask about the children's prior

sexual behavior arose during the children's direct examination. SA 1363.

No such basis arose, and the defendant did not raise the issue again. B.

Governing Law and Standard of Review Rule 412 of the Federal Rules of
Evidence is a rule of exclusion, which provides that in any proceeding
involving alleged sexual misconduct, "[e]vidence offered to prove that
any alleged victim engaged in other sexual behavior" is not admissible.
Rule 412(b)(1) provides three narrow exceptions to this general rule:
(A) evidence of specific instances of sexual behavior by the alleged
victim offered to prove that a person other than the accused was the
source of semen, injury, or other physical evidence;
(B) evidence of specific instances of sexual behavior by the alleged
victim with the
117 respect to the person accused of the sexual misconduct offered by
the accused to prove consent or by the prosecution; and (C)
evidence the exclusion of which would violate the constitutional rights
of the defendant. Rule 412 has "strict procedural requirements,
including a timely offer of proof delineating what evidence will be
offered and for what purpose." United States v. Rouse, 111 F.3d 561, 568

(8th Cir. 1997); see also Fed. R. Evid. 412(c)(1)(A). This requirement
permits the court to determine whether the proffered evidence is
admissible under one of the three enumerated exceptions to Rule 412.
Where the requirements of Rule 412 are not met, the court may
properly exclude the proffered evidence. United States v. Ramone, 218
F.3d 1229, 1235 (10th Cir. 2000) (fact that notice was untimely
was sufficient to exclude testimony); Rouse, 111 F.3d 561 (exclusion of
evidence was proper where defendant's vague notice fell far short
of complying with Rule 412 requirements). Thus, where the notice does
not specify the nature of the evidence and the purpose for which
it will be offered, the evidence should be excluded. This Court
"review[s] a district court's evidentiary rulings under an abuse of
discretion
standard." United States v. Tin Yat Chin, 371 F.3d 31, 40 (2d Cir.
2004). A district court's evidentiary rulings are subject to reversal
only
where manifestly erroneous or wholly arbitrary and irrational. See
United States v. Yousef, 327 F.3d 56, 156 (2d. Cir.) (manifestly
erroneous), cert. denied, 124 S. Ct. 353 (2003); United States v.
Dhinsa, 243 F.3d 635, 649 (2d Cir. 2001) (arbitrary and irrational). Any

error in excluding evidence
118 would be reviewable for harmlessness, even if based on a
Confrontation Clause violation. See, e.g., United States v. Martins,
02-1093, slip op. at 6 (2d Cir. July 28, 2004) (citing cases). C.
Discussion The defendant's claim that the district court erred in
excluding evidence of prior sexual behavior of the victims (Def. Br.
121-23) should be rejected. As an initial matter, his failure to cite
any source of law other than the Fifth and Sixth Amendments fails to
comply with Fed. R. App. 28(a), and alone warrants rejection of this
argument. See Qiu v.
Ashcroft, 329 F.3d 140, 156 (2d Cir. 2003). As a procedural matter, the
defendant's request was properly denied because his proffer failed
the specificity and relevance standards of Rule 412. Although the
defendant identified general allegations of sexual behavior, his motion
did
not "specifically describ[e] the evidence" he intended to offer. See
Fed. R. Evid. 412(c)(1)(A). The defendant proffered this evidence
through excerpts from a sealed judicial decision and a report prepared
by DCF. SA 1160- 1162. The proffered evidence related to alleged
sexual conduct in the victims' home, including sexual conduct they might

have witnessed and sexual conduct in which they allegedly
participated. The defendant failed to identify any witness through whom
the proffered evidence would be introduced, whether he intended
to inquire on crossexamination of the victims, whether he intended to
offer the judicial ruling referenced in his motion, whether he had
other documentary evidence that he would offer, or whether he
119 intended to proceed under a different method of proof. It was
impossible for the district court to determine whether the evidence
would be admissible, not only under Rule 412, but also under the other
applicable rules of evidence. See United States v. Nez, 661 F.2d 1203,
1206 (10th Cir. 1981) (defendant's failure to clearly establish a proper

purpose for the evidence of victim's prior sexual behavior justified the

district court's limitation on cross-examination); see also United
States v. Eagle, 137 F.3d 1011, 1014-15 (8th Cir. 1999) (affirming
exclusion of Rule 412 evidence for failure to file timely notice);
United States v. Boyles, 57 F.3d 535, 548 (7th Cir. 1995) (district
court did not err in failing to rule where defendant failed to make a
"proper offer of proof" or a timely and specific request for a ruling).
There is no merit to the defendant's claim (Def. Br. 121-23) that he was

"irreparably prejudiced" by the court's preclusion of
cross-examination which, he argues, would have shown "that the
children's knowledge of sexual terms and references to intimate parts of

the body came from experiences other than experiences allegedly
attributed to conduct by the defendant." The children's knowledge in
this regard was never an issue at trial, and thus such evidence was
irrelevant -- much less so relevant that its exclusion resulted in a
deprivation of the defendant's right to due process or to confront
adverse witnesses. The evidentiary centerpiece of the prosecution's
case was the direct evidence of sexual abuse offered through the
testimony of the two children and Guitana Jones, who were victims of
and/or eyewitnesses to these crimes, and the defendant's own words
intercepted on the wiretap. The
120 Government offered no circumstantial evidence of sexual abuse by
showing that the child victims were familiar with sexual terms and
intimate body parts, nor did the Government suggest, in closing argument

or anywhere else, that the children's supposed knowledge of sexual terms

and intimate body parts must have come from their sexual abuse at the
hands of the defendant. The only portion of the record cited by the
defendant to the contrary is a brief passage from the government's
summation: They came to this courthouse with their images projected to
you. They were under oath, and they had to talk about something, just
think of how nervous a child would be if they had to come get under oath

and testify about something that they were comfortable about, such as a
project, or something that they witnessed, and it was a positive thing.
Think about how nervous and uncomfortable it would be. Now take that
same feeling and overlay it with the fact that they were sexually
abused, and they now have to tell you about it. Total strangers. They
had to say how the Mayor forced them to put his penis and private in
their mouth, how he inserted his fingers in their vagina, how he touched

their breasts.  Intimate details. These young children have to talk
about that. All the while they see his image projected on the screen.
Now, if it never happened, why go through all the agony and pain and the

embarrassment of doing it. Why do it?
121 JA 471-472. Read in context, it is clear that the prosecutor was
commenting on the credibility of the children, not on the basis for
their knowledge of sexual terms. Given that the children's knowledge in
this respect was not at issue in the case, the district court did not
err in precluding crossexamination of the children regarding such
knowledge. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (noting

that Constitution affords judges "wide latitude" in excluding evidence
that poses undue risk of "confusion of the issues" or evidence that is
"only marginally relevant"); United States v. Blum, 62 F.3d 63, 67 (2d
Cir. 1995) (same). Finally, the defendant waived any claim regarding
exclusion of such evidence in contexts other than his crossexamination
of the children. He did not try to elicit testimony regarding whether
the girls had other sources of knowledge regarding sexual terms or
anatomy from adults who knew the girls at home: Guitana Jones or Bernard

Frederick, both of whom appeared as Government witnesses, or Vicki
Mullen, who testified as a defense witness. Having failed to offer any
other evidence in this regard, he has waived this claim on appeal. See
Yousef, 327 F.3d at 129 (failure to offer reports into evidence waives
claim of improper exclusion of evidence).
122 VIII. The District Court Did Not Abuse Its Discretion in Computing
the Defendant's Offense Level Under the Sentencing Guidelines, and
Its Decision Not To Further Depart Downward Is Unreviewable on Appeal A.

Relevant Facts Following the defendant's conviction, the
Probation Office prepared a 63-page Presentence Report ("PSR"). GSA
177-267. The PSR included a multiple count computation, which
calculated adjusted offense levels for five separate categories of
offenses: the civil rights offense involving Victim 1; the civil rights
offense involving Victim 2; the conspiracy offense; the 2425 counts
involving Victim 1; and the 2425 counts involving Victim 2. GSA
221-29. The PSR arrived at a final offense level of 48, resulting in
application of level 43, which is the highest offense level in the
sentencing table, and a Criminal History Category of I. GSA 229. The
resultant sentencing range was life imprisonment. GSA 237. See
U.S.S.G. 5A (sentencing table) (Nov. 1, 2002 Guidelines Manual). At the
sentencing hearing on June 13, 2003, the district court adopted
the findings and conclusions of the PSR. JA 482. The district court
specifically found that the final offense level was 43, and that such a
result would be appropriate even under alternative calculations. JA 483.

The court expressly found that the defendant had obstructed
justice by filing a false affidavit, threatening to kill Jones if she
revealed his criminal conduct to anyone, and falsely
123 testifying at trial. JA 490-493. The defendant's testimony at trial
was, in the district court's view, "totally unbelievable and not
credible, and his attempt to exculpate himself and exonerate himself by
testifying falsely as he did in the court's view clearly warrants the
adjustment for obstruction of justice pursuant to 3C1.1 of the
Sentencing Guidelines." JA 493. The Government filed a motion for
downward departure, pursuant to U.S.S.G. 5K1.1, based on the defendant's

substantial assistance to the Government on July 23-25, 2001, after he
was initially contacted by federal agents. The district court granted
the Government's motion and departed downward to a range of 360 months
to life imprisonment. JA 481-482. The defendant also filed a motion for
downward departure, based on a variety of other reasons. The district
court understood its authority to depart, but declined to exercise it:
THE COURT: Well, . . . I am not exercising my discretion to depart
downward based on [the defendant's] motion, but I am exercising my
discretion to depart downward based on the Government's 5K1.1 motion.
MR. JONGBLOED: And with respect to Mr. Bowman, we're all in agreement
Your Honor has the authority to --
THE COURT: I have the authority to do it; I elect not to do so.
124 JA 519-520. The court sentenced the defendant to concurrent
sentences of 444 months on each of the first two counts, and 60 months
for each of the remaining counts. JA 517-518. B. Governing Law and
Standard of Review Reliance on PSR. A district court may rely on the
Presentence Report and the findings within it. See, e.g., United States
v. Martin, 157 F.3d 46, 50 (2d Cir. 1998). The sentencing court
"satisfies its obligation to make the requisite specific factual
findings when it explicitly adopts the factual findings set forth in the

presentence report." United States v. Molina, 356 F.3d 269, 275 (2d Cir.

2004). Double counting. "Impermissible double counting occurs when one
part of the guidelines is applied to increase a defendant's sentence to
reflect the kind of harm that has already been fully accounted for by
another part of the guidelines." United States v. Napoli, 179 F.3d 1, 12

n.9 (2d Cir. 1999) (internal quotation marks omitted). Multiple
adjustments, however, "may properly be imposed when they aim at
different harms emanating from the same conduct."
United States v. Volpe, 224 F3d 72, 76 (2d Cir. 2000); United States v.
Parker, 136 F.3d 653, 654 (9th Cir. 1998) (per curiam). "This court
has repeatedly recognized that it is within the Sentencing Commission's
and Congress's prerogative to adopt double counting." United
States v. Meskini, 319 F.3d 88, 91 (2d Cir.) (internal quotation marks
omitted), cert. denied, 538 U.S. 1068 (2003). Even if the application
of multiple enhancements amounts to double counting, they must be
applied together if the "language of the Guidelines and the Sentencing
Commission's actions
125 make clear that the . . . Commission intended the provision[s] to
apply . . . ." United States v. Aska, 314 F.3d 75, 76 (2d Cir. 2002).
Aggravating role. "The determination of a defendant's role in the
offense is to be made on the basis of all conduct within the scope of
1B1.3 (Relevant Conduct) . . . and not solely on the basis of elements
and acts cited in the count of conviction." U.S.S.G. 3B1.1 intro.
comment. See United States v. Brinkworth, 68 F.3d 633, 641 (2d Cir.
1995). "[T]he defendant must have been the organizer, leader, manager,
or supervisor of one or more other participants." U.S.S.G. 3B1.1 app.
note 2. The defendant must exercise "some control" over others involved
in the commission of the offense or be responsible for organizing others

to carry out the crime. United States v. Leonard, 37 F.3d 32, 38 (2d
Cir. 1994). Arranging for the services of a participant makes one a
supervisor. United States v. Jacobo, 934 F2d 411, 418 (2d Cir. 1991). A
defendant's direct and immediate control over other participants is also

an important factor in determining whether the defendant had a
managerial or supervisory role. See United States v. Greenfield, 44 F.3d

1141, 1146 (2d Cir. 1995). Obstruction of justice. A court may enhance a

defendant's sentence under U.S.S.G. 3C1.1 if he commits perjury at
trial. The district court must determine whether the defendant has given

"false testimony concerning a material matter with the willful intent to

provide false testimony, rather than as a result of confusion, mistake,
or faulty memory." United States v. Dunnigan, 507 U.S. 87, 94 (1993);
see also United States v.
Blount, 291 F.3d 201, 217-18 (2d Cir. 2002). A judge must make factual
findings that are
126 independent of the jury verdict when imposing a perjury enhancement.

See Dunnigan, 507 U.S. at 95. Likewise, threatening, intimidating, or
otherwise unlawfully influencing a witness warrants an enhancement for
obstruction of justice. See U.S.S.G. 3C1.1, app.  note 4(a); United
States v. Dorn, 39 F.3d 736, 739-740 (7th Cir. 1994). Grouping. If two
or more counts are determined to involve "substantially the same harm,"
they are consolidated into a single group of closely related counts. See

U.S.S.G. 3D1.2. The offense level is then determined on the basis of the

single group, and no additional increase in offense level results simply

from the fact that the defendant was convicted on multiple counts. See
U.S.S.G. 3D1.3. By contrast, if two or more counts are not grouped, then

the Guidelines prescribe a procedure for calculating a combined enhanced

offense level based on the multiple counts of conviction. This combined
offense level is calculated by starting with the offense level for the
count (or the group of closely related counts) that has the highest
offense level, then adding from one to five more offense levels
depending on the number and severity of additional groups of closely
related counts. See U.S.S.G. 3D1.4. The combined offense level is then
used to determine a final sentencing guideline range. See U.S.S.G.
3D1.5.  See generally United States v. Gordon, 291 F.3d 181, 192-93 (2d
Cir. 2002), cert. denied, 537 U.S. 1114 (2003) (discussing operation of
3D1.2); United States v. Szur, 289 F.3d 200, 214-15 (2d Cir. 2002)
(describing operation of "grouping" rules). Downward departures.
"Departures from the prescribed Guidelines ranges are allowed only in
cases that are unusual." United States v. Sentamu, 212 F.3d 127,
134
127 (2d Cir. 2000). "It is well established in this Circuit that a
court's decision not to depart from the Guidelines is normally not
appealable." United States v. Crowley, 318 F.3d 401, 420 (2d Cir.)
(internal quotation marks omitted), cert. denied, 124 S. Ct. 239 (2003).

"While there is a narrow exception to this rule for those cases in which

the sentencing judge mistakenly believes that he or she lacks authority
to grant a given departure, we ordinarily presume that a sentencing
court understood all the available sentencing options, including
whatever departure authority existed in the circumstances of the case."
Crowley, 318 F.3d at 420 (internal quotation marks omitted). This
presumption of non-reviewability is overcome only "where there is clear
evidence of a substantial risk that the judge misapprehended the scope
of his departure authority." United States v. Gonzalez, 281 F.3d 38, 42
(2d Cir. 2002) (internal quotation marks omitted). Standard of review.
"We review a district court's interpretation of the Sentencing
Guidelines de novo, its findings of fact for clear error, and its
application of the Guidelines to the facts for abuse of discretion."
United States v. Lucien, 347 F.3d 45, 55 (2d Cir. 2003). Here, because
the defendant appears to challenge the manner in which the district
court applied the guidelines to the particular facts of this case, this
Court applies abuse-of-discretion review. See 18 U.S.C. 3742(e)
(requiring "due deference to the district court's application of the
guidelines to the facts"); United States v. Hamilton, 334 F.3d 170, 188
(2d Cir.), cert. denied, 124 S. Ct. 502 (2003).
128 C. Discussion The defendant raises numerous challenges to the
Guidelines calculation in the PSR, but does so without substantive
argument, legal citation, or analysis. For this reason alone, this Court

should reject these claims on appeal. See Qiu 329 F.3d at 156. Out
of an abundance of caution, however, the Government explains below why
his challenge to the ultimate offense level is meritless. Serious
bodily injury. The government concedes that the district court erred in
applying a two-level enhancement for serious bodily injury under
U.S.S.G. 2A3.1(b)(4)(B), GSA 222-28, but this error did not ultimately
affect the defendant's final offense level and was therefore harmless
beyond a reasonable doubt. The district court erred in imposing this
two-level enhancement based on the defendant's sexual abuse of the
children, because such abuse was already factored into the base offense
level 27 under U.S.S.G. 2A3.1(a). See U.S.S.G. 2A3.1 app. note
1 ("for purposes of this guideline, ‘serious bodily injury' means
conduct other than criminal sexual abuse, which already is taken into
account in the base offense level under subsection (a)"). Although the
children suffered severe psychological injury, the record does not
show that they suffered an injury "involving extreme physical pain or
the protracted impairment of a function of a bodily member, organ, or
mental faculty, or require medical intervention such as surgery,
hospitalization, or physical rehabilitation." U.S.S.G. 1B1.1(i)
(defining
"serious bodily injury"). Not including the serious bodily injury
adjustment results in an adjusted offense level of 41, not 43, for
Counts 1
and 2; after
129 grouping, however, the total offense level remained at 43, as
explained below. Color of law. The defendant objects on sufficiency
grounds to the six-level adjustment for being a public official or
acting under color of law, pursuant to U.S.S.G. 2H1.1(b)(1)(A) and (B).
As fully shown at trial and reflected in the jury's guilty verdicts on
Counts 1 and 2, the defendant abused his position as the Mayor of
Waterbury when he sexually abused the victims, and he did so under color

of law. See supra Part III. See United States v. Livoti, 22 F.  Supp.2d
235, 246-47 (S.D.N.Y. 1998) (district court imposed 2H1.1(b)(1)
enhancement on police officer for violating arrestee's civil rights),
aff'd 196 F.3d 322 (2d Cir. 1999). Therefore, the six-level adjustment
was warranted. Aggravating role. The defendant objects to his twolevel
role enhancement under 3B1.1. He argues that Jones "was not a
subordinate," or even a "participant" within the meaning of the
Guidelines, on the grounds that she could not have been convicted of the

civil rights offense (presumably because she was not a public official).

Def. Br. 124-25. This claim fails for three reasons. First, Jones could
in fact have been prosecuted under 242 as an aider-and-abettor, because
she was instrumental in helping the defendant violate the children's
civil rights. See, e.g., United States v.
Causey, 185 F.3d 407, 415 (5th Cir. 1999) (private citizens may be
prosecuted under 242 for aiding in official abuse). Second, a person
"need not have been convicted" to qualify as a "participant" under
3B1.1. U.S.S.G. 3B1.1, app. note 1; see United States v. Brinkworth, 68
F.3d 633, 641-642 (2d Cir. 1995); United States v. Belletiere, 971 F.2d
961, 969 (3d
130 Cir. 1992). Third, there was ample evidence that the defendant, a
mayor and lawyer, directed Jones, a prostitute and drug addict, to
arrange for him to have sex with the children. It was the defendant who
told Jones when and where to bring the children so he could sexually
abuse them. JA 153, 172, 191, 192, 269. Abuse of position of trust. The
defendant oversimplifies the record in claiming that the court erred by
enhancing his sentence for abuse of trust under U.S.S.G. 3B1.3. While he

is correct that this enhancement may not be applied in addition to the
six-level enhancement he received for acting under color of law and
being a public official in U.S.S.G. 2H1.1(b)(1) (see app. note 5), the
PSR did not apply the 3B1.3 enhancement to the counts involving 2H1.1
(the civil rights counts). GSA 222-24. The PSR applied the
abuse-of-trust enhancement only with respect to the conspiracy and 2425
counts, which were calculated under 2G1.1.
GSA 224-28. Thus, the doublecounting of which the defendant complains
never occurred. Obstruction of justice. The district court
correctly found that the defendant obstructed justice by committing
perjury at trial and threatening a witness (Jones). The defendant
testified repeatedly that he did not have any sexual contact with the
children, and that he did not speak with Jones during the period
charged in the indictment to arrange for sex with the children. The
court's determination that the defendant's testimony was false was
fully consistent with the jury's guilty verdicts. See United States v.
Godwin, 272 F.3d 659, 671 (4th Cir. 2001), cert. denied, 535 U.S. 1069
(2002). Likewise, the defendant's threat to kill Jones if she told
131 anyone about his sexual relationship with the children warranted the

obstruction adjustment. See JA 340 ("if my name get's f__kin' mentioned,

okay, you might as well just put a f__kin' knife to your throat and kill

yourself"); United States v. Dorn, 39 F.3d 736 (7th Cir.
1994) (threat to retaliate against informant warranted obstruction
enhancement). Furthermore, the district court's findings on perjury
adequately encompassed the factual predicates for a finding of perjury,
leaving no doubt of the district court's view that the defendant's
false testimony was given intentionally in order to exculpate himself,
not out of mistake or confusion. Dunnigan, 507 U.S. at 95; see United
States v. Webster, 54 F.3d 1, 9 (1st Cir. 1995) (finding that
defendant's "protestations of ‘absolute' innocence . . . were not in any

way
ambiguous and amounted to perjury"). Grouping. The defendant objects to
the PSR's determination, adopted by the court, that none of
the counts should be grouped, and claims that there should have been
only two groups: one for each victim. Def. Br. 125. The district
court did not abuse its discretion when it declined to form only two
groups out of all of the defendant's criminal conduct. There was
overwhelming evidence that the defendant sexually abused each of the
children on numerous occasions between November 2000 and July
2001. The court, in adopting the PSR, reasonably concluded from the very

nature of these sexual abuse offenses as well as the particular
facts of this case that these frequent episodes of sexual abuse should
not be lumped together as essentially one composite harm to their
separate victims, but instead should
20 The PSR made clear that "each count would receive one unit" for
purposes of grouping analysis, and that there were accordingly far more
units than required to enhance the defendant's sentence by the maximum
five levels provided by 3D1.4. GSA 221-22 at 118. The PSR's chart,
however, mistakenly lists only five groups of offenses instead of the
six required for imposition of the five-level enhancement.  GSA 229.
Because the PSR makes clear that each count would be ungrouped, this
error is clearly nothing more than a clerical oversight.  The PSR also
seems to mistakenly treat each 2425 count as interchangeable with a
single episode of sexual abuse. GSA 221-22. It is the episodes of abuse,

rather than the particular telephone calls, that represent distinct
harms and therefore warrant separate grouping. The distinction makes no
difference in the present case, however, because there was abundant
evidence of far in excess of six such episodes.
See supra Part III (describing testimony of Jones and the minor girls
regarding the defendant's frequent abuse, which occurred in the
Mayor's Office, his law office, his home, his police cruiser, and a
friend's apartment). 132 be treated as separate groups.20 The
commentary to the Guidelines' grouping provisions make this point quite
clearly, explaining that when a "defendant is convicted of two
counts of rape for raping the same person on different days[,] [t]he
counts are not to be grouped together." U.S.S.G. 3D1.2, comment
(n.4) (Example #5); see United States v. Miller, 993 F.2d 16, 21 (2d
Cir. 1993) (affirming non-grouping of three
21 The Court presently has another case sub judice that presents a
similar issue, of whether a district court abused its discretion at
sentencing when it concluded that a defendant prison guard's sexual
abuse of the same female inmate on multiple days did not result in a
single, composite harm to the inmate victim and therefore did not
warrant "grouping" separate counts of conviction under U.S.S.G. 3D1.2.
See United States v. Vasquez, No. 03- 1763 (oral argument not yet
calendared). 133 counts of offenses involving sending threatening
letters to same victim on different dates within three-year period).21
Indeed, the purpose of the grouping rules is "to provide incremental
punishment for significant additional criminal conduct" in cases where
multiple counts of conviction "represent additional conduct that is not
otherwise accounted for by the guidelines." U.S.S.G. Ch. 3, Pt. D,
intro. comment. ( 2, 4); see also U.S.S.G. 3D1.2 comment. (b'grd.)
(where decision whether to group samevictim counts is not "clear cut,"
sentencing court "should look to the underlying policy" of grouping
rules). In contrast to the fraud and drug guidelines, which already
prescribe enhanced offense levels for additional wrongful transactions,
the sexual abuse guideline does not account for repeated acts of abuse.
See U.S.S.G. 2A3.1. The district court properly ensured that the
defendant's offense level took account of each of his wrongful acts of
aggravated sexual abuse. Grouping was also inappropriate because
the samevictim acts were not "connected by a common criminal objective
or constitut[ed] part of a common scheme or plan,"
134 as required by U.S.S.G. 3D1.2(b). See United States v. Pitts, 176
F.3d 239, 245 (4th Cir. 1999) (where "the defendant's criminal
conduct constitutes single episodes of criminal behavior, each
satisfying an individual -- albeit identical -- goal, then the district
court
does not group the offenses"). Here, because the defendant's goal of
sexual gratification was satisfied with each assault, there was no
working to a single goal. In fact, had it not been for the fortuitous
discovery of the defendant's criminal conduct by federal agents, the
conduct would have undoubtedly continued. See also United States v.
Bradford, 277 F.3d 1311, 1316 (11th Cir.) (per curiam) (prison
escapes one month apart not groupable under 3D1.2(b), because the
defendant "has not demonstrated that his two separate escapes
were connected by a common criminal objective"), cert. denied, 537 U.S.
918 (2002). Harmless error. Offense Level 43 was the correct
final offense level in this case irrespective of whether all of the
counts should have been grouped together for each victim; whether the
two-level adjustment for serious bodily injury applied in the
calculation of the offenses; or whether the abuse of trust enhancement
applied
to Groups 3, 4, and 5. The offense level total for Group 1 (Count 1 --
Victim 1) and Group 2 (Count 2 -- Victim 2) were each 41 (base
offense level of 27; victim under 12 (+4); defendant was public official

or acted under color of law (+6); defendant was organizer or leader
in criminal activity (+2); and defendant obstructed justice (+ 2)).
Under U.S.S.G. 3D1.4, one unit is added for the highest group and one
unit for any equally serious additional group. Group 1 (Level 41) and
Group 2 (Level 41) each count for one unit, which results in the
135 addition of two levels to the highest group. U.S.S.G. 3D1.4(a).
Thus, the final offense level would still be Level 43 -- the highest
offense level in the sentencing table. The court expressly allowed for
an alternative guideline calculation, which permits this result. JA
483.  Downward departure. The Court should reject the defendant's
argument that the court "refused to consider the grounds for a departure

other than for substantial assistance" and "really never considered the
grounds for departure." Def. Br. 126, 128. The district court clearly
stated that it was exercising its discretion to depart based on the
defendant's cooperation, and that it was "not exercising my discretion
to depart downward based on [the defendant's] motion." JA 519. The court

unequivocally acknowledged it had authority to depart based on the
grounds advanced by the defendant, but chose not to depart when it said,

"I have the authority to do it; I elect not to do so." JA 519-20. Volpe,

224 F.3d at 79; United States v. Brown, 98 F.3d. 690, 692 (2d Cir.
1996). IX. The District Court Did Not Abuse Its Discretion in Declining
To Recuse Itself Based on Factual Findings Made During Detention
Proceedings A. Relevant Facts On March 4, 2002, the defendant filed a
motion for a limited recusal, asking Judge Nevas to recuse himself from
ruling on his motion to suppress the wiretap evidence because the judge
had authorized the wiretap applications. On September 12, 2002, the
judge denied that motion. JA 49.
136 On September 10, 2002, the defendant filed a second, broader motion
for recusal, contending that Judge Nevas should be recused
from hearing the entire case because his characterization of the
defendant as a "sexual predator" might lead a reasonable person to
question the judge's impartiality. The defendant cited an article in the

Hartford Courant highlighting the government's argument made
before this Court during oral argument of the bond appeal, in which
counsel noted the district judge's finding after the detention hearings
that "defendant is a sexual predator with deviant proclivities whose
victimization is far-reaching." On November 14, 2002, the district court

denied this second motion as well. SPA 28. By summary order dated
January 3, 2002, this Court summarily denied the defendant's petition
for mandamus, seeking to overturn these rulings. GA 35. B. Governing Law

and Standard of Review Section 144 of Title 28 provides that
"[w]henever a party to any proceeding in a district court makes and
files a timely and sufficient affidavit that the judge before whom the
matter is pending has a personal bias or prejudice either against him or

in favor of any adverse party, such judge shall proceed no further
therein . . . ." Section 455(a) provides that a judge "shall disqualify
himself in any proceeding in which his impartiality might reasonably be
questioned." Under this section, "recusal is not limited to cases of
actual bias; rather, the statute requires that a judge recuse himself
whenever an objective, informed observer could reasonably question the
judge's impartiality, regardless of whether he is actually partial or
biased." United States v. Bayless, 201 F.3d 116, 126 (2d Cir. 2000). Put

another way, "would an objective,
137 disinterested observer fully informed of the underlying facts,
entertain significant doubt that justice would be done absent recusal?"
United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992). "Litigants
are entitled to an unbiased judge; not to a judge of their choosing."
SEC v. Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1321 (2d Cir. 1988).

The legislative history of 455(a), as noted in Bayless, 201 F.3d at 127,

cautions that it is not intended to be "used by judges to avoid sitting
on difficult or controversial cases." H.R. Rep. No. 93-1453, at 5,
reprinted in 1974 U.S.C.C.A.N. at 6355. The Supreme Court has explained
that "judicial rulings alone almost never constitute a valid basis for a

bias or partiality motion." Liteky v. United States, 510 U.S. 540, 555
(1994). Furthermore, "opinions formed by the judge on the basis of facts

introduced or events occurring in the course of the current proceedings,

or of prior proceedings, do not constitute a basis for a bias or
partiality motion unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible." Id.  (emphasis
added); see also United States v. Bernstein, 533 F.2d 775, 785 (2d Cir.
1976). "[W]hat a judge learns in his judicial capacity –
whether by way of guilty pleas of codefendants or alleged
coconspirators, or by way of pretrial proceedings, or both – is a proper

basis for
judicial observations, and the use of such information is not the kind
of matter that results in disqualification." Id.; see also United States

v. Colon, 961 F.2d 41, 44 (2d Cir. 1992) ( 455 mandates recusal only
where judge has personal bias, meaning "prejudice based on
‘extrajudicial' matters, and earlier adverse rulings, without more, do
not provide a reasonable basis for questioning a
138 judge's impartiality") (citing Schiff v. United States, 919 F.2d
830, 834 (2d Cir. 1990)). A recusal claim is forfeited if a defendant
delays in seeking recusal. See United States v. Polizzi, 926 F.2d 1311,
1321 (2d Cir. 1991) (rejecting a recusal argument under 28 U.S.C.  144
and 455 because defendant never made such request in district court).
"[A] party must raise its claim of a district court's disqualification
at the earliest possible moment after obtaining knowledge of facts
demonstrating the basis for such a claim." Id. at 1321 (citations and
internal quotation marks omitted). Although 28 U.S.C. 455, unlike 144,
"does not explicitly contain a timeliness requirement for the filing of
a recusal claim, timeliness has been read into this section as well."
Id.; see Bayless, 201 F.3d at 127-28; United States v.  Daley, 564 F.2d
645, 651 (2d Cir. 1977). The district court's denial of a recusal motion

is subject to review only for abuse of discretion.
See Chase Manhattan Bank v. Affiliated FM Ins. Co., 343 F.3d 120, 126
(2d Cir. 2003); United States v. Yousef, 327 F.3d 56, 158 (2d Cir.
2003). C. Discussion As an initial matter, the defendant's complete
failure to cite any cases or make any legal argument in support of his
recusal claim warrants its rejection by this Court. See Fed. R. App. P.
28(a)(9); Qiu, 329 F.3d at 156; Dangler v. New York City Off Track
Betting Corp., 193 F.3d 130, 143 (2d Cir. 1999) (holding that litigant
did not comply with Rule 28 by simply cross-referencing other
pleadings).
22 Other courts have concluded that prior involvement with authorizing
or reviewing wiretaps does not require recusal in subsequent criminal or

civil proceedings. See Camacho v. Autoridad de Telefonos de Puerto Rico,

868 F.2d 482, 490 (1st Cir. 1989); United States v.  Diana, 605 F.2d
1307, 1316 (4th Cir. 1979); United States v. de la Fuente, 548 F.2d 528,

541 (5th Cir. 1977);United States v.
(continued...) 139 Furthermore, the defendant forfeited his recusal
claims by failing to raise them in a timely manner before the district
court. The defendant's first recusal motion, based on the judge's
familiarity with the Title III intercepts, was not filed until March 4,
2002,
even though he had learned on July 26, 2001, that Judge Nevas had signed

the wiretap order. The defendant's second recusal motion
(based on the judge's "sexual predator" finding) was not filed until
September 10, 2002 -- more than nine months after the court made
that finding on November 14, 2001. Such lengthy delay renders these
claims forfeited. See Daley, 564 F.2d at 651. Alternatively, the
district judge did not abuse his discretion in declining to recuse
himself. As for the first recusal motion, the present case mirrors the
situation in United States v. Diaz, 176 F.3d 52, 111 (2d Cir. 1999),
where this Court rejected the argument that recusal was appropriate
merely because, "in reviewing and authorizing wire intercepts in the
case, the court heard and credited inadmissible hearsay evidence of a
conspiracy." See also United States v Foddrell, 523 F.2d 86, 87 (2d Cir.

1975) (recusal not warranted where court conducted 11-day
hearing on wiretap).22
22 (...continued) Nicholson, 955 F. Supp. 582, 583 (E.D. Va. 1997);
United States v. Garramone, 374 F. Supp. 256, 258 (E.D. Pa. 1974).  But
cf. United States v. Zarowitz, 326 F. Supp. 90, 93-94 (C.D. Cal. 1971)
(voluntarily recusal of judge who had pretrial participation in
wiretaps). 140 With respect to the second recusal motion, the district
court's finding that the defendant was a sexual predator was based
entirely on evidence offered in the course of detention proceedings, see

United States v. Arena, 180 F.3d 380, 398 (2d Cir. 1999). This Court has

held that "[t]he fact that the judge had previously made rulings adverse

to [the defendant] was not a ground for recusal" -- even when the prior
rulings involved, as here, a denial of pretrial release. Arena, 180 F.3d

at 398. The judge's use of strong language ("sexual predator") in his
pretrial ruling does not alter this analysis. See Liteky, 510 U.S. at
555 (requiring showing of "deepseated and unequivocal antagonism that
would render fair judgment impossible"); King v. First American
Investigations, Inc., 287 F.3d 91, 96 (2d Cir.  2002); United States v.
Amen, 831 F.2d 373, 383 (2d Cir. 1987). In short, the district judge did

not abuse his discretion in declining to recuse himself from the case.
141 CONCLUSION For the foregoing reasons, the judgment of the district
court should be affirmed. Dated: August 2, 2004 Respectfully submitted,
JOHN H. DURHAM Deputy United States Attorney District of Connecticut
PETER S. JONGBLOED JOHN A. MARRELLA WILLIAM J.
NARDINI Assistant U.S. Attorneys
CERTIFICATION PER FED. R. APP. P. 32(A)(7)(C) This is to certify that
the foregoing brief is calculated by the word processing program to
contain approximately 35,623 words, exclusive of the Table of Contents,
Table of Authorities and this Certification. The United States has
submitted a motion for permission to file an oversized brief. PETER S.
JONGBLOED ASSISTANT U.S. ATTORNEY

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