United States v. Philip A. Giordano

DENNIS JACOBS, Circuit Judge,

concurring in part and dissenting in part.

I respectfully dissent from so much of the majority opinion as affirms Giordano’s conviction for civil rights offenses under color of law pursuant to 18 U.S.C. § 242. Despicable as the conduct was, there is no sufficient evidence that it was done under color of law. Several points demonstrate the insufficiency.

(1) Color of law overlays a deprivation of a constitutional right when the deprivation is achieved by a “[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” United States v. Classic, 313 U.S. 299, 325-26, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941) (emphasis supplied); see also Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1944); United States v. Walsh, 194 F.3d 37, 51 (2d Cir.1999). It is not enough for the government to show that abuse of government power was a contributing cause or background influence in the deprivation of the victim’s rights; it must be the but-for cause. So it was the government’s burden to prove beyond reasonable doubt that, but for the accused’s position of municipal authority, the wrong *49that was done would not have been possible.

That but-for requirement shapes - the case law involving physical abuse into with a few repeated scenarios: a police officer using brutal force during an arrest; an off-duty officer, who is out of control, inflicting punishment; or (more commonly) a prison guard abusing an inmate within the confínes of the prison walls. See, e.g., Screws, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (holding that a sheriff and two other law enforcement officials acted under color of law when they beat to death a young detainee during the course of his arrest); Walsh, 194 F.3d 37 (concluding that a corrections officer acted under color of law when he stepped on an inmate’s genitals). But for the position of power, the victim could not be reached, or be made to submit, or be kept silent.

In these paradigm cases, the but-for cause of the abuse is apparent, and a jury needs no special instruction to understand that the abuse was made possible by the abuser’s position. See, e.g., Pitchell v. Cal-lan, 13 F.3d 545, 548 (2d Cir.1994) (“[Liability may be found where [an official], albeit off-duty, nonetheless invokes the real or apparent power of [his office].”). In Giordano’s trial, however, the district court omitted the crucial word “only” that Classic requires, and thus charged: “Misconduct made possible because the public official is clothed with the authority of the law is action under color. of law.” The inadequacy of this instruction is not raised on appeal, and need not be considered; but Giordano has preserved the argument that the evidence was insufficient under the “color of law” standard set forth by the Supreme Court. And I conclude that no reasonable juror could find properly that this defendant acted under color of law.

(2) In order to demonstrate that Jones and the children succumbed to Giordano’s powers as mayor, the majority opinion adduces snippets of transcript (in footnotes 20 and 21) that evidence at best the victims’ subjective reactions (that they were impressed, and so forth). Ante at 44 n.19 & 45-46 n.20. However, focus on a victim’s subjective reaction “misses the essence of the color of law inquiry.” Pitchell, 13 F.3d at 548. Even assuming that such subjective testimony could suffice, the government did not ask the victims if they submitted because of Giordano’s mayoral powers — a telling omission since the government was in a position to know the answer.

Demonstrably, Giordano’s position as mayor of Waterbury was not the but-for and indispensable means of the child abuse.

• Giordano’s access was arranged by Jones, a prostitute he had patronized well before he was elected.
• The children were provided to him for an agreed-upon consideration that was paid. Jones testified as to her incentives: she wanted money to feed her crack habit.
• The mayor’s money was as good as anyone else’s; and there is no evidence that Jones would have refused the transaction or developed any additional scruple if her customer had not been mayor.
• Most of the abuse of the children (by far) took place at Giordano’s private law office, at Jones’ home or Giorda-no’s, or in an apartment belonging to a friend of Giordano. Abuse occurred at City Hall or in a government vehicle no more than a handful of times.

The only available inference is that the sole cause of the- abuse was that a sexual predator had access to sufficient cash (and a willing facilitator) to purchase the sexual services of children. Analytically, there is *50no distinction between the supposed threat in this case and any instance in which the customer of a prostitute demands confidentiality — except that the customer is a mayor. All would have happened as it did happen if Giordano had been an architect.

The fact that the mayor of a small city commands a police force does not mean that every illegal, unenforceable contract he enters into is made possible because of his office — ie., under color of law. If a mayor hits the trifecta, his bookie may be most unhappy about paying, and may appreciate the mayor’s power to get him arrested; a warning to keep quiet about the illegal transaction would be implicit whether or not recited; and the fact of office would be evident. Still, it cannot seriously be argued that a bookie’s payment under those circumstances would be extorted under color of law. The situation is indistinguishable from Giordano’s, as the government all but conceded at oral argument.

(3) This case differs from every other template case upon which the majority relies, in that Giordano did not use his power to cause the victims to submit, as in Walsh, 194 F.3d at 41-43; or to create the opportunity to be alone with the victims and coerce them, as in Griffin v. City of Opa-Locka, 261 F.3d 1295, 1306 (11th Cir.2001); or to assert special authority for the misconduct or to undertake retaliatory action, as in United States v. Tarpley, 945 F.2d 806, 809 (5th Cir.1991) (Higginbotham, J.).

The majority cites Monsky v. Mora-ghan, 127 F.3d 243 (2d Cir.1997), an outlier of a case involving a judge who permitted his dog to go about sniffing rudely at persons in the office of the court clerk. That case could not be dismissed on the pleadings (after all, some people in the clerk’s office presumably tolerated the invasion because the judge had power over them), but no holding in Monsky supports the majority opinion.

(4) More instructive is Tarpley, on which the majority relies. In Tarpley, a cuckolded deputy sheriff was found to have acted under color of law after he (together with another deputy) lured his wife’s lover to a house, beat his rival with a cosh, put a service pistol into his mouth, drove him out of town in a police car, and warned him that a cop can get away with it. 945 F.2d at 807. The Fifth Circuit affirmed Tarp-ley’s conviction under 18 U.S.C. §§ 241 and 242. Id.

Tarpley has persuasive impact on Gior-dano’s case chiefly because the fact scenarios provoke so many distinctions. Giorda-no’s conduct made no critical use of his office. Giordano paid an agreed price to abuse the children; he made no claim of power to do so based on official authority, apparent or actual. Giordano made no threat to use official power to harm Jones or the children; the warning about trouble and jail applied with infinitely greater force to himself (no one could assume he would precipitate a prosecution that chiefly would ensnare himself). Giordano acted alone, without enlisting any other person wielding power of law; so no one could think he was exercising a power backed by government force. Giordano employed no trappings of office to inflict the harm (such as the service pistol and the squad car trip in Tarpley). And Giordano abused the children surreptitiously, without spinning an aura of official conduct.

The facts in this ease are inverse to the facts that in Tarpley were held sufficient to support the inference that misconduct had the color of law:

[t]here was sufficient evidence in the record from which a rational juror could conclude that Tarpley was acting under color of law. Tarpley did more than simply use his service weapon and iden*51tify himself as a police officer. At several points during his assault of Vestal, he claimed to have special authority for his actions by virtue of his official status. He claimed that he could kill Vestal because he was an officer of the law. Significantly, Tarpley summoned another police officer from the sheriffs station and identified him as a fellow officer and ally. The men then proceeded to run Vestal out of town in their squad car. The presence of police and the air of official authority pervaded the entire incident.

Id. at 809. To offset these fact distinctions, the majority opinion leans heavily on the ambient impression of the mayoral office; but in so doing, the majority opinion vastly overstates the pomp and grandeur that surrounds the mayor of the fifth-largest city in Connecticut.

(5) Giordano raised the danger of jail if the prostitution of the children were disclosed; but there is nothing in the record from which to infer that such a statement acted as compulsion. Moreover, the threat of prison was no less than factual. A drug-addicted procurer of children of course belongs in jail. She acknowledged as much at trial:

Q. Did the Mayor say anything to you after this happened?
A. Yep.
Q. What did he tell you?
A. He told me make sure the kids don’t tell anyone and I’ll get in trouble, 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.

Defendant’s statement was a warning; he was in no position to issue it as a threat. And that admonition is characteristic of virtually every child abuse case — it had nothing to do with the fact that Giordano was mayor. Any friend would give her the same warning.

The threat of disclosure followed by jail was much more a threat in the hands of Jones. Indeed, she successfully blackmailed Giordano on the pretext of providing hush money for one of the drivers who brought Jones and the children to the assignations.