Sex by Cell Phone—Commerce Clause Regulates Intrastate Calls in 2nd Circuit

In upholding the conviction of the former major of Waterbury, Connecticut, Philip A. Giordano for having sex with underage girls, the 2nd Circuit Court of Appeals held that the Commerce Clause properly authorizes the criminalization of intrastate use of cell phones and telephones to entice minors into sexual activity under 18 U.S.C. §2425.^[1] This is the first federal circuit decision to extend Commerce Clause powers to the regulation of intrastate phone calls. ^[2]

At trial, Giordano was sentenced to serve 37 years in prison after being convicted on 17 criminal counts, including 14 counts of using a facility of interstate commerce in violation of §2425 and a single count of conspiracy related to the phone solicitation.^[3] He was also convicted of two counts of civil rights violations under color of law.^[4] The underlying conduct alleged was use of a cell phone to arrange for a prostitute to bring her 9-year-old daughter or her 11-year-old niece, or both, to meetings for sex with the mayor.^[5]

On the question of the legality of regulating intrastate calls under the Commerce Clause, the appeal court found that the phrase "any facility or means of interstate ... commerce" is not defined in 18 U.S.C. §2425. However, the court noted that recent 2nd Circuit decisions had decided two crucial issues—that "the national telephone network is a 'facility of interstate ... commerce' for purposes of the federal murder-for-hire statute” and that “intrastate use of the telephone constituted use of a facility of interstate commerce within the meaning of the statute."^[6]

Rejecting the idea that “calls placed between persons located in the same state are ‘intrastate calls’," the court looked instead at circumstances where the “constituent radio and electronic signals cross state lines.”^[7] In other words, if the phone signal between two parties in Waterbury, Connecticut passes through the Nextel transmission center in White Plains, New York, the call is an interstate phone call in the eyes of the 2nd Circuit Court of Appeals. The court did not insist on proof of an actual passage through a foreign pathway.

Under this interpretation, the appeal court concluded that criminalizing the use of a cell phone within a single state for the purpose of committing the crime does not overstep the rights of Congress under the Commerce Clause. The court affirmed Mr. Giordano’s conviction on all counts.

18 U.S.C. §2425: Use of Interstate Facilities to Transmit Information About a Minor

It is a crime to use a “facility or means” of interstate commerce to transmit information about minors under 16 years of age with the intent to entice, encourage, offer, or solicit any illegal sexual conduct. Penalties include imprisonment up to 5 years, fine, or both.

U.S. Constitution, Article 1, Section VIII, Clause 3: Commerce Clause

“The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States…To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

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[1] Mark Hamblett, 2nd Circuit Upholds Penalties for Enticing Phone Calls, New York Law Journal [hereinafter NYLJ], Mar. 15, 2006.
[2] United States v. Giordano [hereinafter Giordano], No. 03-1394, 2006 U.S. App. LEXIS 5405 (2nd Circ. Mar. l3, 2006). See also United States v. Giordano, No. 03-1394, 2006 U.S. App. LEXIS 5509 (2nd Circ. Mar. l3, 2006). Research at the time of this posting supports the court’s statement that “These are issues of first impression in this Circuit and have not been addressed by any other circuit.” See Giordano supra note 2 at 20.
[3] United States v. Giordano, 158 F. Supp. 2d 242 (D. Conn. 2001), aff’d United States v. Giordano, 324 F. Supp. 2d 349 (D. Conn. 2003). The sentence imposed was elevated based on the 18 U.S.C. §242 counts that the former mayor performed the illegal acts under the “color of law.”
[4] Id.
[5] Giordano supra note 2 at 10-18.
[6] Giordano supra note 2 at 21, citing United States v. Perez, 414 F.3d 302 (2005). See also United States v. Corum, 362 F.3d 489,493 (8th Cir. 2004) holding that an “aggregate telephonic system” is an interstate instrumentality. See also United States v. Gilbert, 181 F.3d 152, 158--59 (1st Cir. 1999) and United States v. Weathers, 169 F.3d 336, 341 (6th Cir. 1999).
[7] Giordano supra note 2 at ftnt. 8.