United States v. Philip A. Giordano

Defendant-appellant Philip A. Giordano appeals from a June 13, 2003 judgment of conviction and sentence entered after a jury trial before the United States District Court for the District of Connecticut (Nevas, J.). Giordano, formerly the mayor of Waterbury, Connecticut, was convicted of two counts of civil rights violations under color of law in violation of 18 U.S.C. § 242, one count of conspiracy to use a facility of interstate commerce for the purpose of enticing a person under the age of sixteen years to engage in sexual activity in violation of 18 U.S.C. §§ 371 and 2425, and fourteen substantive counts of such use of a facility of interstate commerce in violation of § 2425. All of the convictions stem from Giordano's repeated sexual abuse of the minor daughter and niece of a prostitute. Giordano raises a host of challenges to his convictions and sentence, the majority of which are addressed in a separate summary order also filed today. We write separately to address Giordano's claims that (1) § 2425 does not reach intrastate use of a telephone for the unlawful purposes specified in the statute and that the application of the statute to such activity exceeds Congress's power under the Commerce Clause, U.S. Const. art. 1 § 8, cl. 3; (2) the evidence was insufficient to support his convictions under 18 U.S.C. § 242; and (3) the district court abused its discretion in failing to recuse itself from ruling on the admissibility of wiretap evidence because it had earlier approved the wiretap under 18 U.S.C. § 2518. Because these challenges and the arguments addressed in the summary order lack merit, we affirm the judgment of conviction.

Giordano's prosecution on the charges that led to this appeal grew out of an unrelated investigation by the FBI and IRS into political corruption in the city of Waterbury. Giordano, then mayor of Waterbury, was a target of this investigation. On February 18, 2001, the government obtained from United States District Judge Alan H. Nevas of the District of Connecticut an ex parte order authorizing it to intercept phone communications of Giordano and other targets of the investigation pursuant to the federal wiretap statute commonly known as "Title III," 18 U.S.C. §§ 2510-2520. Between February and July of 2001, the government continued to monitor calls made to and from Giordano's city-issued cell phones, among others, renewing its Title III application every thirty days and submitting periodic progress reports to the district court. Judge Nevas approved the renewal applications in each instance (a total of seven times).

In the course of this surveillance, the government intercepted 151 calls on Giordano's cell phones to or from Guitana Jones, a prostitute with whom Giordano had a long-term sex-for-money relationship. On July 12, 2001, the government reviewed the contents of a brief July 9 call between Jones and Giordano that suggested that Jones was bringing a nine-year-old girl to Giordano for sex. In another, equally brief July 12 call, Giordano asked if Jones would have with her the nine-year-old or another female whose age was not discussed. The government had an undercover police officer call Giordano's cell phone on the afternoon of July 12 and leave an anonymous message telling him, in threatening and profane but vague terms, that the caller knew about the little kids and would tell the media if Giordano did not desist. On July 13, the government intercepted a call between Giordano and Jones in which Giordano told Jones about the message and discussed who might have left it. Giordano asked if the father of the second individual was alive, to which Jones replied: "No, [she] don't say nothin' . . . . [T]hey, them kids haven't said anything. They do not say nothing." Giordano answered, "Well someone said something to someone because this dude knew." Later in the same conversation, Jones said: "Nobody knows about them. Nobody. Nobody knows about them at all `cause they don't even say nothing `cause I got them to the point where they're scared, if they say somethin' they're gonna get in trouble. They don't say anything."

The government advised the district court, in filings on July 13 and 18, that it believed that Jones might be procuring for Giordano the sexual services of Jones' daughter and another minor female relative. 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. In the early hours of July 21, 2001, state authorities removed Jones' nine-year-old daughter (whom we refer to as "V1") and her eleven-year-old niece ("V2"), from the Jones household. The FBI intercepted a call soon after in which Jones advised Giordano that state authorities had removed the girls. Jones falsely told Giordano that a driver who had taken Jones, V1 and V2 to see Giordano was demanding $200 not to tell the authorities. Giordano placed this sum in an envelope in the mailbox outside his house. The FBI arrested Jones shortly after she retrieved the money.

At the behest of the FBI, Jones then called Giordano and falsely told him the driver was demanding additional payment. Giordano and Jones agreed to meet in a commuter parking lot on July 23, where Giordano would give her $500. On that date, after Giordano had given Jones money at the parking lot, agents approached him and informed him that they had evidence of his sexual misconduct and other corrupt activities not relevant to the instant appeal. Over the next seventy-two hours, Giordano cooperated with the agents in the ongoing investigation of other targets of the original corruption investigation. On July 26, Giordano was arrested.

2. Indictment and relevant pre-trial proceedings

A federal grand jury returned a fourteen-count indictment against Giordano on September 12, 2001. That 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 (to wit, telephones), 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 § 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. Before trial, Giordano moved to dismiss the indictment on various grounds, including two of the grounds he raises here. The district court rejected his motion in a published decision, United States v. Giordano, 260 F.Supp.2d 477 (D.Conn.2002) ("Giordano I"). Giordano also moved Judge Nevas, to whom the case was assigned, to disqualify himself from ruling on a pending motion to dismiss the wiretap evidence on the ground that Judge Nevas had earlier granted the Title III orders, the validity of which Giordano now challenged. Judge Nevas denied this motion for recusal. Giordano then sought a writ of mandamus in this Court seeking to overturn Judge Nevas' denial of the recusal motion; his petition was denied by unpublished order of this Court on December 18, 2002.1 See In re Giordano, No. 02-3095 (2d Cir. June 3, 2002) ("Giordano III").

On January 16, 2003, the grand jury returned a superseding indictment ("the indictment") adding four additional counts of substantive violations of § 2425, each count alleging another specified phone call in which the names of V1 and/or V2 were transmitted for purposes of sexual abuse.

Giordano was tried before a jury from March 12 to March 24, 2003. In all, some fifty-three witnesses testified. The heart of the government's case was the testimony of Jones, V1 and V2, and the intercepted phone calls. Jones testified that she met Giordano well before his 1995 election to the mayor's office, when Giordano was a lawyer in private practice. From the time she first met him until the time of her arrest in 2001, she frequently had sex with Giordano in exchange for money, which she used to support her addiction to crack cocaine. She met him as often as two or three times a week, usually at his law office, and sometimes arranged for other women to come with her. Jones testified that in the summer of 2000, while he was mayor of Waterbury, Giordano asked her to bring "young girls" to perform sexual services. In response to this request, Jones brought several girls between the ages of fourteen and sixteen, including a niece, to perform oral sex on Giordano.

Jones testified that in November of 2000, on an occasion when Jones had brought her daughter V1, her niece V2, a nephew and a son with her to Giordano's law office, Giordano asked her elliptically "What about [V1]?", which Jones understood as a request that V1, then eight years old, perform oral sex on him. Jones testified that she said no, but at a subsequent visit a few days later she brought V1 and instructed her to touch Giordano's penis until he ejaculated; while this happened, V2 and other children in Jones' care were in the law office waiting area, separated by a closed door. Several days thereafter, Jones brought both V1 and V2, who was then ten years old, to the office, where Jones performed oral sex on Giordano in the girls' presence. During the next visit, V1 performed oral sex on Giordano. At the conclusion of this episode, Jones testified, Giordano warned her, "Make sure she don't say nothing to no-one." Jones was paid for all of these activities.

Jones claimed that similar episodes of oral sex for money began to occur with regularity, usually at Giordano's law office but occasionally at Jones' or Giordano's home or an apartment belonging to a friend of Giordano's. In almost every case, the appointments were arranged by telephone. On a school holiday in the winter of 2000-2001, the date of which Jones could not recall, she brought V1 and V2 to the mayor's office at City Hall, entering through the back door. On that occasion, she directed both V1 and V2 to perform oral sex on Giordano. Jones testified that Giordano told her in a "calm voice" at the conclusion of this visit to "make sure the kids don't tell anyone [or] I'll get in trouble, I'll go to jail. . . . So I made sure they never said anything to anybody." He also told the girls directly that they would "get in trouble" and that Jones would go to jail if they told anyone about the abuse.2 Jones maintained that it was Giordano's consistent practice to warn her and the girls to remain silent:

Q. And did he repeat that [warning] at any other time?

A. Yeah, every time after it happened. And I made sure the girls never said anything because I was scared. I didn't want to go to jail.

According to Jones, the abuse occurred at City Hall two or three more times. In addition, on two or three other occasions, when the law office was occupied by other people, Jones, Giordano and V1 used Giordano's official city car for V1 to perform oral sex.

V1 and V2 testified at trial via closed-circuit television from another room in which the government attorney and defense counsel were present. Their testimony substantially corroborated Jones' as to the nature of the acts they performed, the places they performed the acts, and the warnings they received in each instance from Jones and Giordano.

The victims also testified that they were hurt by and disliked the abuse but did not tell anyone about it out of fear of what Giordano could do to them. V2, who was twelve at the time of the trial, testified that she learned that Giordano was the mayor from V1 after she first met him. She "thought the Mayor could rule people, like be their boss."3 She believed Giordano "would have someone hurt my family or that either I would get in trouble," because Jones "would threaten me pretty often, like everytime. And he would say that, too, like you know, you're not supposed to tell." She also explained 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." V2 testified that the abuse hurt her physically and that it also "hurt [her] inside" "[be]cause [she] wouldn't think he would make [her] do something like that" and because she "wouldn't think [her] aunt would do something like that."

V1, who was ten at the time of the trial, testified that Jones told her that Giordano was the mayor and she understood that a mayor's role was to "[p]rotect the city" and "[w]atch[] over us, like God." V1 did not like the abuse, but told no-one about it because she was scared of Giordano. In particular, she believed she "would get put in jail" if she told other people because she "thought he had power." She also thought her mother would beat her. She did not remember whether Giordano had told her whether or not she should tell anybody about what they did.

The government also introduced 133 of the 151 wiretapped phone conversations between Giordano and Jones, including recordings corresponding to the particular phone conversations alleged in the indictment. Some of these calls corroborated Jones' testimony that Giordano sometimes explicitly requested that the girls be present and that he vehemently rejected offers to have Jones' 16-year-old niece come instead.4 The government adduced expert evidence that all of the calls were made on phones that were connected to the Public Switching Telephone Network, which is capable of transmitting phone signals between states. The evidence showed that the actual calls described in counts four through nine of the indictment, which were placed from and to Giordano's Nextel cellular phone, would necessarily have been routed through a switching center in White Plains, New York. The signals that constituted the calls described in counts eleven through eighteen of the indictment originated from or were received on a Cingular cellular phone and would not have left the State of Connecticut.

Giordano testified in his own defense. 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, but denied ever having any sexual contact of any kind with either V1 or V2 or with Jones' 16-year-old niece. According to Giordano, Jones would sometimes bring various children including V1 and V2 with her to the law office, but would leave them in a sunroom several rooms removed from Giordano's office, where she would perform oral sex behind a closed door. Giordano claimed he "reluctantly agreed" to Jones' suggestion that he might enjoy receiving oral sex in the girls' presence on a handful of occasions; he had done so by leaving the office door open while Jones performed oral sex on him and V1 or V2 sat in the sunroom. On the second such occasion, he "didn't feel right" and closed the door. Giordano claimed that the girls had never come to his law office after the wiretapping began in February of 2001, and that none of the intercepted calls in which he asked for one or the other of them to be present actually resulted in their coming with Jones to meet him. He denied that his mention of either child in the intercepted phone calls was for the purpose of soliciting them for sexual contact; instead, he testified, "I had ask[ed] them to be there and she volunteered them to be there for the purposes of them being in the sun room at the time when she was performing oral sex on me . . . ."

Giordano made motions for acquittal under Federal Rule of Criminal Procedure 29 at the close of the government's case in chief and at the close of trial, both of which were denied. The jury convicted Giordano on every count of the indictment save one of the § 2425 counts, on which it returned no verdict.5 After trial, Giordano again moved for acquittal on all counts, renewing the arguments previously rejected by the district court when it denied Giordano's pre-trial motion to dismiss the indictment. The district court denied the motion for acquittal, holding, in relevant part, that (1) there was sufficient evidence that Giordano acted "under color of law" within the meaning of § 242, (2) the phone calls he made to and received from Jones satisfied the jurisdictional requirements of § 2425, and (3) use of § 2425 to prosecute this activity did not exceed Congress's power under the Commerce Clause. United States v. Giordano, 324 F.Supp.2d 349, 352-53 (D.Conn.2003) ("Giordano II"). On June 13, 2003, the district court sentenced Giordano principally to 444 months' imprisonment on each of the two § 242 counts; 60 months on the conspiracy count; and 60 months on each of the fourteen § 2425 counts, all to be served concurrently, for a total of 444 months of imprisonment. This timely appeal followed.

Section 2425 of Title 18 of the United States Code provides, in relevant part, that

[w]hoever, using the mail or any facility or means of interstate or foreign commerce,. . . knowingly initiates the transmission of the name, address, telephone number, social security number, or electronic mail address of another individual, knowing that such other individual has not attained the age of 16 years, with the intent to entice, encourage, offer, or solicit any person to engage in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title, imprisoned not more than 5 years, or both.

18 U.S.C. § 2425. Section 371 of Title 18 makes it a crime to conspire to commit the offense described in § 2425. As noted above, counts four through nine and eleven through eighteen of the indictment alleged that on fourteen specified dates between February 23 and July 12, 2001, Giordano and Jones used a cellular telephone and a landline telephone, respectively, 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. The third count of the indictment alleged that Giordano conspired to violate the statute.6 The evidence adduced at trial showed that all of these calls were made while both Giordano and Jones were within the State of Connecticut. Giordano argues that § 2425 must be understood not to reach phone calls from one person in a given state to another person in the same state—what he terms "intrastate calls"—and that if the statute is understood to reach such calls, it exceeds Congress's power under the Commerce Clause, U.S. Const. Art. I, § 8, cl. 3, as that power has been defined by the Supreme Court in Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). He therefore argues that the district court erred in denying his repeated motions to dismiss the indictment and in instructing the jury that they could convict Giordano of the phone counts if they found that the cellular phones were capable of transmitting communications from one state to another. We review de novo these challenges to the meaning and constitutionality of the statute and the propriety of the jury instructions. United States v. George, 386 F.3d 383, 397 (2d Cir.2004); United States v. Holland, 381 F.3d 80, 84 (2d Cir.2004). These are issues of first impression in this Circuit and have not been addressed by any other circuit.

We address the issue of statutory interpretation first. The phrase "any facility or means of interstate . . . commerce" is not defined for purposes of § 2425 or the chapter of which it is a part. See generally 18 U.S.C. §§ 2421-2426. Recently, however, in United States v. Perez, 414 F.3d 302, 304 (2d Cir.2005) (per curiam), we reached the unremarkable conclusion that the national telephone network is a "facility of interstate . . . commerce" for purposes of the federal murder-for-hire statute, 18 U.S.C. § 1958(b)(2). See also Freschi v. Grand Coal Venture, 767 F.2d 1041, 1048 (2d Cir.) (holding without discussion that a telephone network is an "instrumentality of interstate commerce" for purposes of Exchange Act § 10(b), 15 U.S.C. § 78j), vacated on other grounds, 478 U.S. 1015, 106 S.Ct. 3325, 92 L.Ed.2d 731 (1986).7 We see no reason why the result should be different here. We also conclude that § 2425's prohibition on the transmission of the name of a minor "using. . . any facility or means of interstate . . . commerce" for the specified purposes includes the intrastate use of such a facility or means.8 In Perez, we addressed a related question that has divided the circuit courts: whether an intrastate phone call was sufficient to satisfy the jurisdictional element of a prior version of the murder-for-hire statute, 18 U.S.C. § 1958(a), which prohibited "use[]" of a "facility in interstate. . . commerce" for specified purposes.9 Joining the circuits that had held that the term "facility in interstate . . . commerce" was synonymous with the term "facility of interstate . . . commerce" in the definition section of the same statute, 18 U.S.C. § 1958(b)(2), we concluded that intrastate use of the telephone constituted use of a facility of interstate commerce within the meaning of the statute.10 Perez, 414 F.3d at 304 (endorsing the reasoning of United States v. Richeson, 338 F.3d 653, 660 (7th Cir.2003) and United States v. Marek, 238 F.3d 310, 315-23 (5th Cir. 2001)). Likewise, § 2425, which unambiguously requires only that a "facility or means of interstate . . . commerce" be used in the proscribed manner (emphasis added), is satisfied by purely intrastate use of that facility. See id.11

Because we find that the statute unambiguously reaches intrastate use of a telephone, we decline Giordano's invitation to apply the rules of lenity and constitutional avoidance to guide our interpretation. See Salinas v. United States, 522 U.S. 52, 66, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997) ("The rule [of lenity] does not apply when a statute is unambiguous . . . ."); id. at 62, 118 S.Ct. 469 (same as to the canon of constitutional avoidance and the principle that statutes will not be read to alter the traditional federal-state balance of power absent a clear indication of such intent). By the same token, we reject Giordano's argument that we should rely on the legislative history of the statute.12 See Virgilio v. City of New York, 407 F.3d 105, 115 n. 10 (2d Cir.2005). The jurisdictional element of § 2425 is satisfied by intrastate use of a telephone capable of transmitting communications between states.

We turn now to Giordano's challenge to the constitutionality of § 2425 as we have interpreted it. In United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the Supreme Court identified three categories of activity that Congress may regulate under the Commerce Clause:

First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.

Id. at 558-59, 115 S.Ct. 1624 (citations omitted). The statute at issue in Lopez fell into the third category. The Court there held that the Gun-Free School Zones Act, 18 U.S.C. § 922(q), exceeded Congress's authority because it criminalized non-economic activity that did not "substantially affect" interstate commerce. Id. at 560-65, 115 S.Ct. 1624. Similarly, in Morrison, which concerned a provision of the Violence Against Women Act that provided civil remedies for gender-motivated violence, 42 U.S.C. § 13981, the Court held that Congress could not, under the third Lopez category, "regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce." 529 U.S. at 617, 120 S.Ct. 1740. In Jones, the Court considered whether the term "property used in . . . any activity affecting interstate or foreign commerce" as employed in the federal arson statute, 18 U.S.C. § 844(i), reached a private dwelling. 529 U.S. at 858, 120 S.Ct. 1904. In reliance on Lopez and the principle that an ambiguous statute should be read to avoid doubtful constitutional questions, the Court held that it did not. Id. As the language of the statute and the Court's reliance on Lopez make clear, Jones too was a Lopez "category three" case, concerned with Congress's power to regulate activities having a substantial effect on interstate commerce.

It is certainly true, as Giordano argues, that these cases impose limits on Congress's power to create federal criminal prohibitions on traditionally state-regulated spheres of noneconomic activity. See generally Gonzales v. Raich, ___ U.S. ___, ___-___, 125 S.Ct. 2195, 2209-10, 162 L.Ed.2d 1 (2005); United States v. King, 276 F.3d 109, 111 (2d Cir.2002). But his attempt to bring this line of cases to bear on § 2425 overlooks the fact that § 2425, which explicitly proscribes "us[e of] the mail or any facility or means of interstate . . . commerce" to specified ends, is clearly founded on the second type of Commerce Clause power categorized in Lopez, that is, the power to regulate and protect the instrumentalities of interstate commerce "even though the threat may only come from intrastate activities." Lopez, 514 U.S. at 558, 115 S.Ct. 1624. It is well-established that when Congress legislates pursuant to this branch of its Commerce Clause power, it may regulate even purely intrastate use of those instrumentalities. United States v. Gil, 297 F.3d 93, 100 (2d Cir.2002) (collecting cases).13 Application of § 2425 to the conduct involved in this case therefore presents no constitutional difficulties.14

Giordano also challenges his conviction of two counts of violating 18 U.S.C. § 242. That statute "mak[es] it criminal to act (1) 'willfully' and (2) under color of law (3) to deprive a person of rights protected by the Constitution or laws of the United States."15 United States v. Lanier, 520 U.S. 259, 264, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997). The first count of the indictment charged that between November 2000 and July 2001, Giordano, "while acting under color of the laws of the State of Connecticut," deprived V1 of her Fourteenth Amendment right "to be free from aggravated sexual abuse and sexual abuse. . . by coercing and forcing [V1], who had not attained the age of 12 years, to engage in fellatio and genital contact with [Giordano] and by touching [V1's] genitals and breasts, resulting in bodily injury to V1." Count two of the indictment contained the same charges as to V2.

Giordano argues that the evidence was insufficient as to the "under color of law" element of these counts. We disagree because the meaning of the statutory term "under color of . . . law" is more expansive than Giordano maintains, and the evidence adduced at trial, viewed as it must be in the light most favorable to the government, was more than sufficient to allow a rational trier of fact to find the element satisfied beyond a reasonable doubt. See United States v. Singh, 390 F.3d 168, 187 (2d Cir.2004).

"The Supreme Court has broadly interpreted the color of law requirement, concluding that `[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken under color of state law.'"16 United States v. Walsh, 194 F.3d 37, 50 (2d Cir.1999) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941) (further internal quotation marks omitted; alteration in Walsh)). The fact that someone holds an office or otherwise exercises power under state law does not mean, of course, that any wrong that person commits is "under color of law." "It is clear that under `color' of law means under `pretense' of law. Thus acts of officers in the ambit of their personal pursuits are plainly excluded." Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). As we have observed, however, "there is no bright line test for distinguishing personal pursuits from actions taken under color of law." Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir.1994) (internal quotations marks omitted).17

Giordano argues that he cannot have acted under color of law because his actions, although they took place during his mayoralty, "were clearly a part of and derived from [a] personal relationship [he] had with [Jones]" that was unrelated to and predated his mayoralty.18 The color of law element may be satisfied by the fact that an official gains access to the victim in the course of official duty. See, e.g., United States v. Livoti, 196 F.3d 322, 327 (2d Cir.1999) (rejecting sufficiency challenge to § 242 conviction where on-duty police officer choked victim who had protested officer's arrest of victim's brother); United States v. McClean, 528 F.2d 1250, 1252, 1255 (2d Cir.1976) (holding that police officers acted under color of law when they stole and extorted proceeds of narcotics sales from suspects of their investigations). But this is by no means a necessary condition: it is well-established that an official may act under color of law even when he or she encounters the victim outside the conduct of official business and acts for reasons unconnected to his or her office, so long as he or she employs the authority of the state in the commission of the crime. See Walsh, 194 F.3d at 51 ("The relevant question . . . is not whether the actual abuse was part of the official's duties but, rather, whether the abuse was `made possible only because the wrongdoer is clothed with the authority of state law.'" (quoting Classic, 313 U.S. at 326, 61 S.Ct. 1031)); Pitchell, 13 F.3d at 548 ("[L]iability may be found where [an official], albeit off-duty, nonetheless invokes the real or apparent power of [his office]."). Thus we have found that officials acted under color of law even when, like Giordano, they came into contact with their victims in the course of their private affairs. See, e.g., Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir.2003) (holding that off-duty police officer acted under color of law when he identified himself as a police officer and drew his gun on motorist with whom he had argument over use of roadside payphone); Rivera v. La Porte, 896 F.2d 691, 695-96 (2d Cir.1990) (holding that off-duty corrections officer acted under color of law when he arrested and assaulted driver following private argument during traffic jam).