Giordano v. USA

Filing 232

ORDER denying 77 Motion to Vacate/Set Aside/Correct Sentence (2255); denying 84 Sealed Motion. Signed by Judge Stefan R. Underhill on 12/2/2015. (Landman, M)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
PHILIP GIORDANO,
Petitioner,
No. 3:11-cv-9 (SRU)
v.
UNITED STATES OF AMERICA,
Respondent.
RULING ON MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
The petitioner, Philip Giordano, seeks to vacate and correct his sentence pursuant to 28
U.S.C. § 2255. Giordano is confined at Federal Correctional Institution Tucson, in Tucson,
Arizona. Giordano’s section 2225 petition, filed on January 4, 2011, raises numerous grounds
for relief, stemming primarily from assertions that Andrew Bowman, his attorney at trial and on
direct appeal, rendered constitutionally ineffective assistance and that the sentence imposed by
the court was unconstitutional. See Pet’r’s Mot. to Vacate, Set Aside or Correct Sentence,
Giordano v. United States, No. 3:11-cv-9 (SRU), ECF No. 1. On December 2, 2011, Giordano
filed an amended petition, raising additional grounds for relief. See Pet’r’s Am. Mot. to Vacate,
Giordano v. United States, No. 3:11-cv-9 (SRU), ECF No. 77/84. 1 For the reasons discussed
below, Giordano’s section 2255 petition is DENIED.
I.

Background
Giordano is a former mayor of Waterbury, Connecticut. The conviction and sentence

that he challenges arose out of an unrelated investigation into potential political corruption in the
City of Waterbury during his tenure as mayor. The government received reports from a
confidential informant that Giordano had received cash from a reputed member of the Genovese

1

ECF No. 77 is Giordano’s redacted amended motion to vacate, set aside or correct his sentence, and ECF No. 84 is
the un-redacted version filed under seal.

1

La Cosa Nostra family, whose construction firm was awarded several city contracts while
Giordano was mayor. The confidential informant, referred to throughout this decision as “CW1,” had, at one point, been Giordano’s chief of staff and had worked on both his mayoral
campaigns and his 2000 campaign for United States Senate. The two had a falling out during
Giordano’s Senate campaign and, depending on whether the petitioner or the government’s
account is to be credited, Giordano either fired CW-1 or CW-1 left his job voluntarily.
CW-1’s conduct during his time on Giordano’s staff generated a fair amount of
controversy due to his management (or mismanagement) of funds and prompted an investigation
by the Waterbury Police, at Giordano’s request. The Waterbury Police investigation, however,
cleared CW-1 of any criminal wrongdoing. The affidavit supporting the government’s wiretap
request relied upon information provided by CW-1, but did not mention either the potential
wrongdoing on CW-1’s part or CW-1’s acrimonious relationship with Giordano. William S.
Reiner, Jr., the FBI agent who prepared the affidavit, independently corroborated some but not
all of the information provided by CW-1.
In February 2001, the government obtained an ex parte order from U.S. District Judge
Alan H. Nevas authorizing interception of Giordano’s phone communications pursuant to the
federal wiretap statute, 18 U.S.C. §§ 2510-2520 (“Title III”). Between February and July 2001,
the government monitored Giordano’s city-issued cell phones, renewing its Title III application
every thirty days and submitting periodic progress reports to the district court.
In the course of its corruption-related surveillance, the government intercepted 151 calls
on Giordano’s cell phones to or from Guitana Jones, then a prostitute with whom Giordano had a
long-term sexual relationship. One of those calls, placed on July 9, 2001, suggested that Jones
was bringing a nine-year-old girl to Giordano for sex. In another, on July 12, 2001, Giordano

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asked Jones whether she would bring over the nine-year-old or another female whose age was
not discussed. The girls – referred to as V1 and V2 throughout the criminal proceedings and this
ruling – were Jones’ nine-year old daughter (“V1”) and eleven-year old niece (“V2”).
On the afternoon of July 12, after reviewing the contents of those calls, the government
had an undercover police officer call Giordano’s cell phone and leave an anonymous, threatening
message indicating that the caller knew about Giordano’s activities with the victims and would
reveal Giordano’s actions to the media if he continued. The next day, July 13, 2001, the
government intercepted a call between Giordano and Jones in which they discussed the message
and who might have left it. During the call, Jones assured Giordano that no one knew about
Giordano’s activities with V1 and V2. She emphasized that the girls had revealed nothing,
because Jones “got them to the point where they’re scared, if they say somethin’ they’re gonna
get in trouble.”
On July 20, 2001, the government filed a criminal complaint against Jones charging her
with violations of 18 U.S.C. §§ 371 and 2425 and obtained a warrant for her arrest. The next
day, July 21, 2001, state authorities removed V1 and V2 from Jones’ household. Jones was also
arrested that day, after investigators saw her collecting $200 in cash from Giordano’s mailbox.
Earlier that day, Jones had successfully exploited Giordano’s concern regarding the anonymous
phone call by informing Giordano that the caller was a driver who knew about the abuse and was
demanding hush money. After her arrest, Jones assisted the FBI in its efforts to apprehend
Giordano by calling him and telling him that the driver was demanding more hush money, and
arranging an in person meeting on July 23, 2001.
The meeting occurred on July 23 as scheduled and Giordano gave Jones $500 in cash.
After that exchange, agents approached Giordano and informed him that they had evidence of his

3

sexual misconduct and political corruption. Over the next seventy-two hours, Giordano
cooperated with the agents in the ongoing investigation of other targets of the corruption
investigation. Giordano was arrested on July 26, 2001.
On September 12, 2001, a federal grand jury returned a fourteen-count indictment against
Giordano and Jones. The indictment charged Giordano with two counts of violating the civil
rights of V1 and V2 under color of law, in violation of 18 U.S.C. § 242; one count of conspiring
with Jones to transmit knowingly the names of V1 and V2 by using facilities and means of
interstate commerce with intent to entice, encourage, offer and solicit criminal sexual activity, in
violation of 18 U.S.C. §§ 371 and 2425; and eleven counts of substantive violations of 18 U.S.C.
§ 2425, each alleging a particular transmission via telephone of the name of V1 and/or V2 with
intent to entice, encourage, offer and solicit illegal sexual activity. Jones pleaded guilty to
several counts of the indictment on September 10, 2002, and entered into a written cooperation
agreement. On January 16, 2003, the grand jury returned a superseding indictment against
Giordano adding four additional counts of substantive violations of section 2425.
Prior to his trial, Giordano moved to dismiss the original indictment on several grounds,
asserting: (1) the counts alleging violations of 18 U.S.C. § 2425 failed to state federal offenses,
because section 2425 only applies to interstate telephone calls and the calls between Giordano
and Jones were all placed and received in Connecticut; (2) V1 and V2 did not have a federally
protected right to be free of “aggravated sexual abuse and sexual abuse,” because that right can
only exist within the special maritime and territorial jurisdiction of the United States or where
the defendant has crossed state lines to commit such sexual abuse; (3) he did not “act under color
of law” in allegedly committing acts that otherwise violated 18 U.S.C. § 242; and (4) the charges

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against him lacked the constitutionally required specificity. Judge Nevas denied that motion in
its entirety. United States v. Giordano, 260 F. Supp. 2d 477 (D. Conn. 2002).
Giordano also moved Judge Nevas to disqualify himself from deciding a motion to
suppress the wiretap evidence, because Judge Nevas had presided over the wiretap that Giordano
was challenging. Judge Nevas denied that motion and Giordano sought a writ of mandamus in
the Second Circuit, which denied Giordano’s mandamus petition by unpublished order. See In re
Giordano, No. 02–3095 (2d Cir. June 3, 2002). Giordano then filed a second motion for recusal,
on the grounds of bias. Judge Nevas denied that motion as well. See United States v. Giordano,
No. 3:01-cr-216 (AHN), 2002 WL 32086481 (D. Conn. Nov. 14, 2002).
Finally, Giordano moved to suppress the evidence discovered as a result of the wiretap
and also requested a Franks hearing. Judge Nevas denied both the motion to suppress and the
request for a Franks hearing. United States v. Giordano, 259 F. Supp. 2d 146 (D. Conn. 2003).
The federal authorities had shared information regarding the alleged sexual abuse of V1
and V2 with Connecticut state authorities. The state decided to take action and, as a result,
Giordano was facing state sexual assault charges concurrently with the federal charges. Prior to
Giordano’s federal trial, his attorney attempted to negotiate a global settlement with state and
federal authorities. Giordano did not accept the terms of the settlement and opted to go to trial.
Judge Nevas presided over Giordano’s federal jury trial from March 12 to March 24,
2003. The heart of the government’s case was the intercepted phone calls and the testimony of
Jones, V1 and V2, and, to some extent, the drivers who took Jones and the girls to see Giordano.
The government introduced 133 of the 151 wiretapped phone conversations between Giordano
and Jones, several of which explicitly reference Jones “bringing” V1, V2 or both to Giordano.
The government also presented expert evidence showing that that all of the calls were made on

5

phones capable of transmitting phone signals between states and that the actual calls described in
counts four through nine of the indictment (though not the other calls) necessarily were routed
through a switching center in White Plains, New York.
Jones testified that she met Giordano well before his 1995 election to the mayor’s office,
when Giordano was a lawyer in private practice, and that she frequently had sex with Giordano
in exchange for money, which she used to support her addiction to crack cocaine. Jones testified
that in the summer of 2000, Giordano asked Jones to bring “young girls” to perform sexual
services and that she brought several girls between the ages of fourteen and sixteen, including a
niece, to perform oral sex on Giordano. In November of 2000, Giordano indicated that he
wanted V1, who was then only eight years old, to perform oral sex on him. Jones testified that
she initially said “no,” but that she brought V1 to Giordano’s law office a few days later and
instructed her to touch Giordano’s penis until he ejaculated.
Several days later, Jones brought both V1 and V2, who was then ten years old, to
Giordano’s law office, where Jones performed oral sex on Giordano in the girls’ presence.
During the next visit, V1 performed oral sex on Giordano. After that episode, Jones testified that
the victims began to perform oral sex on Giordano with regularity, usually at Giordano’s law
office but occasionally elsewhere, including several times in the Mayor’s office at City Hall and
in Giordano’s official city car.
Jones testified that Giordano repeatedly and consistently warned her not to tell anyone
about the abuse and to make sure the girls did not say anything either. Giordano threatened that
Jones would go to jail if anyone found out. Jones testified that Giordano also repeatedly and
consistently told the girls that they needed to remain silent, or else they would “get in trouble”

6

and Jones would go to jail. Jones testified that she was afraid of going to jail, so she kept quiet
and made sure the victims did as well.
V1 and V2 testified at trial via closed-circuit television from another room, in which the
government’s attorney and defense counsel were present. Their testimony substantially
corroborated Jones’ concerning the nature of the acts they performed, the places they performed
the acts, and the warnings they received from Jones and Giordano. The victims both testified
that they did not tell anyone about the abuse because they feared Giordano. V2, who was twelve
at the time of the trial, testified that she was afraid “[b]ecause I didn’t know what a mayor was
and I was afraid, because he had money and I was afraid he could have someone hurt my family
and I was afraid he own everybody.” She “thought the Mayor could rule people, like be their
boss” and believed, based on Jones’ and Giordano’s warnings and threats, that Giordano “would
have someone hurt my family or that either I would get in trouble” if she revealed the abuse. V2
testified that the abuse hurt her physically and emotionally.
V1, who was ten at the time of the trial, testified that she understood that the mayor’s job
was to “[p]rotect the city” and “[w]atch[ ] over us, like God.” V1 could not remember whether
Giordano told her not to tell anyone about the abuse but testified that, like V2, she did not tell
anyone about the abuse because she feared Giordano and “thought he had power.” V1 believed
she “would get put in jail” if she told anyone and also thought her mother, Jones, would beat her.
Although Jones and the victims testified that both victims performed oral sex on
Giordano in various places, the FBI’s DNA expert testified that neither of the victims’ DNA was
found at the search scenes. Additionally, the victims’ testimony contained some inconsistencies
and inaccuracies. For example, one of the victims testified that Giordano had a tattoo on his

7

ankle, which was incorrect, and V2 testified that Giordano did not have any body hair, which
was also incorrect.
Giordano testified in his own defense at his trial. He admitted to paying Jones for sex
beginning at some point prior to February of 1993 and to having “occasional” sexual contact
with her from that time until his arrest. According to Giordano, Jones sometimes brought
children, including V1 and V2, with her to the law office when she went there to perform oral
sex on him. Giordano admitted that he sometimes asked V1 and V2 to come with Jones to his
office, but testified that he and Jones would leave them in a sunroom several rooms removed
from his office while Jones performed oral sex on him. Giordano testified that he “reluctantly
agreed” to Jones’ suggestion that she perform oral sex on him in V1 and V2’s presence on a
handful of occasions, but denied having any sexual contact of any kind with either V1 or V2 or
with Jones’ 16-year-old niece. Giordano testified that none of the intercepted calls referencing
V1 and/or V2 resulted in their accompanying Jones; the girls did not come to his law office at all
during the period when his calls were being monitored.
Giordano moved for a judgment of acquittal under Rule 29 of the Federal Rules of
Criminal Procedure at the close of the government’s case in chief and again at the close of trial.
Both motions were denied. The jury convicted Giordano on all counts of the indictment except
one of the section 2425 charges. After trial, Giordano again moved for a judgment of acquittal,
renewing the arguments that the district court previously had rejected. Judge Nevas denied
Giordano’s motion. United States v. Giordano, 324 F. Supp. 2d 349, 352–53 (D. Conn. 2003).
On June 13, 2003, Judge Nevas sentenced Giordano to a total of 444 months’ imprisonment.
After his conviction on the federal charges Giordano pleaded guilty to the state charges. He was
sentenced to eighteen years in state custody, to run concurrently with his federal sentence.

8

Giordano appealed his conviction and sentence. The Second Circuit affirmed by
published decision and unpublished order. See United States v. Giordano, 442 F.3d 30 (2d Cir.
2006); United States v. Giordano, 172 F. App’x 340 (2d Cir. 2006). The Court held, in relevant
part: (1) Giordano’s intrastate use of a telephone satisfied the jurisdictional element of section
2425 and section 2425 did not exceed Congress’ authority under the Commerce Clause; (2) there
was sufficient evidence that Giordano acted under color of law; (3) Judge Nevas was not
required to recuse himself from ruling on the motion to suppress evidence obtained from the
wiretap and did not err in denying Giordano’s motion for recusal on the ground of bias; (4) Judge
Nevas could lawfully amend a wiretap authorization under 18 U.S.C. § 2517(5) to allow the use
of evidence of crimes not specified at 18 U.S.C. § 2516 and the government acted in good faith
and “as soon as practicable” under § 2517(5) in requesting to amend the wiretap and adhered to
the minimization requirements of 18 U.S.C. § 2518(5); (6) Judge Nevas did not err in denying
Giordano’s motion for a Franks hearing, because there was insufficient evidence that the agent
who procured the warrant did so with knowledge of or with reckless regard to the falsity of the
affidavit supporting the warrant; (7) Judge Nevas did not err in permitting V1 and V2 to testify
remotely, via closed-circuit television and expert testimony was not required in order for Judge
Nevas to find that the victims were unable to testify in person due to fear; (8) none of the
evidentiary rulings that Giordano challenged on appeal amounted to an abuse of discretion,
including but not limited to the decision to prohibit cross-examination of the victims regarding
past sexual activity under Federal Rules of Evidence 402, 403 and 412(b)(1); and (9) the
computation of Giordano’s sentence under the United States Sentencing Guidelines (“Sentencing
Guidelines”) was not erroneous.

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The Second Circuit ordered a limited remand pursuant to United States v. Crosby, 397
F.3d 103 (2d Cir. 2005), for Judge Nevas to determine whether he would have imposed a
materially different sentence if the Sentencing Guidelines had been advisory at the time
Giordano was sentenced. Giordano appealed the Second Circuit’s ruling to the United States
Supreme Court. The Supreme Court denied certiorari on February 20, 2007. Giordano v. United
States, 549 U.S. 1213 (2007).
On remand, Judge Nevas held that he would not have imposed a materially different
sentence had the Sentencing Guidelines been advisory. United States v. Giordano, No. 3:01-cr216 (AHN), 2007 WL 2261684, at *1 (D. Conn. Aug. 6, 2007). The Second Circuit affirmed.
United States v. Giordano, 340 F. App’x 751 (2d Cir. 2009). The Supreme Court denied
certiorari on January 11, 2010. Giordano v. United States, 558 U.S. 1138 (2010). This timely
section 2255 petition followed.
II.

Standard of Review
In order to support a claim for relief under section 2255, a petitioner must establish that

his “sentence was imposed in violation of the Constitution or Laws of the United States.” 28
U.S.C. § 2255. “As a general rule, ‘relief is available under § 2255 only for a constitutional
error, a lack of jurisdiction in the sentencing court, or an error of law that constitutes a
fundamental defect which inherently results in a complete miscarriage of justice.’” Napoli v.
United States, 32 F.3d 31, 35 (2d Cir. 1994) (quoting Hardy v. United States, 878 F.2d 94, 97 (2d
Cir. 1989)). The standard is a high one; even constitutional errors will not be redressed through
a writ of habeas corpus unless they have had a “substantial and injurious effect” that results in
“actual prejudice” to the petitioner. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (internal
citations omitted).

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A federal prisoner may not use a section 2255 petition to relitigate questions that were
expressly or impliedly resolved during a direct appeal, absent “an intervening change of
controlling law, the availability of new evidence, or the need to correct a clear error or prevent
manifest injustice.” United States v. Becker, 502 F.3d 122, 127 (2d Cir. 2013) (internal citations
omitted); see also United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001); United States v. Munoz,
143 F.3d 632, 637 (2d Cir. 1998) (“A motion under § 2255 is not a substitute for an appeal.”). A
petitioner is also barred from bringing a claim on habeas review that was not properly raised on
direct review unless the petitioner is able to show “cause and actual prejudice” or “actual
innocence.” See Bousley v. United States, 523 U.S. 614, 622 (1998); Reed v. Farley, 512 U.S.
339, 354 (1994).
A petitioner may raise a claim of ineffective assistance of counsel that was not raised
previously at trial or on appeal. Strickland v. Washington, 466 U.S. 668 (1984); see also
Massaro v. United States, 538 U.S. 500, 504 (2003). That does not mean, however, that every
perceived error or questionable decision by counsel entitles a petitioner to relief. There is a
“strong presumption that counsel’s conduct falls within the wide range of reasonably
professional assistance.” Strickland, 466 U.S. at 689. The threshold for an ineffective assistance
claim is high, and courts have “declined to deem counsel ineffective notwithstanding a course of
action (or inaction) that seems risky, unorthodox, or downright ill-advised.” Tippins v. Walker,
77 F.3d 682, 686 (2d Cir. 1996). “The question is whether an attorney’s representation amounted
to incompetence under ‘prevailing professional norms,’ not whether it deviated from best
practices or most common custom.” Harrington v. Richter, 562 U.S. 86, 88 (2011) (citing
Strickland, 466 U.S. at 690).
Under Strickland, to prevail on an ineffective assistance claim, a defendant must

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demonstrate both: (1) that his counsel’s performance “fell below an objective standard of
reasonableness,” and (2) that “the deficient performance prejudiced the defense.” Strickland,
466 U.S. at 687-88. To satisfy the performance prong, the petitioner must show that counsel’s
performance was “outside the wide range of professionally competent assistance.” Id. at 690.
To satisfy the prejudice prong, the defendant “must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. Thus, the mere possibility that a particular deficiency might
have prejudiced the defendant does not warrant relief.
Under section 2255, a petitioner is entitled to a hearing “[u]nless the motion and the files
and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. §
2255(b). “Mere generalities or hearsay statements will not normally entitle the applicant to a
hearing . . . . The petitioner must set forth specific facts which he is in a position to establish by
competent evidence.” Dalli v. United States, 491 F.2d 758, 760-61 (2d Cir. 1974) (citations
omitted). In the absence of supporting facts, the court may resolve a petitioner’s ineffective
assistance of counsel claims without a hearing. See id. Moreover, even where a hearing is
warranted, a full testimonial hearing may not be required. See Chang v. United States, 250 F.3d
79, 85 (2d Cir. 2001) (citing Machibroda v. United States, 368 U.S. 487, 495 (1962)).
In some cases, it may be “perfectly appropriate,” “for the district court to proceed by
requiring that the record be expanded to include letters, documentary evidence, and, in an
appropriate case, even affidavits,” in lieu of a full-blown evidentiary hearing. Id. District courts
have discretion to choose such a “middle road,” in cases where it will avoid or at least minimize
“delay, the needless expenditure of judicial resources, the burden on trial counsel and the

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government, and perhaps the encouragement of other prisoners to make similar baseless claims
that would have resulted from a full testimonial hearing.” See id.
III.

Discussion
Giordano’s section 2255 petition enumerates nearly thirty grounds for concluding that

Andrew Bowman, his attorney at trial and on direct appeal, provided constitutionally ineffective
assistance under Strickland. Giordano also claims that newly discovered evidence that he is not
the father of one of the victims likely would have produced an acquittal, that a change in the law
would have vitiated his convictions under 18 U.S.C. § 2425, and that his Fifth and Sixth
Amendment rights to a fair trial were violated in various ways. Many of Giordano’s claims were
raised on direct appeal. Absent “an intervening change of controlling law, the availability of
new evidence, or the need to correct a clear error or prevent manifest injustice,” those claims are
procedurally barred. Becker, 502 F.3d at 127. For the reasons discussed, Giordano’s remaining
non-barred claims fail as well.
A. Procedurally Barred Claims
Giordano asserts several claims in his section 2255 petition that were litigated on direct
appeal. Giordano recognizes that claims raised on direct appeal may not be relitigated in habeas
proceedings, yet attempts to avoid the procedural bar by arguing that the law has changed or the
Second Circuit wrongly decided the issues. He also contends that Attorney Bowman
“ineffectively” raised and/or the Second Circuit failed to “fairly consider” some of the relevant
issues. Giordano, however, fails to establish an “intervening change of controlling law” or any
new evidence, and none of his claims evidence a “need to correct a clear error or prevent
manifest injustice.” Becker, 502 F.3d at 127; Sanin, 252 F.3d at 83; Munoz, 143 F.3d at 637.

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1. Jurisdiction under 18 U.S.C. § 2425
Giordano was convicted of conspiring with Jones to violate and of violating 18 U.S.C. §
2425, which prohibits, in relevant part, the use of facilities or means of interstate commerce to
initiate the transmission of identifying information of a minor under sixteen years old “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.” Giordano was charged with using a cellular
phone (and Jones with using a landline) to initiate the knowing transmission of the name of
either V1 or V2 or both with the intent to solicit, entice, encourage, and offer them to engage in
sexual activity. Giordano challenged his convictions under section 2425 in his motion for
judgment of acquittal, arguing that a telephone’s ability to cross state lines was not sufficient to
invoke federal jurisdiction when the calls in question were intrastate. See Giordano, 324 F.
Supp. 2d at 352-53. Judge Nevas rejected that argument and Giordano appealed.
On direct appeal, Giordano claimed that he did not violate section 2425, because
both he and Jones were physically located in Connecticut when all of the calls were
made; thus their telephones were not “facilities or means of interstate . . . commerce.”
See Giordano, 442 F.3d at 38. In the alternative, he argued that if section 2425 reaches
intrastate telephone calls, then the statute is unconstitutional, because Congress lacks the
power to regulate “intrastate calls” under the Commerce Clause. Id. (citing Jones v.
United States, 529 U.S. 848 (2000); United States v. Morrison, 529 U.S. 598 (2000);
United States v. Lopez, 514 U.S. 549 (1995)).
The Second Circuit rejected both arguments, holding that section 2425
unambiguously reaches the intrastate use of a telephone and that Congress did not exceed
its Commerce Clause powers in enacting section 2425. Id. at 40-42. The intrastate use of

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a telephone to transmit the name of a minor involves the use of a “facility or means” of
interstate commerce, because the national telephone network is a “facility of interstate . . .
commerce.” Id. at 39-40 (internal citations omitted). Moreover, “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.” Id. at 41 (citing Lopez, 514 U.S. at 558-59). Lopez, Morrison and
Jones involved statutes falling within a different category of Commerce Clause power,
and thus had no bearing on the constitutionality of section 2425. Id.
Having litigated and lost his challenges to the proper interpretation and
constitutionality of section 2425 on direct appeal, Giordano is barred from raising those
claims again in section 2255 petition. Giordano attempts to avoid the procedural bar,
however, by asserting that Judge Nevas’ decision is no longer good law in light of the
Tenth Circuit’s decision in United States v. Schaefer, 501 F.3d 1197 (10th Cir. 2007),
overruled in substantial part by United States v. Sturm, 672 F.3d 891 (10th Cir. 2012).
Giordano claims that he failed to raise this argument on direct appeal because the Tenth
Circuit’s decision was rendered several years after his conviction.
Giordano’s argument is wholly without merit. Schaefer involved a different
statute –18 U.S.C. § 2252(a) – and different statutory language. 2 Moreover, a Tenth
Circuit decision is not an intervening change of law binding on Judges in this district, and
a Tenth Circuit decision that largely has been overruled has little persuasive value
whatsoever. The law in this Circuit is clear, and Giordano is not entitled to relief.

2

The issue in Schaefer was whether the mere connection to the Internet established the jurisdictional nexus under
section 2252(a). The Tenth Circuit held that it did not, because “[t]he plain language of §§ 2252(a)(2) and (a)(4)(B)
speaks of movement in commerce, and giving the words used their ordinary meaning this signifies a movement
between states.” Schaefer, 501 F.3d at 1201 (internal citations and quotation marks omitted).

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2. “Color of Law” under 18 U.S.C. § 242
Giordano was also convicted of two counts of violating 18 U.S.C. § 242, which “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. Giordano, 442 F.3d
30, 42-47 (2006). The first count charged Giordano with depriving V1, who had not yet attained
twelve years of age, of her Fourteenth Amendment right to be free from sexual abuse by
touching her genitals and breasts and by coercing and forcing her to engage in fellatio and genital
contact with him. The second count charged the same with respect to V2.
Giordano challenged his convictions under section 242 on direct appeal, arguing
primarily that there was insufficient evidence that he had acted under “color of law.” He
emphasized that the evidence at trial demonstrated that Jones was a drug addict who engaged in
prostitution in order to support her drug habit and that Jones brought the girls to Giordano for the
same reason. Thus, even if the government adequately proved that Giordano had sexual contact
with the victims, no rational trier of fact could have concluded that the sexual contact was made
possible only because Giordano was cloaked with the authority of the office of Mayor. See
Defendant-Appellant’s Reply Br., United States v. Giordano, No. 03-1394, 2004 WL 5151463
(Sept. 2004). The Second Circuit rejected that argument, holding that Giordano’s understanding
of the law was incorrect and the facts supported his conviction. Giordano, 442 F.3d at 42.
Giordano’s section 2255 petition again contends that there was insufficient evidence that
he acted “under color of law,” i.e., that if the sexual abuse occurred it was “made possible only
because [he was] cloaked with the authority of state law.” Am. Mot. to Vacate at 6-7, 22, 26
(citing United States v. Classic, 313 U.S. 299, 325-26 (1941)); Pet’r’s Mot. for Evidentiary Hr’g
at 2, Giordano v. United States, No. 3:11-cv-9 (SRU), ECF No. 171 (same). The thrust of

16

Giordano’s reasoning, once again, is that if any abuse occurred, it did not occur solely due to his
status as the mayor, because Jones was largely if not completely responsible for forcing the
victims to engage in sexual contact with Giordano. The “but for” causation required by Classic
was therefore absent, and his convictions resulted in a “fundamental miscarriage of justice.”
Am. Mot. to Vacate at 26.
Giordano’s section 2255 petition also asserts claims of ineffective assistance of counsel
arising from or related to whether he acted under “color of law.” Specifically, Giordano
contends that Attorney Bowman was ineffective for: (1) failing to interview Jones’ 16-year-old
niece – referred to in this ruling as “RM” – and failing to procure relevant Department of
Children and Families (“DCF”) records, both of which would have demonstrated that Jones
repeatedly subjected minor females in her family to sexual exploitation in return for money to
support her drug habit; and (2) failing to object to the exclusion of the word “only” in the jury
instructions, which was plain error. 3
As Giordano acknowledges, the Second Circuit squarely addressed his “color of law”
arguments on direct appeal and rejected his interpretation of Classic. Giordano, 442 F.3d at 42.
The Second Circuit determined that the meaning of the phrase “under color of law” in section
242 was “more expansive” than Giordano maintained. Id. Classic covers a broad range of
conduct; it is not necessary for the crime to occur in the course of official business or to be
connected with the perpetrator’s office. Id. at 42-43. Moreover, contrary to Giordano’s
assertions, the word “only” in that decision refers to the perpetrator’s misuse of power, not his

3

Giordano further claims that defense counsel was ineffective for failing to challenge the government’s evidence
concerning his use of the trappings of his office – specifically his police badge – to procure sex. As the government
points out, however, Giordano himself challenged the government’s evidence in his own testimony by asserting that
he never used or carried his badge, and his counsel challenged the government witnesses’ assertions to the contrary.
See Gov’t Resp. to Am. Mot. to Vacate at 89-90, Giordano v. United States, No. 3:11-cv-9 (SRU), ECF No. 130.

17

access to the victim. See id. An official acts under color of law “when [his] misuse of official
power made the commission of a constitutional wrong possible, even though the official
committed abusive acts for personal reasons far removed from the scope of official duties.” Id.
at 44. Applying that standard, the Second Circuit concluded that the evidence at trial “was more
than sufficient to allow a rational trier of fact to find the [color of law] element satisfied beyond a
reasonable doubt.” Id. at 42-46.
Giordano cites United States v. Davis, 417 U.S. 333 (1974), for the proposition that I may
review the Second Circuit’s ruling in habeas proceedings. Davis, however, does not grant
district courts license to review an appellate court decision in the absence of an intervening
change of law. 4 Although Giordano’s arguments with respect to the “color of law” requirement
were adopted by the dissent in the Second Circuit, I am bound by the majority opinion.
Giordano may disagree with the Second Circuit’s interpretation of the law, but he presents no
facts or circumstances indicating that a “fundamental miscarriage of justice” occurred. His
challenge to the “color of law” element of section 242 is procedurally barred and Giordano is not
entitled to relief in that regard.
The Second Circuit’s interpretation of the “color of law” element of section 242 also
prevents Giordano from prevailing on the related claims of ineffective assistance of counsel.
With respect to the jury instructions, the language of the relevant instruction largely tracked
Classic, stating: “Misconduct made possible because the public official is clothed with the
authority of the law is action ‘under color of law.’” Gov’t Resp. to Am. Mot. to Vacate at 101,
Giordano v. United States, No. 3:11-cv-9 (SRU), ECF No. 130 (citing Jury Instructions at 32).

4

The issue in Davis was whether matters reviewed on direct appeal may be revisited in habeas proceedings if the
intervening change in law relates to the “laws of the United States” rather than the Constitution. The Supreme Court
held that changes in both constitutional and statutory law are reviewable in a section 2255 petition. Davis, 417 U.S.
at 344-46.

18

“Only” is the sole missing word. See Classic, 313 U.S. at 326. Giordano perceives that
omission as potentially dispositive, arguing it diminishes the strict “but-for” causation called for
in Classic.
The failure to object to a jury instruction generally does not constitute “unreasonably
deficient performance” under Strickland unless “the trial court’s instruction contained ‘clear and
previously identified errors.’” Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001) (citing Bloomer
v. United States, 162 F.3d 187, 193 (2d Cir. 1998). “[I]n order to show prejudice of the
magnitude needed to support a claim of ineffective assistance of counsel,” based on a failure to
object to a jury instruction, a defendant must demonstrate “a reasonable probability that but for
the failures to object, the jury would not have convicted him on some count on which it found
him guilty.” Bennett, 663 F.3d at 88.
Giordano points to no authority indicating that the exclusion of the word “only” from jury
instructions on “color of law” renders the instructions erroneous. He has therefore failed to
demonstrate that any such error was “clear and previously identified,” so as to render defense
counsel’s failure to object unreasonable. 5 Regardless, Giordano cannot demonstrate prejudice.
The Second Circuit rejected his interpretation of Classic and concluded that the evidence was
more than sufficient for the jury to conclude that the abuse was “made possible only because
[Giordano was] clothed with the authority of state law.” Giordano, 442 F.3d at 47 (internal
citations and quotation marks omitted). Thus, even if the omission of the word “only” was
erroneous, Giordano cannot demonstrate that its inclusion would have been reasonably likely to
produce an acquittal. See Bennett, 663 F.3d at 88.
5

It is not at all clear that exclusion of the word “only” even could have altered the meaning of the instructions in a
manner that might have misled the jury. The word “because” conveys a causal requirement and the remainder of the
instruction on “color of law” explains that a person “does not act under ‘color of law’ when he acts solely within the
ambit of his personal pursuits and there is no real nexus between the defendant’s official duties and the conduct
which gave rise to the alleged violations.” Gov’t Resp. at 101.

19

Giordano has likewise failed to show that Attorney Bowman was constitutionally
ineffective for failing to interview RM or, to the extent the defendant did not already possess the
relevant files, to obtain DCF records related to RM. First, it is difficult to grasp how counsel
might have been ineffective for failing to procure information about RM when RM was another
underage individual with whom Giordano allegedly had sexual relations. Whatever the extent of
her knowledge about Jones’ behavior and/or the victims’ background, Giordano cannot possibly
have contemplated calling RM as a witness at trial. An attorney in defense counsel’s position
would have wanted to do everything in his power to keep out as much evidence about RM as
possible. If Bowman had attempted to rebut the “color of law” element using RM, the results
almost certainly would have been devastating for Giordano.
Second, in light of the Second Circuit’s interpretation of the “color of law” element, any
additional information contained in RM’s DCF records would not have altered the outcome of
the case. The DCF records may indicate, as Giordano asserts, that Jones “groomed” RM for sex
by taking her to watch and later requiring RM to perform sexual acts herself. Am. Mot. to
Vacate at 6-7. The records also may indicate that Jones threatened RM to prevent her from
telling anyone about those activities. Id. That information, however, does not exculpate
Giordano.
Jones readily admitted that she prostituted the victims and RM because she needed
money for drugs. Giordano, 442 F.3d at 45 n.20. She also acknowledged her role in bringing
the victims to Giordano and ensuring that they kept quiet. Id. at 35-36 n.2. Yet, Jones also
testified that she did whatever Giordano asked and ensured that the girls did as well, because
Giordano was the mayor and she feared the consequences if she did not. Id. The victims
submitted to the abuse and kept quiet about it because they feared both Jones and Giordano. Id.

20

at 45-46. Crucially, they testified that they feared and obeyed Giordano because he was the
mayor and they believed that he had the power to harm them and their families. See id.
The Second Circuit recognized that Jones played a significant role in facilitating the
abuse and acknowledged that in other circumstances, Jones might have shouldered primary
responsibility. See id. at 45 n.20. The “color of law” requirement, however, is concerned with
whether the defendant “employs the authority of the state in the commission of the crime,” not
with whether the same crime could have been committed by an individual not cloaked with state
authority. Id. at 45 (citing United States v. Walsh, 194 F.3d 37, 41 (2d Cir. 1999)). The Second
Circuit affirmed Giordano’s convictions, notwithstanding Jones’ behavior and admitted role in
the abuse, because there was sufficient evidence that the “misuse of [Giordano’s] official power
made the commission of a constitutional wrong possible.” Id. at 44. Thus, DCF files showing
that Jones brought RM to other men would not undermine the conclusion that Giordano acted
under color of law in sexually abusing V1 and V2.
3. Evidence of the Victims’ Prior Sexual Activity under Rule 412
Giordano next argues that Bowman was ineffective for failing to raise the constitutional
due process violation caused by the disparate application of Rules 412 and 404(b) of the Federal
Rules of Evidence. Giordano contends that the government was unfairly “permitted to present
copious extraneous evidence regarding the petitioner’s penchant for women,” while he was
denied the opportunity to present evidence of V1 and V2’s prior sexual activity. 6 Giordano’s
brief also indicates that Bowman was ineffective for failing to obtain DCF records for V1 and V2

6

Giordano also claims that counsel was ineffective for failing to request a limiting instruction or to appeal the
admission of evidence relating to Giordano’s “penchant for women.” Am. Mot. to Vacate at 22. The record
establishes that Attorney Bowman did appeal the admission of evidence related to Giordano’s extramarital affairs.
Gov’t Resp. at 20 (citing Def.’s App. Br. at 96-104, United States v. Giordano, 172 F. App’x 340 (2d Cir. 2006)).
The Second Circuit affirmed, dismissing all but two of Giordano’s challenges to Judge Nevas’ evidentiary rulings
out of hand. Giordano, 172 F. App’x at 343-44.

21

that would have demonstrated that the victims had previous sexual experience and knowledge of
sexual terms, among other things.
Under Rule 412(a), evidence offered to prove that a victim engaged in other sexual
behavior and evidence offered to prove a victim’s sexual predisposition are generally
inadmissible in a civil or criminal proceeding alleging sexual misconduct. As relevant to this
case, Rule 412(b)(1)(C) provides an exception for “evidence whose exclusion would violate the
defendant’s constitutional rights.” At trial, defense counsel attempted to introduce evidence of
an alternative source of V1 and V2’s sexual knowledge and Judge Nevas denied admission of
that evidence. The Second Circuit affirmed on direct appeal, noting that the source of V1 and
V2’s knowledge of sexual terms was not at issue in the case. Giordano, 172 F. App’x at 344.
Thus, Giordano is procedurally barred from relitigating the issue in his section 2255 petition.
To the extent that the claims in his section 2255 petition are broader than the victims’
“knowledge of sexual terms,” Giordano presents no evidence that his constitutional rights to put
on a defense and confront witnesses were violated. United States v. Alvarez, No. 13-4259, 2015
WL 424326, at *2 (2d Cir. Feb. 3, 2015) (citing Holmes v. South Carolina, 547 U.S. 319, 324,
(2006); Davis v. Alaska, 415 U.S. 308, 309 (1974)). Whether or not the victims engaged in other
sexual activity has no bearing on whether or not Giordano committed the crimes alleged. This is
not a case where the victims were raped and the defendant must show that there was an
alternative source of semen or injury in order to put on a defense. See Fed. R. Evid.
412(b)(1)(A). Evidence of V1 and V2’s “sexual proclivity” falls squarely within Rule 412(a)’s
prohibition and excluding that evidence did not violate Giordano’s constitutional rights.
4. Recusal of Judge Nevas
Giordano’s moved Judge Nevas to recuse himself from deciding the defendant’s motion

22

to suppress evidence obtained from the Title III wiretap, because Judge Nevas authorized and
monitored the wiretap. Judge Nevas denied that motion and the Second Circuit affirmed.
Giordano also unsuccessfully moved for recusal of Judge Nevas on the ground of bias, see
Giordano, 2002 WL 32086481, at *3-4, and the Second Circuit affirmed that decision as well,
see Giordano, 172 F. App’x at 345.
In his section 2255 petition, Giordano contends that Attorney Bowman failed to
adequately prepare, argue and brief the first motion for recusal and failed to effectively present
critical arguments before the Second Circuit. Specifically, Giordano argues that Bowman failed
to raise “the most basic argument, that Judge Nevas was barred by Canon 3(c)(1)(A) of the Code
of Judicial Conduct [from] presiding over a Motion to Dismiss that was based on Judge Nevas’
initial monitoring.” Am. Mot. to Vacate at 11.
Whether or not Bowman ought to have addressed Canon 3(c)(1)(A), there is no prejudice
because Giordano’s argument is foreclosed by the Second Circuit’s ruling on his direct appeal.
The Second Circuit, whose Judges are thoroughly aware of the Code of Judicial Conduct, held
that “[t]he authorization of a wiretap under Title III does not ‘evidence the degree of favoritism
or antagonism required’ to necessitate recusal under § 455(a) from ruling on the admissibility of
the resulting evidence.” Giordano, 442 F.3d at 48 (quoting Liteky v. United States, 510 U.S.
540, 555 (1994)). The Court squarely confronted whether Judge Nevas was required to recuse
himself from ruling on the motion and held that he was not. Thus, Giordano cannot prevail on an
ineffective assistance of counsel claim in that regard.
Giordano’s section 2255 petition also claims that Judge Nevas was biased against him
and demonstrated that bias at trial by telling Giordano that he would impose a harsh sentence if
Giordano testified on his own behalf. Giordano asserts that Bowman was ineffective for failing

23

to object to or otherwise effectively challenge Judge Nevas’ bias. It is true that Judge Nevas
warned Giordano that there might be consequences under the then-mandatory Sentencing
Guidelines if he testified on his own behalf and was found guilty, but nothing in the record
supports Giordano’s assertion that Judge Nevas threatened him with a harsh sentence. 7 See Trial
Tr. at 1643-44, United States v. Giordano, 3:01-cr-00216 (AHN). To the extent that Giordano’s
section 2255 petition revives his original claims of bias, his arguments are procedurally barred.
See Giordano, 172 F. App’x at 345.
5. Interviews with Child Witnesses and Closed Circuit Testimony of Child Witnesses
Giordano claims that defense counsel failed to adequately prepare, argue, and brief an
Objection to the Government’s Motion for Order Allowing Child Witnesses to Testify by Closed
Circuit Television and failed to “effectively” raise that issue before the Second Circuit. He
asserts the same with respect to a Motion to Prohibit Unmonitored Interviews of the Alleged
Child Victims in the Absence of a Court Monitor and in the Absence of the Defendant’s Counsel
or Representative. Am. Mot. to Vacate at 17-18. The Second Circuit addressed the issues
together on direct appeal. See Giordano, 172 F. App’x at 343.
Judge Nevas allowed V1 and V2 to testify remotely under 18 U.S.C. § 3509, which
permits an alleged child victim to testify via two-way closed circuit television if, inter alia, she is
unable to testify in court due to fear. Giordano argues that allowing the victims to testify by
closed circuit television was prejudicial, because it indicated that Giordano caused them
“trauma,” which necessarily implied that he was guilty. Am. Mot. to Vacate at 17. On appeal,
however, the Second Circuit held that the district court’s factual findings satisfied the

7

Giordano appealed his ultimate sentence as “substantively unreasonable.” The Second Circuit affirmed his 444month sentence, noting that it was “at the upper end of the range of reasonableness for these offenses,” but that
Judge Nevas did not exceed that range. Giordano, 340 F. App’x at 753. The fact that Judge Nevas imposed a
“substantively reasonable” sentence also undercuts Giordano’s claims of bias.

24

requirements of Maryland v. Craig, 497 U.S. 836 (1990), the seminal case on the issue.
Giordano, 172 F. App’x at 343. Giordano is therefore barred from challenging the propriety of
the victims’ closed circuit testimony on habeas review.
Giordano’s claim regarding the pre-trial interviews of the victims also lacks merit,
because the government’s ability to interview the victims without an independent monitor or
defense counsel present did not impede Giordano’s ability to present a defense. Generally
speaking, a defendant may not access any statements or reports made by government witnesses
until the witness has testified on direct examination in the trial of the case. See 18 U.S.C. §
3500(a); see also United States v. Coppa, 267 F.3d 132, 146 (2d Cir. 2001). It therefore follows
that a defendant has no right to have counsel present in interviews of government witnesses or
otherwise dictate the terms of the interview. The Second Circuit considered and rejected
Giordano’s arguments on appeal, holding that neither Giordano’s Fifth Amendment right to a fair
trial nor his Sixth Amendment right to confront witnesses was violated. Giordano, 172 F. App’x
at 343 n.4. Giordano “was permitted to and did elicit from the child victims on crossexamination the fact that they had previously met with the government’s attorney and were
familiar with the questions they would be asked at trial.” Id. That was sufficient. 8 See id.

8

Giordano’s section 2255 petition also claims that Judge Nevas prohibited defense counsel from interviewing the
child victims. The government disputes that contention and Giordano appears to abandon it in his reply brief. See
Gov’t Resp. at 67; Pet’r’s Reply at 20, Giordano v. United States, No. 3:11-cv-9 (SRU), ECF No. 147. The reply
brief argues instead that, assuming defense counsel had the ability to do so, it is “unfathomable” that he did not
interview the girls in advance of the trial. That failure, combined with the lack of access to the DCF records,
ensured that Giordano was not fully apprised of the allegations and evidence against him until trial. Frankly, that
claim is preposterous. Giordano was fully aware of the nature of the charges and the bulk of the evidence against
him. He might not have believed that the girls would go through with testifying, but that does not mean that he did
not know what they might say. As the Second Circuit noted, Giordano had the opportunity to cross-examine the
victims regarding the fact that they had previously met with the government's attorney and were familiar with the
questions they would be asked at trial. See Giordano, 172 F. App’x at 343 n.4. Defense counsel also highlighted
inconsistencies in the girls’ testimony on cross-examination and in his closing argument. See Gov’t Resp. at 85
(citing Trial Tr. at 2056, 2059). Even if Giordano feasibly could have interviewed the victims before the trial, he
was not prejudiced by his counsel’s failure to do so because counsel anticipated what the victims might say and
effectively highlighted the weaknesses of their testimony at Giordano’s trial.

25

6. Sentencing and Resentencing
Finally, Giordano alleges that defense counsel was constitutionally ineffective for failing
to prepare an adequate sentencing memorandum or objections to the PSR and for failing to
“effectively raise” those issues at sentencing. Giordano also alleges that counsel failed to
adequately prepare for Giordano’s resentencing after the Crosby remand, which caused Judge
Nevas to “rubber stamp” Giordano’s original 444-month sentence, in violation of Nelson v.
United States, 555 U.S. 350 (2009), Kimbrough v. United States, 552 U.S. 85 (2007), and Rita v.
United States, 551 U.S. 338 (2007).
Attorney Bowman raised numerous objections to the PSR and strongly advocated for a
downward departure from the Sentencing Guidelines, both in the defendant’s sentencing
memorandum and at sentencing. See Gov’t Resp. at 90-91 (citing Def.’s Sent. Mem. at 1-16,
United State v. Giordano, 3:01-cr-216 (SRU), ECF No. 247). He also vigorously challenged
Giordano’s 444-month sentence on direct appeal, raising “a host of challenges to the
computation of his sentence under the Sentencing Guidelines.” Giordano, 172 F. App’x at 344.
Giordano’s section 2255 petition states that Bowman failed to adequately prepare a sentencing
memorandum, adequately object to the PSR, or effectively appeal, but it does not list a single
objection that Bowman should have but failed to raise or a single ground for downward
departure that was omitted. In the absence of any support for claims of ineffective assistance,
Giordano’s sentencing-related claims are procedurally barred, because he extensively challenged
his sentence on direct appeal.
Although the Second Circuit affirmed Giordano’s sentence, it remanded under Crosby
for a determination whether Judge Nevas would have imposed a materially different sentence
had the Sentencing Guidelines been advisory. Judge Nevas answered that question in the

26

negative, but contrary to Giordano’s assertions, his ruling on remand was hardly a “rubber
stamp.” Judge Nevas issued a written decision listing the reasons that he would not have
imposed a materially different sentence under an advisory Guidelines regime. Judge Nevas
noted that although the Sentencing Guidelines were mandatory at the time of Giordano’s
sentencing, he was not bound by the guidelines due to the government’s U.S. Sentencing
Guidelines Manual § 5K1.1 motion. United States v. Giordano, No. CRIM. 3:01CR216AHN,
2007 WL 2261684, at *2 (D. Conn. Aug. 6, 2007), aff’d sub nom. United States v. Giordano, 340
F. App’x 751 (2d Cir. 2009). Thus, he had “effectively treated the Guidelines as advisory” in
determining Giordano’s original sentence and imposed a sentence that was “considerably below
the otherwise then-mandatory applicable Guidelines range of life imprisonment.” Id.
Judge Nevas nevertheless proceeded to conduct an analysis of the relevant issues to
determine whether a different sentence was warranted under an advisory Guidelines regime. He
considered the section 3553(a) factors, the Sentencing Guidelines, the PSR and other relevant
portions of the record, and the arguments of counsel. After examining that information, Judge
Nevas concluded that Giordano’s sentence “was and still remains just, reasonable, and sufficient,
but not greater than necessary.” Id. at 3. The Second Circuit affirmed, holding that Judge Nevas
considered all of the relevant factors and that Giordano’s thirty-seven year sentence was not
substantively unreasonable. 9 United States v. Giordano, 340 F. App’x 751, 753 (2d Cir. 2009).
Id. Having litigated and lost on direct appeal, Giordano cannot challenge the reasonableness of
his sentence on habeas review. E.g., Becker, 502 F.3d at 127.
9

The Second Circuit disagreed with Judge Nevas’s conclusion that Giordano’s arguments at resentencing involved
circumstances different than those that existed at the time of sentencing. See id. That error was harmless, however,
because the government’s section 5K1.1 motion effectively rendered the Sentencing Guidelines advisory at the time
of Giordano’s original sentencing. Giordano, 340 F. App’x at 753. Thus, Judge Nevas was never barred from
considering various mitigating factors due to the then-mandatory nature of the Sentencing Guidelines and
considered all of the relevant arguments. See id. at 753-54.

27

B. Ineffective Assistance of Counsel Claims
Giordano retained Attorney Bowman in late July 2001 and Bowman represented
Giordano on both his federal and state charges through his federal trial, and on his federal
charges through resentencing on the Crosby remand. Bowman is an extremely experienced
criminal defense lawyer with over four decades of experience. He served as an Assistant United
States Attorney and as the Federal Defender for the District of Connecticut before entering
private practice.
Although neither an attorney’s level of expertise nor the amount of time and energy spent
on a case is sufficient to insulate that attorney from a claim of ineffective assistance of counsel, it
is apparent that Bowman ably represented Giordano. Bowman spent nearly 1,000 hours on
Giordano’s case, not including the direct appeal and petition for certiorari. Actions taken on
Giordano’s behalf prior to the trial include: (1) attacking the validity of the indictment, on both
legal and factual grounds; (2) moving to suppress evidence discovered as a result of the wiretaps;
(3) twice moving for recusal of Judge Nevas and appealing Judge Nevas’ first denial of recusal;
and (4) challenging the denial of bail. During the trial, he twice moved for acquittal on
Giordano’s behalf, at the end of the government’s case in chief and again at the close of the
evidence, and renewed those motions after Giordano’ conviction. Finally, as discussed above,
Bowman appealed Giordano’s conviction and sentence on numerous grounds, and attacked
Giordano’s sentence again on Crosby remand.
“[C]ounsel is strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S.
at 690; see also, e.g., Mills v. Scully, 826 F.2d 1192, 1197 (2d Cir. 1987) (same). The habeas
court must independently review the evidence, Kimmelman v. Morrison, 477 U.S. 365, 378

28

(1986); however, “[j]udicial scrutiny of counsel’s performance must be highly deferential,”
Strickland, 466 U.S. at 690.
“In evaluating the performance prong of an ineffective assistance claim, [courts] do not
view the challenged conduct through the ‘distorting’ lens of hindsight but ‘from counsel's
perspective at the time.’” United States v. Gaskin, 364 F.3d 438, 469 (2d Cir. 2004) (citing
Strickland, 466 U.S. at 689). Although ineffective assistance claims “invoke critical
constitutional principles and are to be taken very seriously,” they are “quite often the law’s
equivalent of ‘buyer’s remorse’ or ‘Monday morning quarterbacking.’” Yick Man Mui v. United
States, 614 F.3d 50, 57 (2d Cir. 2010). It is all too tempting for a defendant to “second-guess
counsel’s assistance after conviction or adverse sentence,” but the mere fact that the defendant
was convicted does not indicate that counsel’s performance was objectively unreasonable.
United States v. Simmons, 923 F.2d 934, 956 (2d Cir. 1991).
Much of Giordano’s section 2255 petition amounts to “Monday morning
quarterbacking,” criticizing aspects of Attorney Bowman’s strategy that were sound – and often
superior to any conceivable alternatives – yet did not yield the results that Giordano desired. See
Yick Man Mui, 614 F.3d at 57. It is unsurprising that Giordano would feel aggrieved by
counsel’s strategy, considering that, in large part, it proved unsuccessful. Yet, “that alone is
insufficient to establish his attorney’s ineffectiveness.” Simmons, 923 F.2d at 956.
Viewed in its totality, Bowman’s performance far exceeded “objectively reasonable”
representation. See, e.g., Solomon v. Comm’r of Correctional Servs., 786 F. Supp. 218, 226
(E.D.N.Y. 1992). Moreover, generally speaking, Giordano cannot demonstrate prejudice,
because the information revealed through the wiretaps, combined with the testimony of Jones
and the victims, provided overwhelming evidence of Giordano’s guilt. Simmons, 923 F.2d at

29

956 (denying ineffective assistance of counsel claim because, due to “plethora of evidence”
against defendant, there was “little reason to believe that alternative counsel would have fared
any better”); United States v. O'Neil, 118 F.3d 65, 73 (2d Cir. 1997) (“In the face of the
overwhelming evidence against him, [the defendant] cannot show that there is a reasonable
probability that, but for the alleged trial errors, the outcome of the trial would have been
different.”). Nevertheless, Giordano’s remaining claims of ineffective assistance of counsel are
addressed below.
1. Failure to File Motions in Limine
Defense counsel’s decisions regarding what pre-trial motions to file are matters of
strategy that courts are generally reluctant to scrutinize on habeas review. See Gaskin, 364 F.3d
at 468. Giordano nevertheless claims that Attorney Bowman was constitutionally ineffective for
failing to file several motions in limine.
Giordano first asserts that Bowman was ineffective in failing to file a motion in limine to
preclude the admission of Jones’ guilty plea and conviction and was “further derelict” in
emphasizing her guilty plea and conviction during his cross-examination of Jones. Am. Mot. to
Vacate at 7-8. According to Giordano, admission of Jones’ guilty plea and conviction was
“highly prejudicial,” because in an alleged conspiracy involving two participants, the guilt of one
appears to be “irrefutable evidence of the conspiracy itself,” and a limiting instruction could not
(and did not) counter the prejudicial effect of such testimony. Id.
A motion in limine seeking to preclude admission of Jones’ guilty plea and conviction
almost certainly would have been futile. Though “it is impermissible for a prosecutor to suggest
to a jury that the conviction of a testifying co-conspirator is evidence that a defendant on trial is
guilty . . . the government [may] elicit, for proper purposes and in a proper manner, an

30

accomplice witness' testimony regarding his conviction.” United States v. Louis, 814 F.2d 852,
856 (2d Cir. 1987) (internal citations omitted). “Proper purposes include disclosure of matters
damaging to the credibility of a witness and contradiction of any inference that the government is
concealing a witness' bias.” Id. Furthermore, the government may question a co-conspirator
witness about a guilty plea if it is used to “support the reasonableness of the witness’ claim to
first hand knowledge.” United States v. Halbert, 640 F.2d 1000, 1005 (9th Cir. 1981). So long
as the questioning is limited in scope and the co-conspirator’s guilty plea is not used as
substantive evidence of defendant’s guilt, the testimony is admissible. Louis, 814 F.2d at 856.
The admission of Jones’ conviction, which resulted from her guilty plea, was used for a
proper purpose. First, it provided background information regarding Jones’ first-hand
knowledge of Giordano’s illegal conduct. Second, it served to dampen Bowman’s later attempt
to challenge Jones’ testimony as biased in favor of the government. Both of these purposes are
proper and Giordano does not point to any instance where the government attempted to suggest
that Jones’ guilty plea could be used as substantive evidence of Giordano’s guilt. Accordingly,
Bowman was not ineffective for failing to move to preclude the testimony because such an
attempt would have been futile.
Even if Bowman could have succeeded on a motion to preclude Jones’ testimony about
her prior conviction, he was not required to bring the motion. Bowman’s decision to emphasize
Jones’ plea and conviction on cross-examination was strategically sound, especially because she
was a cooperating witness. See United States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998) (“It is
good practice for defense counsel to inquire into a witness's bias or motive to testify on crossexamination; such inquiries do not support a finding of prejudice under Strickland.”). Moreover,
any potential for prejudice, confusion of the issues or misleading the jury was adequately cured

31

by Judge Nevas’ instructions to the jury to “draw no conclusions or inferences of any kind”
about Giordano’s guilt from the fact that Jones pled guilty to similar charges, to not use Jones’
guilty plea as “evidence against or unfavorable to the defendant” and to examine Jones’
testimony critically, because as a cooperating witness she had a motive to testify falsely. See
Fed. R. Evid. 105 (“If the court admits evidence that is admissible . . . for a purpose – but not . . .
for another purpose – the court, on timely request, must restrict the evidence to its proper scope
and instruct the jury accordingly.”).
Giordano next asserts that Attorney Bowman ought to have filed a motion in limine to
preclude reference to his cooperation with the FBI’s corruption investigation and the anticipated
consideration of that cooperation at sentencing. Am. Mot. to Vacate at 8. He argues that
admission of such information allowed the jury to view his conviction as “inevitable.” Id. Yet,
Giordano provides no grounds for excluding the relevant information and, more importantly, no
explanation for why it would have made his conviction appear “inevitable.” Law-abiding
citizens regularly cooperate with authorities and the substance of the information provided by
Giordano had no bearing whatsoever on the charges of sexual abuse. Furthermore, it is possible
that Bowman wanted the jury to know about Giordano’s cooperation. After all, the jury could
have viewed Giordano’s cooperation with the government in a positive light. The notion that
Giordano was helping the government investigate public corruption might give the jury the
impression that Giordano was not the monster that the government was portraying him to be.
Finally, the jury was capable of comprehending that Giordano’s cooperation might play a
role at sentencing in the event of his conviction, without transforming that possibility into an
“inevitable” guilty verdict. It was therefore objectively reasonable for Bowman not to file a
motion in limine related to Giordano’s cooperation.

32

Finally, Giordano asserts that Bowman should have filed a motion in limine to “preclude
the introduction of evidence discussing the warrant process, to wit, the authorization by the court
approving the searches.” Am. Mot. to Vacate at 10. That evidence allegedly prejudiced
Giordano by vouching for the credibility of the affiant, Agent Reiner, who then testified to
factual matters in dispute at the trial. Id. Giordano cites no case indicating that the admission of
such information is improper, much less grounds for a claim of ineffective assistance of counsel.
Furthermore, Bowman fulfilled his duties as Giordano’s counsel by effectively cross-examining
Agent Reiner regarding the warrant process.
Even if evidence of the warrant process was inadmissible, Giordano does not establish
that he was prejudiced by its admission. The testimony regarding the warrant process played a
minor role in the trial and was not necessary to securing Giordano’s conviction. Giordano was
unharmed by any alleged vouching for Agent Reiner’s credibility because Agent Reiner’s
credibility was never in question.
2. Failure to Communicate Plea Offer
Giordano next asserts that Attorney Bowman failed to communicate a plea offer that
Giordano would have accepted instead of proceeding to trial. Giordano’s section 2255 petition
includes a copy of a letter from defense counsel to Giordano, which Giordano claims he never
received and did not know the contents of prior to filing his habeas petition. Am. Mot. to Vacate
at 8 and Ex. 2; see also Bowman Aff. Ex. B, Giordano v. United States, No. 3:11-cv-9 (SRU),
ECF No. 130-1. The letter, dated February 27, 2003, states that the government previously
offered Giordano a plea deal with a fifteen-year sentencing cap and that the State of Connecticut
was currently offering Giordano a plea deal with an eighteen-year cap. Defense counsel signed
the letter; Giordano did not. Bowman also initialed and dated the letter, noting that he gave it to

33

Giordano, but that Giordano refused to sign. Id.
It is well settled that counsel must always communicate to the defendant the terms of any
plea offer from the prosecution. Missouri v. Frye, 132 S. Ct. 1399, 1408 (2012); Cullen v.
United States, 194 F.3d 401, 404 (2d Cir. 1999). “Defense counsel have a constitutional duty to
give their clients professional advice on the crucial decision of whether to accept a plea offer
from the government” and the failure to communicate a plea offer falls below “an objective
standard of reasonableness” under the first prong of Strickland. Pham v. United States, 317 F.3d
178, 182 (2d Cir. 2003); Cullen, 194 F.3d at 403.
The failure to communicate a plea offer is prejudicial if there is a reasonable probability
that the defendant would have accepted the plea agreement if he had known of its terms. Id.; see
also Frye, 132 S. Ct. at 1409. A “significant disparity” between the sentence imposed and the
sentence in the plea offer, combined with the defendant’s credible statement that he would have
accepted the offer, is sufficient to support a finding of prejudice. Pham, 317 F.3d at 182.
In connection with the government’s response to Giordano’s section 2255 petition,
Bowman submitted an affidavit, which addresses Giordano’s contention that he failed to
communicate a plea offer with a fifteen-year cap, among other things. See Bowman Aff. ¶ 18.
The letter is attached as an exhibit to the affidavit. Id. Ex. B. The affidavit states that Bowman
read the letter to Giordano at Putnam County Jail in Carmel, New York, on February 27, 2003.
Id. ¶ 18.
Bowman’s affidavit goes into some detail about the various plea offers on the table
during the pendency of Giordano’s case. The affidavit notes that Bowman had regular access to
his client and spoke frequently with Giordano about all aspects of the case, including the
prospect of reaching a plea agreement with both federal and state prosecutors “to avoid the risk

34

of a very substantial sentence in the event of a conviction after trial in each jurisdiction.” Id. ¶ 2.
He informed Giordano that his exposure after trial on the federal charges could be as much as
life imprisonment. Id. ¶ 8. Giordano consistently denied having sexual contact with V1 or V2
and consistently denied using a phone to arrange a sexual liaison with either victim. Id. ¶ 9.
Bowman believed that if Giordano was going to plead guilty, then it was critical that he
do so pursuant to a global agreement with both federal and state authorities. Otherwise, the dual
sovereignty exception to the Constitution’s protections against Double Jeopardy would permit
any judicial admission in the federal case – including a guilty plea – to be used against Giordano
in the state sexual assault proceedings. He explained that to Giordano on numerous occasions,
but also explained that Giordano could not plead guilty to the federal charges while maintaining
his innocence, because Judge Nevas would not accept an Alford plea. Id. ¶ 7, 10. As a lawyer,
Giordano had no trouble grasping these concepts. Id. ¶ 10. Giordano authorized Bowman to
speak with state and federal authorities regarding a plea agreement, which Bowman did. Id. ¶ 7.
The affidavit describes various meetings Bowman had with federal and state authorities.
Bowman and Giordano met with the government at the United States Courthouse in New Haven
on November 20, 2001 and January 10, 2002. At those meetings, the government expressed a
willingness to agree to a Rule 11(c)(1)(C) plea. Id. ¶ 10-11. Bowman communicated the
possibility of a fifteen-year cap on the federal charges to Giordano, but Giordano rejected such a
lengthy sentence. Id. ¶ 11. By early March 2002, the government was willing to consider a
Sentencing Guidelines range of ten to twelve years on the federal charges and Bowman was
prepared to speak to the state’s attorney and the Superior Court Judge assigned to Giordano’s
state-court proceedings regarding a global resolution around the ten-year mark. Id. ¶ 13. He
communicated that information to Giordano, but Giordano was unwilling to plead guilty in

35

exchange for even a ten-year sentence. Bowman memorialized his discussion with Giordano in a
memo to file on March 3, 2002. Id. That memo is attached as an exhibit to Bowman’s affidavit.
Id. Ex. A.
On April 29, 2002, Bowman met with the Connecticut State’s Attorney and the Superior
Court Judge. At that meeting, the state’s attorney “maintained a hard position at 20 years
concurrent with a federal sentence.” Id. ¶ 15. Bowman met with the state’s attorney again on
January 24 and 27, 2003, in “an attempt to get some downward movement.” Id. ¶ 16. Assistant
United States Attorney Peter Jongbloed and the Superior Court Judge were also present at the
January 27 meeting. At that meeting, the state’s attorney agreed to an eighteen-year sentence on
the state charges, but refused to award credit for federal pretrial detention, which meant that
Giordano would still face an approximate twenty-year term of confinement. Id. ¶ 17.
Bowman orally informed Giordano about the substance of those meetings immediately
after they happened. Id. He prepared the above-mentioned letter despite the fact that he had
previously informed Giordano of its contents orally, because Giordano’s trial was imminent and
he wanted to make sure that Giordano fully comprehended his options. Id. ¶ 18. Giordano
continued to maintain his innocence and would not admit to the elements of the federal charges
related to V1 and V2. Id.
Attorney Bowman did not have any additional meetings with the government, but he
continued to speak with Giordano about the possibility of pleading guilty up until the point that
Jones, V1 and V2 testified at the trial. On March 15, 2003, Bowman spoke with Giordano
regarding the need to plead guilty before Jones and the girls testified and he advised Giordano
not to testify on his own behalf. Id. ¶ 19. Giordano rejected Bowman’s advice on both accounts,
which prompted Bowman to file a declaration under seal regarding the advice he had given to

36

Giordano. Id.
As a final matter, the affidavit notes that a meeting between Bowman, Giordano and
Giordano’s family was arranged at the United States Courthouse in New Haven. Id. ¶ 12. The
purpose of the meeting was to advise Giordano’s family of the plea discussions under
consideration. The affidavit does not specify when the meeting occurred. See id.
Bowman’s affidavit was detailed and thorough and there was no reason to doubt his
credibility. Nevertheless, Giordano’s sworn statement, combined with his failure to sign the
letter, gave rise to the need for an evidentiary hearing. I held an evidentiary hearing on July 24,
2015. Bowman testified at the hearing, as did Giordano, Giordano’s ex-wife, and Giordano’s
sister.
Bowman’s testimony confirmed and elaborated upon the substance of his affidavit. He
testified that throughout his representation of Giordano, he repeatedly and consistently engaged
in plea discussions with the government and the state’s attorney and the Superior Court Judge.
Bowman stated that it was his practice to communicate all plea offers to clients and he was
confident that he communicated the substance of every plea offer to Giordano within a day or
two of his discussions with the relevant authorities.
Bowman testified that the state’s attorney posed a significant impediment to resolving the
charges throughout, because he was hostile toward Giordano. According to Bowman, the state’s
attorney was angry and embarrassed that he had been excluded from the federal investigation and
“wanted his pound of flesh.” That circumstance, combined with Giordano’s persistent refusal to
admit to any aspects of the sexual abuse, made it difficult to negotiate a plea agreement.
Bowman asserted that he memorialized the contents of his March 3, 2002 meeting with
Giordano because it seemed like it might be a milestone in the case. The government had been

37

offering fifteen years and the state wanted twenty, to run concurrent. Bowman’s understanding
was that Giordano believed he should not serve more than eight to ten years in prison.
Therefore, the government’s openness to a ten-to-twelve-year Sentencing Guidelines range on
the federal charges was much more in line with what Giordano seemed willing to accept.
Bowman was encouraged, and thought that if he could get the state’s attorney on board then a
global resolution at ten years might be possible. Giordano, however, would not accept ten years
and the state would not budge on its position either. Bowman thought the meeting with
Giordano’s family might have occurred prior to the discussions that led to the March 3, 2002
memorandum, but he could not recall. He likewise could not recall whether the family meeting
related to the threat Giordano and his family would have been under if he was required to testify
as a cooperating witness.
Bowman recalled the government’s letter of February 5, 2003 regarding the viability of
pretrial resolution of the federal charges. The letter, which was introduced into evidence at the
evidentiary hearing, states that the government previously had offered a fifteen-year sentencing
cap if Giordano agreed to plead guilty to two of the section 2425 counts – one involving each
victim – along with one RICO conspiracy offense related to political corruption and one count of
filing a false tax return. 10 Evidentiary Hr’g Ex. 3, Giordano v. United States, No. 3:11-cv-9
(SRU), ECF No. 219 (exhibit list). The letter notes that the parties had engaged in significant
efforts to resolve the federal charges, but that it appeared Giordano would proceed to trial
because he had been unable to resolve the associated state charges. The letter was intended to
serve as a “formal notice” that the government’s outstanding offer (presumably, the offer for a
fifteen-year cap that Giordano had not explicitly rejected) would be withdrawn at 10:00 a.m. on

10

The letter also states that the government had provided an alternative offer, which Giordano rejected, that would
have required him to plead guilty to the section 242 counts in lieu of the section 2425 counts.

38

February 10, 2003. The government’s letter does not foreclose the possibility of later plea
negotiations, but warns that any subsequent offer would be on terms less favorable to Giordano.
See id.
Bowman testified that he was sure he communicated the contents of the February 5 letter
to Giordano, even though nothing in his file memorializes that conversation. He could not recall
whether the offer discussed in the letter would have required Giordano to testify as a cooperating
witness in another criminal proceeding. In any event, the February 10 deadline passed without
Giordano agreeing to plead guilty.
At the evidentiary hearing, as in the February 27, 2003 letter, Bowman remained adamant
that there was still a deal to be made even after the government’s plea offer expired on February
10, 2003. The government did not want V1 or V2 to testify, because children can be
unpredictable witnesses and testifying would be traumatic for them. Bowman believed that
reality gave Giordano leverage and that he could have negotiated a plea deal up until the point
that V1 and V2 testified at Giordano’s March 2003 federal trial. Given the damaging nature of
the evidence against Giordano, Bowman believed Giordano should accept the government’s
fifteen-year cap, but Bowman respected Giordano’s constitutional right to maintain his
innocence and proceed to trial.
Bowman testified that the February 27, 2003 letter was designed to memorialize the thenpresent state of affairs for Giordano and to make sure he understood the position he was in
before opting for trial. Bowman decided to put things in writing in addition to communicating
with his client orally, because he was concerned at that point that he was not getting through to
Giordano. He wanted written confirmation that Giordano fully comprehended the relevant
information.

39

Bowman testified that Giordano refused to sign the letter after hearing its contents
because he was “put off” by the letter and wanted nothing to do with it. Bowman did not believe
that Giordano’s failure to sign the letter represented a breakdown of their relationship; it simply
reflected Giordano’s persistent lack of interest in taking a plea. 11 Giordano had a constitutional
right to persist in his not-guilty plea. He consistently maintained his innocence, and Bowman
respected that. According to Bowman, Giordano never said that he wanted to plead guilty.
Bowman testified that he nevertheless continued to try to negotiate a plea deal (in
addition to vigorously preparing for trial), because he wanted to make sure that avenue remained
open to Giordano should he change his mind. In Bowman’s opinion, Giordano did not accept a
plea offer because he believed that the victims would not have the courage to testify against him
at trial. Without the testimony of the victims, Giordano thought that he could beat the charges
and he therefore opted to put the government to its proof.
Giordano’s recollection of the plea negotiations differed greatly from Bowman’s. In
Giordano’s view, the government was only interested in Giordano because they wanted to take
down another individual who was a primary target of the corruption investigation. The
government sought Giordano’s assistance in that regard. V1 and V2 were of secondary concern.
Giordano testified that a plea offer from the government contemplating a ten-to-twelveyear Sentencing Guidelines range was on the table from the outset. Under the terms of that offer,
Giordano would have pleaded guilty to three counts of corruption and one sexual abuse charge
for each victim. The deal, however, also would have required Giordano to testify against the
individual the government sought to indict. That meant that the government would file a section

11

Bowman testified that the only issue between Giordano and himself that was contentious enough to go to the
“heart” of the attorney-client relationship was the issue whether Giordano should testify in his own defense. As
discussed in greater detail elsewhere in this opinion, Bowman thought that it was not in Giordano’s best interest to
go to trial and believed that Giordano could severely hurt his case by testifying.

40

5K1.1 motion, likely decreasing his federal sentence further. Yet, it also meant that Giordano
would have had to go into witness protection.
Giordano agreed with Bowman’s testimony that the state’s offer was never less than
eighteen years. Contrary to Bowman’s assertions, Giordano testified that he was not averse to
the idea of spending so many years in prison and could live with the stigma of being labeled a
sex offender. Giordano testified that he wanted to do what was best for his family; if that meant
pleading guilty then he would have done so, but he did not want to accept a plea offer that his
family was not comfortable with or that would put them in danger. He only rejected the
government’s offer because he feared that if he cooperated, served his federal sentence, and then
was released into state custody without any protection, he would risk retaliation from those he
cooperated against, which would jeopardize his own safety and that of his family.
The purpose of the family meeting at the federal courthouse in New Haven was to
determine if the plea offer made sense for the whole family. Giordano’s ex-wife Dawn and his
sister Maria attended the meeting in New Haven. Both women testified about the meeting at the
evidentiary hearing and their testimony mirrored Giordano’s. Both recalled that the offer would
have required Giordano to plead guilty and testify against the individual the government sought
to indict in exchange for a ten-to-twelve-year sentence. Neither was independently aware of the
terms of the government’s plea offer, however. Their knowledge of the contents of the offer
derived solely from what they were told at the meeting. Both women believed that Giordano
was open to pleading guilty, despite maintaining his innocence, if there was an acceptable plea
offer. At the meeting they decided, as a family, that Giordano should reject the government’s
offer. Neither Dawn nor Maria knew of any other plea offer that was ever on the table.
Giordano testified that Attorney Bowman never communicated an offer for a fifteen-year

41

cap and that he would have communicated any such deal to his family. Giordano asserted that he
would have accepted a fifteen-year cap if it did not require him to testify against the relevant
individual. Such a deal would have eliminated all of his concerns about pleading guilty, because
his family would be safe and he would not have to go to prison as someone who had cooperated
against a member of a prominent criminal family. Attorney Jongbloed, however, pointed out
that Giordano did cooperate in the government’s investigation into that individual and that
cooperation is now a matter of public record.
Giordano denied ever being asked to sign the February 27, 2003 letter and denied being
aware of its contents prior to filing his section 2255 petition. He testified that he never would
have gone to trial with Bowman as his counsel if he felt their relationship had broken down to
that degree. Giordano likewise denied ever being made aware of the government’s February 5,
2003 letter.
Giordano presented a cohesive narrative, but he came across as slick and calculating, and
his testimony was entirely self-serving. In contrast, Bowman’s testimony was entirely credible;
Bowman presented as an honest person and a very competent attorney. Although he could not
remember the details of certain events and had not written everything down, Bowman was not
defensive about his shortcomings. He recounted the critical moments quite clearly and
effectively explained Giordano’s position (and the position he was in as Giordano’s attorney)
throughout the plea negotiations. Giordano’s case was clearly a large part of Attorney
Bowman’s life at the time and he appeared affected by his client’s present situation – testifying,
somberly, that what happened to Giordano was “tragic.”
The most damaging aspect of Giordano’s testimony, however, was not his demeanor, but
his assertion that he would have accepted a plea offer, despite maintaining his innocence to this

42

day. Giordano testified that his family came first and he would have pleaded guilty if he thought
that was best for his family. He also stated that he would have pleaded guilty to make things
better for everyone involved, including the victims. When probed, however, Giordano continued
to deny that he committed sexual abuse.
Giordano acknowledged that Judge Nevas would not have accepted an Alford plea, but
seemed to believe that he could have pleaded guilty without admitting to any sexual contact
between himself and the victims. At his trial, Giordano testified that Jones sometimes brought
the girls with her and that he would leave the door open so he could watch them playing in the
waiting room while Jones performed oral sex on him. Those actions arguably could have given
rise to liability under section 2425; however, given the nature of the charges, it is inconceivable
that the government or Judge Nevas would have permitted Giordano to plead guilty without his
admitting to the abuse.
Giordano is clearly a person who will stop at nothing to get what he wants. His
willingness to twist the truth, if not commit outright perjury, is devastating to his credibility. I
find that Attorney Bowman communicated the plea offer discussed in the February 27, 2003
letter to Giordano and that Giordano refused to sign. I further find that Bowman communicated
every plea offer, along with all other material information, to his client. But even if he had not,
Giordano cannot prevail on his ineffective assistance of counsel claim, because he was not
prejudiced by Bowman’s failure to communicate any plea. The parties agree that Giordano was
not offered an Alford plea, which would have permitted him to accept a plea agreement while
maintaining his innocence. See North Carolina v. Alford, 400 U.S. 25 (1970); U.S. Attorney’s
Manual, 9-27.440 (U.S.A.M.), 1997 WL 1944713, at *1 (Sept. 2006) (stating government’s
policy against entering into Alford plea agreements). Giordano was aware that he “would not be

43

able to take an Alford plea” and knew he would have had to admit guilt in order to accept the
terms of the government’s plea agreement. Evidentiary Hr’g Tr. at 132. However, Giordano
maintains his innocence to this day and did so under oath at the evidentiary hearing. Thus,
Giordano has not demonstrated that he would have accepted any plea offer, no matter the terms.
3. Denial of Franks Hearing
A significant portion of Giordano’s section 2255 petition is devoted to the claim that
Attorney Bowman failed to adequately prepare, argue and brief his motion for a Franks hearing
to test the validity of the affidavit supporting the government’s request for a Title III wiretap. 12
Bowman submitted only a three-sentence affidavit prepared by Giordano and a newspaper article
that had “very little relevance” to Giordano’s claims along with the briefs in support of a Franks
hearing. Am. Mot. to Vacate at 11. Judge Nevas denied the request for a Franks hearing
because Giordano’s brief and supporting affidavit did not establish any wrongdoing on the part
of the affiant, Agent Reiner. The Second Circuit affirmed on direct appeal. Giordano now
claims that he was and is entitled to a Franks hearing and that Bowman’s failure to obtain a
hearing caused him prejudice.
A “presumption of validity” attaches to a law enforcement officer’s affidavit; however,
“in certain circumstances a defendant is entitled to a hearing to test the veracity of the affiant’s
statements.” United States v. Falso, 544 F.3d 110, 125 (2d Cir. 2008) (citing Franks v.

12

Giordano’s section 2255 petition raises three additional challenges to the wiretaps: (1) Bowman failed to
“adequately prepare, argue, and brief” the motion to suppress wire and oral interceptions before the trial court and
failed to “effectively” challenge the wiretaps on appeal; (2) the use of the intercepts to procure the federal
indictment violated 18 U.S.C. § 2515 and Bowman was ineffective for failing to object; and (3) it was improper to
release the intercepts to state authorities before the legality of the wiretap was determined and Bowman was
ineffective for failing to object to that, as well. All three claims may be dismissed out of hand. Regarding the first
two, the record reflects that Bowman vigorously challenged the wiretaps on numerous grounds (including that the
government violated 18 U.S.C. § 2515) both at the trial level and on appeal. See Giordano, 259 F. Supp. 2d at 15255; Giordano, 172 F. App’x at 342-43. Regarding the third, Judge Nevas first authorized the wiretap in February
2001. Moreover, as Giordano recognizes, the Second Circuit confirmed the legality of the intercepts. Thus,
Giordano was not prejudiced by any premature release of the wiretaps to the state authorities.

44

Delaware, 438 U.S. 154, 171 (1978)). In Franks, the Supreme Court held that, “where a
defendant makes a substantial preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant
affidavit,” the Fourth Amendment requires a hearing be held at the defendant’s request if the
allegedly false statement is necessary to the finding of probable cause. Franks, 438 U.S. at 15556. “Material omissions from an affidavit are governed by the same rules as false statements.”
United States v. Campino, 890 F.2d 588, 592 (2d Cir. 1989).
The defendant’s attack “must be more than conclusory and must be supported by more
than a mere desire to cross-examine.” Franks, 438 U.S. at 171. His allegations must be
accompanied by an offer of proof, “point[ing] out specifically the portion of the warrant affidavit
that is claimed to be false,” explaining the ways in which it is false, and furnishing “[a]ffidavits
or sworn or otherwise reliable statements of witnesses,” if possible. Id. If sworn statements are
not provided, then “their absence [must be] satisfactorily explained.” Id.
Importantly, the relevant “deliberate falsity or reckless disregard” is “that of the affiant,
not of any nongovernmental informant.” Id. at 171. Allegations of negligence or innocent
mistake on the part of the affiant do not warrant a hearing. Id. “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.’” Campino, 890 F.2d at 592 (citing Franks, 438
U.S. at 165).
Giordano argues that a Franks hearing was (and is) warranted because the government’s
primary confidential informant, CW-1, was biased against Giordano and had ample motive to
lie. 13 According to Giordano, CW-1 provided the government with false information about his

13

Giordano also claims that the government presented the court with false information in one of its applications for
extension of the wiretap, stating that it had only heard the end of a potentially incriminating conversation when it

45

relationship with Giordano and with false information about Giordano’s involvement in the
alleged corruption. CW-1 also presented Agent Reiner with releases bearing Giordano’s initials
that, Giordano claims, were forged. See Am. Mot. to Vacate at 13 and Exs. 6-7.
Giordano asserts that a cursory investigation by Agent Reiner, who served as the affiant
for the initial Title III application and subsequent re-authorizations, would have revealed that
CW-1 was not a reliable informant. Giordano argues that the government wrongfully omitted
information about CW-1’s motivation to lie from the affidavit and knowingly or recklessly
disregarded the truth when it stated that it had exhausted all reasonable investigative measures
before applying for a Title III warrant. Giordano also accuses the government of drafting the
false releases itself, or at least of knowing about CW-1’s criminal activities and therefore his
unreliability.
Attorney Bowman advanced similar arguments in his brief supporting the request for a
Franks hearing and at the January 6, 2003 hearing on the defendant’s motion to suppress
evidence discovered as a result of the wiretaps. See Suppression Hr’g Tr. at 2-13, United States
v. Giordano, 3:01-cr-00216 (AHN), ECF No. 158. At the hearing, Bowman asserted that the
government’s wiretap affidavit contained material omissions regarding CW-1’s character,
portraying him as a “pristine individual” with “no prior criminal record,” and also neglected to
discuss CW-1’s “motive to lie and to hate Philip Giordano.” 14 Id. at 3. He claimed that
Giordano’s initials on the releases signed by CW-1 were forged and that that information was
material, because CW-1’s information “permeat[ed] the entire affidavit” and there would have
been no probable cause to monitor Giordano’s calls without it. Id. at 6, 8, 20-21. Bowman

had actually heard the entire conversation. Am. Mot. to Vacate at 16. Giordano does not identify which application
included the purported false statement, so I cannot evaluate the merit of his contention. Accordingly, the claim fails.
14
Attorney Bowman acknowledged that CW-1 technically did not have a criminal record, but argued that that was
misleading. Id. at 5-7.

46

argued that a reasonable investigation by the government would have disclosed the relevant
information so, at the very least, the government acted with reckless disregard for the truth. See
id. at 3.
Despite the similarities between the arguments advanced by Bowman and those set forth
in Giordano’s section 2255 petition, Giordano claims that Bowman rendered constitutionally
ineffective performance. Judge Nevas denied the request for a Franks hearing in part because he
viewed Bowman as raising arguments at the hearing that were not included in Giordano’s briefs
or any supporting documents. Id. at 10-11, 18-20. Judge Nevas held that only the briefs,
Giordano’s three-sentence affidavit and the newspaper article should be considered, and those
documents were insufficient establish the “substantial preliminary showing” necessary for a
Franks hearing. Id. at 18.
Giordano’s section 2255 petition lists several witnesses who could have testified in
support of his request for a Franks hearing and confirmed that CW-1 was motivated to and did
provide false information to Agent Reiner. In support of that assertion, Giordano points to
certain documents that CW-1 provided to Agent Reiner in the course of their communications.
The referenced documents were purportedly agreements between CW-1 and Giordano, in which
Giordano had released CW-1 from any and all liability stemming from dealings related to
Giordano’s political ambitions, among other things. Giordano’s initials were on the signature
line of each of the releases, though Giordano claims he never signed them. Giordano’s section
2255 petition includes sworn statements from three people: James Paolino and Madellaina
DiBona, who might lend support to the notion that the releases were forgeries, and Pasquale
Mangini, a comptroller for the City of Waterbury during Giordano’s mayoralty, about whom
CW-1 allegedly provided false information. Giordano faults Bowman for not making use of

47

those individuals in preparing the request for a Franks hearing.
The evidence presented in support of Giordano’s request for a Franks hearing,
admittedly, was scant. Nevertheless, Giordano has not demonstrated that Attorney Bowman’s
performance was “objectively unreasonable” under the circumstances or that Giordano was
prejudiced by any ineffective assistance. Bowman cannot be held to have provided ineffective
assistance for failing to interview or obtain an affidavit from James Paolino, because Paolino was
counseled not to speak with Bowman and Paolino would have invoked his Fifth Amendment
privilege at the hearing. Suppression Hr’g Tr. at 21. With respect to Mangini, it is not clear
whether Bowman considered interviewing Mangini or obtaining an affidavit from him, but there
were ample reasons to avoid getting Mangini involved. Although Mangini could have testified
that CW-1 was untrustworthy and could have rebutted some of CW-1’s statements related to
Mangini, Mangini also believed that Giordano was untrustworthy because he believed Giordano
lied to him about matters related to the subject of the government’s corruption investigation.
See, e.g., Mangini Dep. 58:19-61:6.
Regarding the other witnesses, Giordano makes no showing that their testimony would
have discredited the affiant, Agent Reiner, rather than the informant, CW-1. Judge Nevas
ultimately denied Giordano’s request for a Franks hearing because there was no evidence that
Agent Reiner knowingly or recklessly disregarded the truth. Bowman may have failed to
effectively brief the motion, but unless Giordano can present evidence that implicates Agent
Reiner’s state of mind, he cannot demonstrate prejudice.
As Judge Nevas discussed in his ruling, Franks does not require disclosure of all
information on any cooperating witness whose record was less than “pristine.” Suppression Hr’g
Tr. at 8-9. Cooperating witnesses often have less than perfect records, but unless their “wart[s]”

48

relate to the substance of the affidavit there is no need to disclose everything known about them.
Id. at 9. Agent Reiner knew that CW-1 and Giordano had had a falling out, but he did not need
to disclose that because he had adequate reason to credit CW-1’s account. Id. at 17.
First, the government was entitled to rely on the Waterbury Police Department’s
investigation of CW-1, which effectively exonerated CW-1 of criminal wrongdoing in
connection with his activities as a member of Giordano’s staff. See id. at 12. Second, there is no
indication that Reiner knew or suspected that the releases were forged – and Giordano’s selfserving assertions to the contrary are insufficient to undermine that conclusion. DiBona and
Paolino might have been able to convince Agent Reiner otherwise, but his failure to contact them
does not evidence “deliberate falsity,” or a “reckless disregard for the truth.” Franks, 438 U.S.
at 171. The existence of the releases was logical under the circumstances, and it is
understandable that Agent Reiner would not have wanted to risk alerting Giordano’s associates
to the ongoing investigation.
Third and most importantly, Agent Reiner did his due diligence, corroborating much of
the information CW-1 provided, through other confidential informants and personal observation.
Suppression Hr’g Tr. at 16-17. For example, the affidavit contains statements of additional
cooperating witnesses indicating that Giordano received kickbacks from Worth Construction and
that towing companies had to pay Giordano to get their names on the list of towing companies
that the City would use. The affidavit also contains statements made by other individuals to
CW-1 during consensually monitored calls that implicate Giordano in wrongdoing. Finally, the
affidavit lists occasions where Agent Reiner personally corroborated information provided by
CW-1 regarding Giordano’s relationship with the owner of Worth Construction, a primary target
of the government’s investigation. See United States v. Wagner, 989 F.2d 69, 72-73 (2d Cir.

49

1993) (noting that a confidential informant’s account may be deemed sufficiently reliable if
“corroborated in material respects by independent evidence”).
That due diligence both undermines Giordano’s claims that Agent Reiner recklessly
disregarded the truth and also makes Reiner’s state of mind irrelevant. Even after launching an
effective attack on the affiant’s credibility, a defendant is not entitled to a hearing unless the
affidavit’s remaining content, excluding “material that is the subject of the alleged falsity or
reckless disregard,” is insufficient to support a finding of probable cause. Franks, 438 U.S. at
171-72. No hearing is required if “there remains sufficient content in the warrant affidavit to
support a finding of probable cause.” Id. at 172. Although Agent Reiner relied heavily on CW1, the affidavit sufficiently demonstrated probable cause even without CW-1’s account. Thus,
Giordano has not demonstrated that in the absence of counsel’s ineffective performance, he
would have been entitled to a Franks hearing. 15
4. Failure to Renew Motion to Suppress Wiretap
Giordano also asserts that Attorney Bowman was ineffective for failing to renew his
motion to suppress the wiretaps following Agent Reiner’s trial testimony. “In order to show
ineffective assistance for the failure to make a suppression motion, the underlying motion must
be shown to be meritorious, and there must be a reasonable probability that the verdict would
have been different if the evidence had been suppressed.” United States v. Matos, 905 F.2d 30,
32 (2d Cir. 1990) (citing Kimmelman v. Morrison, 477 U.S. 365, 375-76 (1986)). The only
support Giordano provides is the somewhat cryptic assertion that “through cross-examination he
15

Equally importantly, though unnecessary to discuss at length here, Giordano has not even come close to
establishing that he would or could have prevailed on his challenges to the affidavit. Franks only entitles the
defendant to a hearing; “[w]hether he will prevail at that hearing is, of course, another issue.” 438 U.S. at 172. As
Giordano well knows, since he himself corroborated it during his period of cooperation, most of the information
provided by CW-1 was true. Although statements made by Giordano during that period could not have been used to
support the government’s position at an evidentiary hearing, Giordano has not shown that he would have been able
to discredit CW-1’s account.

50

would have been able to glean the evidence necessary to support his claims.” Am. Mot. to
Vacate at 9. That does not qualify as a basis to hold that the motion would have had merit. See
United States v. DiTommaso, 817 F.2d 201, 215 (2d Cir. 1987). Judge Nevas considered and
rejected various challenges to the wiretaps and the Second Circuit affirmed the rejection on
appeal. See Giordano, 172 F. App’x at 342. In the absence of any evidence to the contrary,
there no reason to believe that a renewed motion to suppress would have been granted.
5. Failure to Call Character Witnesses
No character witnesses testified on Giordano’s behalf at trial. His section 2255 petition
asserts that this was due to Attorney Bowman’s ineffective performance. The decision whether
or not to call a particular witness or witnesses is a question of trial strategy that courts are not
inclined to second-guess on habeas review. See, e.g., Luciano, 158 F.3d at 660; Krutikov v.
United States, 324 F. Supp. 2d 369, 371 (E.D.N.Y. 2004) (citing Luciano); Ozuru v. United
States, No. 95 Civ. 2241(SJ), 1997 WL 124212, at *4 (E.D.N.Y. Mar. 11, 1997). A petitioner
asserting a claim of ineffective assistance of counsel related to a failure to call character
witnesses must, at minimum, “identify what witnesses should have been called, to what they
could have testified,” and “how their testimony would have altered the outcome of the trial.”
Krutikov, 324 F. Supp. 2d at 371.
Giordano’s section 2255 petition does not identify any potential character witnesses or
the likely impact of their testimony on the outcome of the trial. He accuses Bowman of being
ineffective for failing to call character witnesses, but cites only dicta in an out-of-Circuit case to
support that contention. Am. Mot. to Vacate at 9 (citing Trahan v. Estelle, 544 F.2d 1305 (5th
Cir. 1977)). Bowman’s affidavit states that he and Giordano discussed whether to call an
attorney to testify regarding Giordano’s character, but decided not to do so because of concerns

51

regarding attorney-client privilege. Bowman Aff. ¶ 23. Bowman also followed up with other
prospective character witnesses, but “received from each person a rejection of our request.” Id.
Understandably, Bowman was not inclined to compel any character witness to testify against his
or her wishes. See id. That decision was objectively reasonable. As Bowman recognized, the
government’s cross-examination of an unwilling character witness almost certainly would have
been detrimental to Giordano’s defense. Id.
Undeterred, Giordano’s reply brief contains affidavits from two individuals who attest to
having known Giordano at the time and having been aware he was arrested. Both witnesses state
that would have been willing to testify as character witnesses, but were never contacted. Pet’r’s
Reply Exs. I & J, Giordano v. United States, No. 3:11-cv-9 (SRU), ECF No. 145/147. 16 Neither
the affidavits nor Giordano’s brief indicates that Attorney Bowman knew of the existence of
those individuals or their willingness to testify. Moreover, there is no mention whatsoever of the
nature, scope or potential impact of their hypothetical testimony. Without such crucial
information, Giordano cannot prevail on his claim of ineffective assistance of counsel. 17
Krutikov, 324 F. Supp. 2d at 371.
6. Failure to Prepare Witnesses
Giordano asserts that Attorney Bowman failed to prepare Giordano and defense witness
Vicky Mullen for their testimony and that all defense witnesses appeared unprepared for crossexamination. Am. Mot. to Vacate at 9 (citing Trial Tr. at 1557-58). Regarding Vicky Mullen, it
is true that she became visibly upset during cross-examination. That, however, does not appear
to have been caused by a lack of preparation. It was due instead to the fact that she was a
16

ECF No. 145 is Giordano’s redacted Reply and ECF No. 147 is the un-redacted version filed under seal.
Giordano’s section 2255 petition also contains a general assertion that counsel failed to investigate and present
witnesses whose testimony would have had a material outcome on the verdict. Am. Mot. to Vacate at 20. To the
extent that allegation differs from Giordano’s claim regarding the failure to call character witnesses, it fails for lack
of support.
17

52

relative of both victims and the government insinuated that she was aware of the abuse. See
Bowman Aff. ¶ 25.
During cross-examination, Attorney Jongbloed repeatedly asked questions that presumed
Mullen was complicit in Giordano’s abuse of her family members. Trial Tr. at 1548-56.
Jongbloed capped this colloquy off by asking Mullen, “you failed as her care-giver, didn’t you?”
Id. at 1556. Mullen was understandably upset at the notion that she would have allowed such
terrible things to happen to her family members. Id. at 1557 (“I’m not answering that. I’m not
answering that filth. That’s filthy.”). Bowman cannot be held constitutionally ineffective
because a witness’ emotions got the better of her while testifying at trial.
Nor was Bowman ineffective for failing to prepare Mullen before her testimony.
Bowman made a point of informing the jury that he and Mullen had never met before. Trial Tr.
at 1557-58. That was very likely a strategic decision. It had the effect of informing the jury that
Mullen was not a coached witness. Rather, it showed that Mullen was there simply to tell the
truth and expose the fact that the V1 had made statements inconsistent with V1’s trial testimony.
Id. at 1523.
With respect to Giordano, Bowman appears to have done everything in his power to
prevent Giordano from self-destructing in the manner that occurred at trial. Giordano’s decision
to take the stand was his alone, and it was taken against the advice of counsel. As Giordano
acknowledges, he and Bowman thoroughly disagreed about whether he should testify. Bowman
thought that it was not in Giordano’s best interest to go to trial at all and believed that Giordano
could severely hurt his case by testifying. He advised Giordano not to testify, but Giordano was
adamant. See Bowman Aff. ¶ 21; Evidentiary Hr’g Tr. at 18-19, Giordano v. United States, No.
3:11-cv-9 (SRU), ECF No. 225. The issue became so contentious that Bowman felt compelled

53

to file a declaration, under seal (and in anticipation of section 2255 proceedings), memorializing
the advice he had given his client. See Bowman Aff. ¶ 21; Evidentiary Hr’g Tr. at 17-19.
Once Giordano took the stand, Bowman attempted to limit the scope of his testimony.
Although he asked some questions designed to “draw the sting” out of issues that might come up
on cross-examination – e.g., a political controversy related to replacing the police chief 18 –
Bowman’s direct examination was focused and brief. Giordano himself was responsible for
opening the door to cross-examination that went beyond the scope of Bowman’s direct. His
testimony included half-truths and outright lies that the government effectively exposed on crossexamination.
Critically, it was Giordano alone who chose to rebut the allegations of sexual abuse by
testifying that watching the victims play in another room while he received oral sex from Jones
gave him sexual gratification. Giordano did so against the express advice of counsel, who was
concerned that such testimony would be an admission of an element of section 2425. Bowman
Aff. ¶ 21. In hindsight, Giordano’s ploy was a bad idea; the jury clearly did not believe
Giordano and his partial admission might have helped convince the jury that he was guilty. But,
Giordano’s mistakes in that regard are his own; they are not attributable to ineffective
performance by Bowman.
Regarding the rest of the defense witnesses, Giordano provides no support for his claims
that they were unprepared. Bowman’s affidavit submits that the defense witnesses called were
subpoenaed to testify and that he interviewed those witnesses willing to be interviewed.
Bowman Aff. ¶ 26. In the absence of any evidence to the contrary, there is no reason to believe
18

Bowman’s questioning regarding this affair, otherwise known as the “Flaherty Controversy,” appears to be the
basis for Giordano’s contention that Bowman introduced irrelevant evidence of political corruption and thereby
opened the door to cross-examination on this topic. Bowman’s decision to question Giordano on this matter was a
strategic decision, see Luciano, 158 F.3d at 660, and Giordano advances no explanation regarding how this caused
him any prejudice.

54

Bowman’s performance was less than capable. Once again, a defense attorney cannot be blamed
for the damaging nature of the evidence against his client and the weaknesses inherent in the
witnesses prepared to testify on his client’s behalf.
7. Failure to Interview Relatives of the Victims
Giordano claims that Bowman was ineffective for failing to interview relatives of V1 and
V2 to corroborate or discredit their stories. Am. Mot. to Vacate at 10. The decision to
investigate is one that the court must assess with a “heavy measure of deference to counsel’s
judgments.” Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005) (quoting Strickland, 466 U.S. at
691). Counsel is not required “to investigate comprehensively every lead or possible defense”
and is not constitutionally deficient if he fails to pursue an investigation that he has reason to
believe would be fruitless or even harmful. See Greiner v. Wells, 417 F.3d 305, 321 (2d Cir.
2005) (quoting Strickland, 466 U.S. at 691). Though it is true that Bowman failed to interview
the victims’ relatives, it is far from clear whether any relative would have been able to lend
support to Giordano’s defense. Bowman investigated the DCF’s findings, which included
references to statements of the victims’ various relatives. Bowman Aff. ¶¶ 27-28. After reading
those statements, Bowman determined that pursuing a further investigation into the victims’
relatives’ potential testimony would be fruitless.
Giordano does not point to any relative who would have been able to provide testimony
material to his defense. The only relatives who did testify, Jones and Vicky Mullen, provided
testimony that was damaging to the defendant. An evaluation of the DCF’s findings regarding
V1 and V2 shows that, at best, Bowman would have been able to call a relative who would deny
any knowledge about Giordano’s alleged misconduct. Such testimony would be duplicative to
that of Mullen, who denied being aware of Giordano’s alleged abuse and helped Bowman

55

highlight the fact that V1 had given inconsistent statements regarding her interactions with
Giordano. At worst, the relative could testify to being aware of Giordano’s meetings with V1
and V2, further corroborating his alleged misconduct. Regardless, because Jones regularly lied
about where she was taking the girls, it is unlikely that any of the victims’ other relatives could
have offered material testimony that could have impacted the outcome of the case.
8. Repetitive Questioning
Giordano asserts that Bowman improperly failed to object to the government’s repetitive
questioning of one of the victims, “which permitted multiple renditions of the alleged abuse to be
presented to the jury.” Am. Mot. to Vacate at 9. In its response, the government explains (and
the record reflects that) “the child had to testify again because the sound system for the close
[sic] circuit television did not work properly during the direct examination and the jury could not
hear the testimony from the adjacent courtroom with the witness and counsel.” Gov’t Resp. at
52 (citing Trial Tr. at 1066, 1067-68, 1069-71, 1082, 1089, 1092). After the malfunction was
fixed, she resumed testifying. The prosecutor explained to the victim that she would be
repeating some questions, because it was not clear that everyone heard her testimony. Id. (citing
Trial Tr. at 1131); see also Giordano, 442 F.3d at 36 n.3 (noting that the questions were repeated
because the initial testimony was only partially audible). It was not objectively unreasonable for
Bowman to permit that testimony to be repeated without objection.
9. Gag order
Giordano contends that Attorney Bowman was ineffective for failing to seek a “gag
order,” which was necessary due to the extensive pre-trial media coverage of his case. Am. Mot.
to Vacate at 18-19. He claims, somewhat convolutedly, that a gag order would have provided an
available remedy to support his motion to dismiss, change venue and postpone jury selection. Id.

56

The jury that decided his case was filled with individuals who had been exposed to media reports
of his case and therefore were “biased individuals” incapable of rendering an impartial verdict.
Id. at 19. A change in venue would have altered the composition of the jury, which would have
resulted in his acquittal. Id.
It is undeniable that Giordano’s case received a significant amount of pre-trial publicity.
Yet, it is also “well settled that pre-trial publicity, even if pervasive and concentrated, does not
necessarily lead to an unfair trial.” Solomon, 786 F. Supp. at 229 (internal citations omitted).
Moreover, a petitioner cannot prevail on a claim of ineffective assistance of counsel for failure to
obtain a change of venue where the jurors selected indicate, on the record, that they are able to
decide the case fairly and impartially in the original venue. Id. at 227; Pardee v. Napoli, No. 07CV-0292T, 2010 WL 1492372, at * 4 (W.D.N.Y. Apr. 13, 2010).
From the outset, Bowman was concerned about media coverage and sought to minimize
media exposure to the case. Judge Nevas was concerned as well, but he did not believe that a
change of venue was feasible. As a result, he granted Giordano’s motion to seal the courtroom
during the detention proceedings and prohibited disclosure to the public of the underlying
intercepts and other information related to detention. See Gov’t Resp. at 74 (citing Giordano,
158 F. Supp. 2d at 247). All pretrial litigation concerning the defendant’s detention and
litigation of the electronic surveillance orders occurred under seal. Id. Thus, as the government
notes in its brief, Attorney Bowman managed to effectively keep damaging details about
Giordano’s alleged conduct out of the media until the trial. See id.
On March 2, 2003, the Hartford Courant published an article about Jones and Giordano,
which included an interview with Jones. On March 3, 2003, Bowman filed a motion to change
venue and postpone jury selection due to the media coverage, requesting that the trial be moved

57

to White Plains, New York. Jury selection was held the next day, while that motion was
pending. At the March 4, 2003 jury selection, Judge Nevas asked the prospective jurors whether
they knew about the charges against the defendant. He then asked those prospective jurors who
responded “yes” whether they could be objective and excused the approximately thirty
individuals who indicated that they could not be objective. See Gov’t Resp. at 75 (citing Jury
Sel. Tr. at 21-22, United States v. Giordano, 3:01-cr-00216 (AHN), ECF No. 275). Judge Nevas
also asked the jury venire whether they could follow an instruction to avoid reading, viewing or
listening to media accounts of the case, and he expressly forbid the jurors from doing so before
or during the trial. Id. (citing Jury Sel. Tr. at 132, 161-62).
Judge Nevas held a hearing on the motion to change venue on March 5, 2003. At the
hearing, he noted that Fairfield County, where the court was located, had the lowest circulation
of Hartford Courant readers of any place in the state. Id. at 76 (citing Change of Venue Hr’g Tr.
at 17, United States v. Giordano, 3:01-cr-00216 (AHN), ECF No. 276). Moreover, the article
had already been out for two days when the jury was selected, and he had carefully questioned
the prospective jurors regarding their knowledge of the case. Id. (citing Change of Venue Hr’g
Tr. at 18). All of the prospective jurors who expressed concerns about objectivity had been
dismissed, and the jurors empanelled were expressly prohibited from reading, viewing or
listening to any media coverage of the case. Id. As a result, Judge Nevas denied the motion.
Giordano’s section 2255 petition asserts that Bowman should have requested a “gag
order” and that Judge Nevas would have granted the request if it had been made. It also
indicates that the trial should have been held in a different venue, where the jury pool would not
have been comprised of individuals tainted by the negative media coverage. The above
discussion, however, demonstrates that Giordano is incorrect. Attorney Bowman sought and

58

obtained closure of the courtroom during the detention proceedings and also made sure that
documents related to the wiretaps were filed under seal. He also fought for a change of venue,
which Judge Nevas denied. In doing so, Judge Nevas concluded that individuals with views on
the case had been effectively eliminated from the jury pool, and that the fourteen members of the
jury would be able to fulfill their duties competently and impartially. Giordano has therefore
failed to demonstrate that Bowman could have obtained a “gag order” or that the media coverage
influenced the jury and thereby prejudiced the outcome of the case.
10. V1 and V2’s Therapy
Giordano claims that Bowman was ineffective for asking questions on cross-examination
that opened the door for V1 and V2 to discuss therapy that they received following the alleged
abuse. Am. Mot. to Vacate at 9-10. Giordano argues that the resulting testimony gave additional
credence to the allegations that that he abused them. Id.
Giordano overlooks the fact that, in asking V1 and V2 about their discussions with DCF
personnel following the alleged abuse, Bowman actually made their allegations of abuse seem
less credible. On cross-examination, Bowman effectively established that V2 had made
statements to DCF investigators that were inconsistent with her subsequent trial testimony. Trial
Tr. at 1152-53. Bowman highlighted the fact that V2 told investigators that she had only been to
Giordano’s law office once and had never been to City Hall or in Giordano’s car. Id. at 1152.
V2’s statements were inconsistent with her trial testimony that she had been to Giordano’s office
multiple times and had also met Giordano in his car and at City Hall. Bowman also asked V1
about her prior discussions with DCF investigators. Id. at 1229. In so doing, Bowman got V1 to
admit that she believed the investigators “wanted to hear certain kinds of answers,” and that V1
was concerned about disappointing them. Id. at 1229-30. It is clear that Bowman’s discussion

59

of V1 and V2’s post-alleged-abuse therapy sessions was a deliberate attempt to discredit their
prior testimony. Bowman succeeded in raising doubts about the victims’ ability to recall the
events accurately. I will not second-guess a lawyer’s deliberate trial strategy, let alone a strategy
that appears to have been effective. See Luciano, 158 F.3d at 660.
Even if Bowman’s decision to question V1 and V2 in this manner could be deemed
ineffective, it in no way prejudiced Giordano. The government only asked V2 two questions that
directly related to her therapy resulting from the alleged abuse. Trial Tr. at 1160. Those
questions were merely attempts to rehabilitate V2’s credibility that had been successfully
attacked through Bowman’s cross-examination. They did not add any substance to the
allegations against Giordano about which V2 had testified.
The government’s inquiry into V1’s therapy after the alleged abuse was similarly limited.
Id. at 1237-40. Like with V2, the government only asked V1 about her discussions with DCF
personnel in order to rehabilitate V1 from Bowman’s cross-examination, which had served to
diminish V1’s credibility. The time the government devoted to rehabilitate V1 on re-direct
examination only establishes that Bowman had been effective in his attempt to discredit V1’s
testimony. Accordingly, Giordano suffered no prejudice from Bowman’s decision to open the
door to a discussion of the victims’ therapy following the alleged abuse.
11. Challenging Witness Statements on Cross-Examination and Closing Argument
Giordano claims that Attorney Bowman failed to effectively challenge various aspects of
the government’s case and failed to draw out inconsistencies in witness testimony, both on crossexamination and in his closing argument. Am. Mot. to Vacate at 9-10. The examples Giordano
provides, however, are either factually incorrect or immaterial to the outcome of the case. First,
Giordano asserts that Bowman should have presented a medical expert to rebut the testimony

60

that it is possible for a man to ejaculate twice within the time frame indicated by Jones’ driver
during his testimony. Id. at 9. Giordano does not explain how such expert testimony could have
impacted the outcome of the case and I fail to see how it would have. It is entirely possible to
credit the driver’s testimony that Giordano sexually abused the victims, even if he was mistaken
about how many times Giordano ejaculated.
Second, Giordano asserts that Bowman failed to challenge the “highly prejudicial”
testimony of the government’s DNA expert that Jones and Giordano’s DNA was found at many
of the sites where Giordano allegedly abused the victims, but the victims’ DNA was not. Am.
Mot. to Vacate at 20-21. The government’s expert testified that the lack of DNA meant either
that their DNA was not present, or that it was present only in limited amounts – perhaps because
Giordano withdrew from their mouths prior to ejaculation, thereby leaving behind an
undetectably small amount of female DNA. Gov’t Resp. at 84 (citing Trial Tr. at 1485-86). It is
difficult to comprehend how that testimony was “highly prejudicial” to Giordano, because the
absence of the victims’ DNA at those sites would tend to exculpate, not inculpate Giordano.
Bowman effectively capitalized on that fact during cross-examination, and also informed the jury
that the lack of DNA provided grounds for reasonable doubt. 19 Id. (citing Trial Tr. at 1498-1510,
2051-56).
Third, Giordano claims that Bowman failed to point out inconsistencies in the victims’
testimony, but the record indicates otherwise. During cross-examination of V1 and V2, Bowman
emphasized the inconsistencies between statements they gave to DCF investigators and their
testimony in court. Trial Tr. at 1152-53, 1235-36. For example, Bowman noted that V1 had
been previously asked whether Giordano had any tattoos. Trial Tr. at 1235. V1 previously told
19

Bowman also effectively challenged Jones’ and the victims’ testimony that Giordano ejaculated in his car by
emphasizing the DNA expert’s testimony that no semen was detected in the car. Gov’t Resp. at 52 (citing Trial Tr.
at 2051).

61

DCF investigators that Giordano did not have any tattoos, whereas she testified that Giordano
had a tattoo on his ankle. Trial Tr. at 1236.
In his closing argument, Bowman emphasized that one of the victims incorrectly testified
that Giordano did not have body hair. Gov’t Resp. at 52 (citing Trial Tr. at 2059). He also
pointed out that one of the victims testified that the car in which she was sexually assaulted by
the defendant had brown vinyl seats, yet the evidence showed the car had grey fabric seats. Id.
Finally, he pointed out that one of the victims testified that the defendant’s bedroom was the
“colors of the rainbow”, yet the evidence showed it was brown and black. Id. at 53 (citing Trial
Tr. at 2056).
The only inconsistency that Bowman failed to emphasize in closing argument was the
fact that one victim testified, incorrectly, that Giordano had a tattoo on his ankle. The failure of
Bowman to highlight that fact during closing argument does not render his performance
ineffective—especially because he did highlight it on cross-examination. It is possible that
Bowman made the tactical decision to highlight larger, more pronounced inconsistencies in the
victims’ testimony. It is possible that he simply forgot. Regardless, the record is clear that he
devoted significant time in his closing argument to highlighting the inconsistencies in the
victims’ testimony and to challenging their credibility. Trial Tr. at 2056, 2059. Accordingly, I
hold that Bowman was not ineffective in his attempt to discredit the government witnesses.
12. DCF Records for V1 and V2
Giordano claims that Attorney Bowman was “derelict” for failing to subpoena DCF
records for V1 and V2, which may have contained exculpatory information and could have been
used on cross-examination at trial. Prior to the trial, Bowman sought access to Juvenile Court
records that included extensive findings from DCF. See Bowman Aff. ¶¶ 27-28, ECF No. 130-1.

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Bowman argued that the information in those records was relevant to show that the children
suffered physical and sexual abuse from persons other than Giordano, that the children's trauma
was not attributable to Giordano, and that the children acquired their knowledge of sexual terms
and intimate parts of the body from their home life and not from Giordano.
Judge Nevas reviewed the Juvenile Court records, in camera, in accordance with
Supreme Court precedent and Connecticut law. See Pennsylvania v. Ritchie, 480 U.S. 39, 57-61
(1987) (defendant is entitled to in camera review by trial court of confidential child-protective
services records if defendant can establish that they contain material evidence); State v. Leduc,
40 Conn. App. 233, 249 (1996) (defendant has due process right to in camera inspection of
confidential DCF records, not in possession of prosecution, if defendant can establish that the
information would be favorable to his defense). After reviewing the records, Judge Nevas
denied Giordano’s request to use them at trial, finding that they contained no information that
would materially impact Giordano’s defense.
In his amended petition, Giordano attempts to rely on substantially the same arguments
that Bowman advanced before and that were rejected by Judge Nevas. Quizzically, Giordano
attempts to challenge Bowman’s effectiveness while relying on Bowman’s own arguments in
support of his underlying claim that the failure to obtain DCF records prejudiced his defense.
Giordano attempts to distinguish his current claims from Bowman’s prior conduct by
claiming that additional DCF records existed for V1 and V2 that may have contained exculpatory
information not contained in the Juvenile Court file. Giordano alleges that Bowman’s failure to
subpoena those records therefore interfered with Giordano’s ability to confront witnesses and to
put on a defense. It is unclear, however, what records Giordano seeks that he did not have access
to at the relevant time. Judge Nevas reviewed DCF records and Giordano himself received DCF

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records in connection with a related state-court proceeding. Giordano appears to have extensive
knowledge about the contents of V1 and V2’s DCF files.
Even if there were DCF records that had not been reviewed by Judge Nevas, Giordano
has not made an adequate showing that he was entitled to have the court undertake an in camera
inspection of such documents. See State v. Farah, 126 Conn. App. 437, 446, cert. denied, 300
Conn. 931 (2011). In a criminal case, a defendant must make a showing that the records sought
would be both material and favorable to the defense. Id. Giordano has failed to make that
showing.
As discussed above, any additional evidence regarding Jones’ role in bringing the girls to
Giordano would not have been “exculpatory” with respect to the section 242 counts, in light of
the Second Circuit’s interpretation of the “color of law” element. All of Giordano’s other
arguments in support of his assertion that the DCF records are favorable to his defense relate to
the fact that V1 and V2 were exposed to sexual activity at an early age. See Sealed Petitioner’s
Mot. for Order – Superior Court Juvenile Matters at Waterbury and DCF at 2-4, Giordano v.
United States, No. 3:11-cv-9, ECF No. 75. Giordano argues that the jury needed to know that
the victims’ trauma stemmed from their activities with their family, not from Giordano’s abuse.
Id. at 5.
Giordano’s arguments falter due to Judge Nevas’ prior rulings regarding the
inadmissibility of such evidence. Judge Nevas held that any evidence about the victims’ other
sexual experiences would not have been admissible under Rule 412(b). That is because the
exceptions under Rule 412(b) were clearly not satisfied: the evidence could not have been used
to explain that a person other than the accused was the source of semen; the issue of consent is
clearly irrelevant because a child could not consent to sexual activity with Giordano; and

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Giordano has not made a showing that his constitutional rights would otherwise be violated by
the exclusion of the victims’ prior sexual experiences. Fed. R. Evid. 412(b). Giordano cannot
avoid the fact that any evidence obtained by a successful subpoena of DCF records would have
been excluded for the same reasons that Judge Nevas excluded the juvenile records that he did
possess.
Giordano attempts to create an inference that Bowman was ineffective for failing to raise
the issue again at trial, given that Judge Nevas allegedly indicated a willingness to reconsider his
ruling. However, Giordano mischaracterizes Judge Nevas’ openness to relitigate the issue.
Judge Nevas stated that he would have only reconsidered his Rule 412 ruling if, during the direct
examination of the children, something unanticipated occurred that would somehow make one of
the Rule 412(b) exceptions applicable. Giordano has not asserted any facts indicating that the
victims’ direct examination raised anything unanticipated that would have enabled Bowman to
challenge Judge Nevas’ prior ruling. Accordingly, Bowman was not ineffective for failing to
relitigate an issue that he had already raised and that had been previously rejected.
Finally, Giordano urges that this court should consider—and Bowman should have
sought—DCF records related to Jones’ niece, RM. As was true regarding the DCF records of V1
and V2, Giordano has not established that the records of RM contain material evidence favorable
to the defense. The fact that RM was subject to similar alleged abuse by Giordano and Jones
does not exculpate Giordano for what the jury found him guilty of doing to V1 and V2.
Giordano does not establish that the DCF records contained anything of which Bowman was not
already aware. Furthermore, Giordano does not establish that the records contained any
information that would have changed Bowman’s strategic decision not to call RM as a defense
witness. I will not second-guess Bowman’s trial strategy regarding which witnesses he believed

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would be favorable to Giordano’s case. Bowman surely cannot be faulted for failing to call a
witness who was also allegedly abused as a minor by Giordano.
It is extremely unlikely that anything in the DCF records would have exonerated
Giordano. The fact that a victim has been abused by one individual does not exculpate his or her
other abusers. Giordano’s contention that there might be information within the records that
would have undermined the victims’ credibility is pure speculation. Acquiescing to his request
would launch a fishing expedition that would waste valuable judicial resources. Bowman
actively advanced the same theories before Judge Nevas, who reviewed the Juvenile Court
records (which contained key DCF findings) and concluded that nothing in them tended to
exculpate Giordano. Giordano has not established that the DCF files would have yielded a
different conclusion. Bowman cannot be faulted for failing to subpoena those files when much if
not most of the relevant, material information he sought was contained in the records of the
Juvenile Court, and any additional information could not reasonably be expected to help
Giordano.
13. Limiting Instructions on Impeachment Evidence
Giordano asserts that Bowman failed to request, and Judge Nevas failed to give, limiting
instructions regarding the impeachment evidence that was introduced over Bowman’s objection
during the cross-examination of Giordano. Giordano does not specify what evidence he is
referring to or postulate what an appropriate limiting instruction would have been. It is not the
court’s responsibility to comb through the transcript in an attempt to sort out – or speculate on –
a petitioner’s intended claims. Without any supporting allegations or citations to the transcript,
Giordano has demonstrated neither that counsel’s performance was “objectively unreasonable”
nor that he was prejudiced in any way by counsel’s failure to request limiting instructions.

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14. Right of Allocution at Sentencing
Giordano lastly faults Attorney Bowman for advising him not to exercise his right of
allocution at sentencing. Am. Mot. to Vacate at 23. Giordano claims that Judge Nevas was
“incensed” by the fact that Giordano did not apologize, which prejudiced Judge Nevas against
Giordano. Bowman’s affidavit states that he discussed with Giordano whether Giordano should
speak at sentencing and they decided that he should not, because Giordano continued to maintain
his innocence and anything he said at sentencing could be used against him in the state-court
proceedings. Bowman Aff. ¶¶ 31-32. That was an objectively reasonable course of action.
C. Newly Discovered Evidence
As a final matter, Giordano contends that newly discovered DNA evidence that he is not
the father of one of the victims provides grounds for vacating his conviction. He asserts that the
government permitted Jones to testify that he was the father of one of the victims when it knew
or should have known that Jones was testifying falsely. This information prejudiced and
“inflamed” the jury, which likely caused the jury to wrongly convict him of the sexual abuse.
Giordano claims that his rights under the Fifth, Sixth and Eighth Amendments were violated.
I have reviewed the entirety of Jones’ trial testimony and nothing in the record indicates
that Jones stated or even implied that Giordano was the father of one of the victims. 20 Trial Tr.
at 373-566. A petitioner is barred from bringing a claim on habeas review that was not properly
raised on direct review unless the petitioner is able to show “cause and actual prejudice” or
“actual innocence.” See Bousley v. United States, 523 U.S. 614, 622 (1998). Giordano has
shown neither. Simply asserting on habeas review that the jury was “inflamed” is not sufficient

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Jones may have indicated that Giordano was the father of her son, Jaylen, by testifying that Giordano paid her
$200 a month for a short period after she gave birth to Jaylen in December 1993. Trial Tr. at 382-83. Her testimony
is far from clear on that issue, however, and the government did not pursue that line of questioning. Regardless, it is
undisputed that Jaylen is not one of the victims, who were both female.

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to establish prejudice. As discussed above, the evidence was more than sufficient to convict
Giordano on both the section 2425 and section 242 counts. There is no indication that the jury
did not faithfully and impartially discharge its duties.
IV. Conclusion
For the foregoing reasons, Giordano’s amended section 2255 petition (doc. # 77/84) is
DENIED. A Certificate of Appealability will not issue, because Giordano has failed to make a
“substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Giordano
has not demonstrated that “reasonable jurists could debate whether . . . the petition should have
been resolved in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Rhagi v. Artuz, 309 F.3d 103, 106 (2d Cir. 2002) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)). The clerk shall enter judgment and close the
case.
It is so ordered.
Dated at Bridgeport, Connecticut, this 2nd day of December 2015.

/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

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