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March 21, 1986

WARDEN, Metropolitan Correctional Center, New York, New York; UNITED STATES PAROLE COMMISSION, Philadelphia, Pennsylvania; ATTORNEY GENERAL of the United States, Washington, D.C.; UNITED STATES MARSHAL'S SERVICE, New York, New York, Respondents

The opinion of the court was delivered by: LASKER


 Demetrios Papadakis petitions for a writ of habeas corpus directing that he be released from custody imposed pursuant to a parole violation detainer lodged against him by the United States Parole Commission. The determining issue presented by the petition is whether, at the time the detainer was filed, Papadakis was any longer on parole or subject to the jurisdiction of the Parole Commission with regard to the charges specified in the detainer.


 Between 1971 and 1974 Papadakis was sentenced in three separate proceedings for the commission of drug-related offenses. In United States v. Fiorino, 71 Cr. 972 (S.D.N.Y.) (MG), Papadakis pleaded guilty and was sentenced to a five-year prison term to be followed by a three-year special parole term pursuant to 21 U.S.C. § 841. In United States v. Pacelli, 71 Cr. 614 (S.D.N.Y.) (MP), Papadakis was convicted and sentenced to a five-year prison term to be served consecutively with the sentence imposed in Fiorino and to a three-year special parole term to commence thereafter. In United States v. Novoa, 74 Cr. 229 (S.D.N.Y.) (IBW), Papadakis was convicted and sentenced to a five-year prison term to run concurrently with his earlier sentences. Thus, Papadakis was to serve ten years in prison followed by six years of special parole, commencing from November 9, 1971, when he began serving his prison term. His first, three-year special parole term would therefore begin to run in November 1981.

 On February 15, 1983, Papadakis and others were indicted on bank larceny charges in connection with the December 1982 theft of $11 million from the Sentry Armored Car Courier Corporation. United States v. Potamitis, 83 Cr. 68 (S.D.N.Y.) (EW). On March 17, 1983, the Parole Commission issued a parole violation warrant for Papadakis on the basis of the conduct underlying his indictment for bank larceny in Potamitis. Although Papadakis was in custody on the criminal charges at the time the warrant was issued, when he posted a bond to secure his release on March 22, 1983, the warrant was executed and he was immediately detained.

 On April 13, 1983 this court, on Papadakis' petition for habeas corpus, ordered Papadakis released from incarceration under the terms and conditions fixed in connection with his bail release in the criminal case and stayed the parole revocation proceedings until the conclusion of Papadakis' criminal trial. Papadakis v. Warden, Metropolitan Correctional Center, 83 Civ. 2734 (S.D.N.Y. Apr. 13, 1983). On December 7, 1983 a jury acquitted Papadakis on the bank larceny charges but convicted other defendants in the case. The government did not reinstitute parole revocation proceedings based on the March 1983 detainer at that time.

 In September 1984, Nicholas Gregory, who had been a fugitive at the time of the Potamitis trial, was arrested and subsequently indicted on a number of charges in connection with the Sentry robbery. SSS 83 Cr. 68 (S.D.N.Y.) (EW) (Dec. 6, 1984). On March 7, 1985, Gregory was convicted by a jury after a month-long trial at which the government contends new evidence was presented implicating Papadakis as a central conspirator in the Sentry robbery.

 Prior to the Gregory trial, Papadakis was ordered to appear before a grand jury. On December 7, 1984 he invoked his fifth amendment privilege and was granted immunity from prosecution. On December 11 Papadakis again appeared before the grand jury and refused to testify. As a result Judge Knapp held Papadakis in civil contempt and ordered him incarcerated. On June 18, 1985 Papadakis was released from civil contempt incarceration but the next day was indicted on criminal charges stemming from his refusal to testify. See United States v. Papadakis, 85 Cr. 559 (S.D.N.Y.) (EW). In the interim, however, it appears Papadakis had fled to avoid arrest on the criminal contempt charges.

 On January 12, 1986 Papadakis was arrested on the criminal contempt charges and detained pending trial on a secured bond of $750,000. On or about the time of Papadakis' arrest, the government lodged a parole violation detainer against him that included the original March 1983 bank larceny charge as well as two supplemental charges issued on January 3, 1985 by the Parole Commission. The two supplemental charges accused Papadakis of "association with a person having a criminal record" and "leaving the district without permission" during the period between 1982 and 1984. On March 6, 1986 Papadakis posted bond and the government immediately executed the parole violation warrant, resulting in Papadakis' continued confinement. On March 10 Papadakis was tried before Judge Weinfeld without a jury on the criminal contempt charges, was found guilty of those charges, and was remanded to custody without bail.


 In support of his petition for a writ of habeas corpus, Papadakis makes three arguments. First, Papadakis contends that his acquittal in a criminal trial on charges of bank larceny bars parole revocation proceedings for the same offense under principles of double jeopardy, res judicata, and collateral estoppel. Second, Papadakis asserts that the parole violation detainer in this case is of no force and effect because it was lodged and executed after the expiration of Papadakis' lawful prison terms and special parole period. Papadakis reasons that his first three-year special parole term expired in November 1984 and that his second three-year special parole term was unlawfully imposed for what he claims was a conspiracy offense not punishable by special parole. Third, Papadakis claims that the Parole Commission should be precluded as a matter of constitutional due process from proceeding against him because the Commission took no action on the original detainer for more than two years after Papadakis' December 1983 acquittal on the bank larceny charges and failed to notify him for more than a year of the supplemental charges issued in January 1985.

 The government responds, first, that Papadakis' acquittal does not bar parole revocation based on the same charges both as a matter of law and because new evidence not presented at Papadakis' trial supports the initial charge as well as the two supplemental charges of criminal association and unauthorized travel. Second, the government contends that even if Papadakis is correct that the second three-year special parole term was erroneously imposed, he can only challenge that sentence before the sentencing judge, and that in any event, Papadakis has yet to serve the full three years on the first special parole term since that period was tolled by this court's April 1983 order staying parole revocation proceedings, by Papadakis' civil contempt commitment, and by his absconding at the time of his criminal contempt indictment. Third, the government asserts that the Parole Commission is not barred as a matter of due process from revoking Papadakis' parole at this time because any delay in proceeding against him was the result primarily of Papadakis' own actions and the government's efforts to collect additional evidence before reinstituting parole revocation proceedings following Papadakis' acquittal.


 It should be noted initially that although Papadakis is currently incarcerated as a result of his being found guilty of criminal contempt charges, rather than as a result of the parole violation warrant that is the subject of this case, his petition for habeas corpus is not moot. This is so because absent some resolution of the questions presented on Papadakis' petition, the Parole Commission will be able simply to reinstitute parole revocation proceedings at any future time when Papadakis is released from incarceration. In this sense, the actions of the Parole Commission would be ...

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