The opinion of the court was delivered by: Spatt, District Judge.
In view of the seriousness of the charge — a threat against
the President of the United States — and the length of the
hearing, the Court thought it appropriate to issue a full
In the continuing Marino — Amato saga, this is the second
Violation of Supervised Release charge against the defendant
Paul Marino. In this proceeding, he is charged with sending an
e-mail message to Mayor Rudolph Giuliani, which threatened the
lives of Mayor Giuliani and President Clinton in violation of
18 U.S.C. § 871(a). The letter reads as follows:
The e-mail at issue (Govt.Ex. 5) is difficult to read, but the
message can be discerned. It is also difficult to make out the
date and time the e-mail was sent and received. However, close
reading reveals that the message was sent on February 26, 2000
at 12:52:35 p .m. (Pacific Standard Time ["PST"]). Apparently,
the message was delivered from onebox.com to another relay at
onebox.com on February 26, 2000 at 12:52:35 p.m. (PST) and was
delivered to Mayor Giuliani's office on February 26, 2000 at
15:55:08 (3:55:08 p.m.) (Eastern Standard Time).
The Government presented the following evidence. Adam J.
Melzak is a technical support supervisor for Monmouth Internet
Corp. of Redbank, New Jersey ("Monmouth Internet"). On October
6, 1999, his company issued a New Account Report (Govt.Ex. 1)
listing a new subscriber, Paul Marino of 61-30 166th Street,
Queens, New York 11365, telephone number 718353-1880. Marino had
a username of cmb839 with a password unique to the username,
vick*kusa or bick*kusa. According to a Monmouth printout
(Govt.Ex. 2), the starting date for the Paul Marino account was
October 6, 1999 and the account was in continuous operation to
the end of service on October 1, 2000.
MR. MARINO: Thank you.
(Tr. at 59.)
United States Probation Officer Richard L. James is
supervising the defendant. Upon receiving the news about this
e-mail, he and Supervising United States Probation Officer David
J. Washington interviewed the defendant on March 8, 2000 and
questioned him about the e-mail at issue. The defendant denied
sending the e-mail and stated that someone could have tapped
into his computer and/or phone mail system and sent the message.
However, the defendant never stated he was not at home at the
(Tr. at 100.)
However, the test equipment of the phone company was coming up
with a fault, meaning the line could not be tested in that there
was an interruption on the line. In the report there was never
any finding of trouble on the phone lines or that in fact
somebody was tapping into either of those two phone numbers.
Gregory Blaha is a senior systems engineer. He manages a team
of engineers involved in data communications at St. John's
University. Blaha is an expert in computer engineering and
computer hardware with extensive qualifications in this field.
Blaha was retained by the attorney for the defendant to give
expert testimony in the field of computers and e-mail technology
as related to the facts in this case. Blaha reviewed the records
in evidence and the violation of supervised release report. He
also inspected the defendant's computer equipment and the
telephone access equipment located in the external north side of
the defendant's residence.
After his review of the records in evidence and his inspection
of the Marino computer equipment and the exterior phone
apparatus, Blaha came to the following conclusions regarding
whether Mr. Marino's computer initiated the e-mails in question:
Q And you said you found discrepancy in the
information provided by Bell Atlantic and Monmouth?
A Yes. I found a timing difference.
Q And it is easy to tap into a telephone?
Q You have demonstrated it?
I say that — I basically summarize that the
investigation that I performed, and the documents
that I looked at, and in considering the interviews
that I conducted with Mr. Marino, left me with the
impression that his explanation being — I should
not use that word, but the possibility of tapping
was certainly there. It is plausible. It is a very
(Tr. at 135-138.)
During cross-examination it was brought out that Marino told
Blaha "that individuals who have knowledge of his Monmouth
Internet connections also have motive to harm him," and Blaha
placed this information in his report. Of course, Blaha knows
nothing about that factual situation. In sum, Blaha's testimony
is that "it is possible that a person tapped into Mr. Marino's
phone at 3:32 in the afternoon, ran a line to the car, spent
several minutes there, and dialed up Monmouth" (Tr. at 148) and
that this person had two modems (or one modem) in his laptop. He
also conceded that "it is also possible that Mr. Marino sent
this message" (Tr. at 194).
Michael Graffeo is employed by the Board of Education of the
City of New York as a school custodian engineer. He has been
employed by the Board of Education for 26 years. He has been
working at George J. Bryan Junior High School for four years. In
his position, he oversees the entire custodial operation, making
sure the building is open, with regard to heating and that
"children are being cared for in the proper manner in the school
building." Graffeo supervises six employees and a secretary.
Graffeo knows Paul Marino. In a chance meeting at a coffee
shop, where the subject of computers arose, Marino gave Graffeo
his business card and asked Graffeo to call him "if you need
anything about a computer in the school." Graffeo later called
Marino and found him to be an expert on computers. Thereafter,
Marino performed computer services for the school, submitted
bills dated December 6, 1999 and June 21, 1999, and was paid
$2,753.00 (Dft. Exs. I-1 to I-3). Graffeo was overwhelmed by
Marino's work with computer systems. He felt the defendant was
"almost a computer genius type."
Significantly, on Saturday, February 26, 2000, the day the
e-mail at issue was sent, Marino performed computer services at
the Bryan Junior High School. The work involved a system tune-up
because the school's computer system had crashed (see invoice at
Dft. Ex. J). Graffeo testified that the defendant was at the
school on Saturday, February 26, 2000, when there would be no
children in the school. He arrived at about 9:00 a.m. and stayed
until roughly 4:00 or 4:30 p.m. Graffeo told the Court "we spent
the whole working day together" and he never left the school.
The computer system crashed and he called Marino.
Mr. Graffeo testified that he may have left Marino alone for
approximately twenty minutes while he went out to get something
to eat. He also informed the Court that he had other
responsibilities in the building and left Marino alone in his
office for another twenty minutes, roughly, while he checked on
other people in the building. Thus, Mr. Graffeo conceded that he
was not with the defendant at every moment during the day. Mr.
Graffeo also stated that he was certain Marino never left the
building between 9:00 a.m. and 4:00 p.m. Mr. Graffeo further
testified that Marino fixed the computer systems, and that the
two men left the building together between 4:00 and 4:30 p.m.
(Trt. at 14-16.)*fn2
Graffeo further stated that as of December 8, 2000, the school
could no longer do business with Marino because someone called
his superior and advised him that Marino had an extensive
criminal record and had a pending case in Federal Court. Graffeo
then was obliged to fire him.
On cross-examination, Graffeo testified that on February 26,
2000, Marino spent the entire day at the school and received no
compensation for his efforts., Also, strangely, Graffeo paid the
defendant for his computer services with his own personal check
and was reimbursed by the Board of Education. In addition,
Graffeo has no recollection of another business visit by Marino
on June 3, 2000, a more recent date; nor did he recall anything
about another visit by the defendant on December 6, 1999.
Graffeo explained that the reason he remembers the incidents of
the February 26, 2000 visit is that there was an unusual
occurrence, namely, a "crash" of the computers, and that he was
"in a panic over being locked out of my computer system."
Under oath, Paul Marino denied sending the e-mail. He
testified that on February 26, 2000, between the hours of
approximately 9:00 a .m. to after 4:00 p.m., he was at the
George Bryan Junior High School. In fact, he left the school
with Graffeo a little after 4:00 p.m. and arrived at his home at
4:25 or 4:30 p.m., at the latest. Marino sent Graffeo an invoice
dated February 26, 2000, for the work he completed that day
As the letter from the school indicates (Dft.Ex. K), it is
apparent that a caller to the school gave details of the
defendant's criminal record. According to Marino, among the few
people who knew of such details was the Amato family, because he
was in the same jail cell with Joseph Amato for almost two
Marino explained how someone could get access to the Monmouth
Internet account from his phone without accessing his computer
Q Can you explain to the Court how someone can gain
access to the Monmouth Internet account from your
phone without accessing your computer system?
A It's pretty easy.
A The phone box on the side of my house is in an area
where you really can't see from the street. It's
guarded by a four-foot high steel grate that you
can't see through. There are garbage cans in front of
It's easy for someone to go there, all the neighbors
are elderly people, 70's and above, open up my phone
box, do whatever they want to do, do some damage to
me and leave undetected.
They don't have to go through my system. They can get
a Palm Pilot or something that you can buy for $150
and hook into my line and do some damage.
(Trt. at 70-71.)
Marino also stated that tapping into his phone line would be
quick, inexpensive, and easy.
Marino testified that he received many warning notices from
Monmouth between December 30, 1999 and February 27, 2000 (see
Dft. Ex. G-l). In fact, he received 81 different multiple
logging warnings. On February 24, 2000, two days prior to the
infamous e-mail, there were 13 attempts to get into his account
but only one such attempt after February 26, 2000.
Marino also experienced trouble with his phone lines and phone
bills, resulting in $1600 being re-credited to his account (see
Dft. Exs. L1-L4). He provided the following explanation as to
why the telephone company credited $1600:
A Because when I first noticed the long distance
bill, which was, the best guess,
was July, August of '99, it was over $400. I don't
make that many long distance calls, so I called the
phone company. The technician came out.
What he found was a pair of phone wires tapped
into my line three poles down. I live in the middle
of the block; it's all private houses. At the end
of the block is an eight-family apartment complex,
and that's where the wires were leading to. So he
ripped the lines off, told me about it, left, and
they re-credited my account.
On, I think it was September or October, I
noticed the bills again, you know, high and
exceptionally long, exceptionally large amount of
local calls. And it was to the tune of like 2,000
local calls, which didn't make any sense. Called
the phone company again. They sent the technician
out, nice guy. He looked at the phone box and asked
my grandmother and I to come outside.
What he found was a pair of wires 6 inches
long, screwed to my phone box stripped at the ends
and tucked behind the box to avoid detection. He
then ripped them off, made note of it, told me to
call the business office with his findings, and
they would do whatever they had to do. And that
resulted in another $800 worth of credits on my
phone line. See Dft. Exhs. L1-L4.
(Trt. at 86-87.)
The Court also notes the following relevant testimony by
Marino with regard to the subject of tapping into his phone
THE COURT: Did you go out personally with this
telephone company representative outside your
THE WITNESS: Yes.
THE COURT: Where did you go?
THE WITNESS: I went to the side of the house.
He came about 20 minutes earlier, he examined the
pole. I saw him go up on the ladder. He examined
the side of the house.
THE COURT: Is that the same area that the —
THE WITNESS: It's in the pictures, yes.
THE COURT: That was in the photographs of what
Mr. Gregory Blaha testified about?
THE WITNESS: Yes, the exact same location.
He rang my bell, requested me and my
grandmother, who were both residents of the house,
to come out and look at the house and offer an
explanation, asked if we knew anything about it.
Then when we said no, he said somebody has been
tapping into your line. I'm removing it.
(Trt. at 90.)
Photographs were introduced showing the phone box on the side
of the Marino house and a large steel grate that blocks visual
access to it (Dft.Exs.N1-N3). The Court further notes that the
Marino home is a private house in which the defendant and his
grandmother live, without any tenants.
Marino also testified with regard to the Secret Service visit
to his home after the e-mail had been sent. The agents arrived
at 10:00 p.m. and questioned him about his computer. With his
permission, they used his computer with his passwords and,
"punched up" his e-mail program, went through his files, and
apparently found nothing and did not confiscate any of the
computer material. He advised the agents about his suspicions as
to the Amatos, signed a few papers for them, and they left. With
reasonable certainty, if the Secret Service agents had any
reliable incriminating evidence against Marino, they would have
seized the computer evidence and may have initiated a criminal
proceeding against Marino, because as will later be shown, this
e-mail could have been the basis for a criminal indictment based
on a threat against the President of the United States.
On cross-examination, Marino again related his difficulties
with the Amato family. He stated that while Guilia Amato could
not tap into the phone line, other people connected with the
Amato family could do so. In fact, he testified that he gave
Joseph Amato, Jr. his account access and password.
Also, on cross-examination, Marino conceded that he saw
Probation Officer James and Supervising Probation Officer
Washington on March 8, 2000 and did not mention to them that he
was at the school 9:00 a.m. to 4:00 p.m. on February 26th. He
explained that he was not looking for alibis that day.
Finally, Gregory Blaha was re-called to testify about certain
problems with the Monmouth Internet and Bell Atlantic records.
He also testified that "there's a high degree of certainty that
Mr. Marino's account originated this e-mail," and that Marino's
phone may have been used, but that Marino's computer did not
originate the message at issue.
DISCUSSION AND CONCLUSIONS
I. The Fundamental Standards in a Violation of Supervised
The rules in this type of proceeding are set forth in the
seminal case of United States v. Meeks, 25 F.3d 1117 (2d Cir.
1994), as follows:
Most of the fundamental constitutional
procedural protections that are normally applicable
to a criminal prosecution are not required for
supervised-release proceedings as a matter of
constitutional law. See generally Gagnon v.
Scarpelli, 411 U.S. at 782, 93 S.Ct. at 1759
("Probation revocation . . . is not a stage of a
criminal prosecution.") For example, the government
need prove the alleged supervised-release violation
only by a preponderance of the evidence, not beyond
a reasonable doubt. See, e.g.,
18 U.S.C. § 3583(e)(3). Nor is there any constitutionally
guaranteed right to counsel, see Gagnon v.
Scarpelli. 411 U.S. at 790, 93 S.Ct. at 1763,
though there is such a statutory right, see
18 U.S.C. § 3006A(a)(1)(C), (E) (1988) (providing for
appointed counsel in supervised-release and
probation-revocation hearings); and there is no
right to trial by jury, see Gagnon v. Scarpelli,
411 U.S. at 786, 93 S.Ct. at 1761. See generally
United States v. Arzate-Nunez, 18 F.3d at 735;
United States v. Stephenson, 928 F.2d 728, 732
(6th Cir. 1991) (detailing due process protections
in supervised-release revocation hearings). The
above constitutional protections have been ruled
inapplicable because the conduct that violates the
conditions of supervised release is not viewed as a
separate criminal offense. Accordingly, any
enhancement of the punishment for the
supervised-release violation should be viewed
primarily as an enhancement of the penalties for
the past acts, rather than for the subsequent acts.
In sum, given (a) that supervised release is an
integral part of the punishment for the underlying
offense and is essentially the same as parole, (b)
that a supervised-release violation is punishable
whether or not it constitutes criminal conduct,
(c) that the violator may be punished both in a
supervised-release violation proceeding and in a
separate criminal prosecution without offending
principles of double jeopardy, and (d) that a
violation of supervised release need not be
established beyond a reasonable doubt, or in a
trial before a jury, or in a proceeding in which
there is a constitutional entitlement to counsel,
we are persuaded that any provision for punishment
for a violation of supervised release is an
increased punishment for the underlying offense.
Also, absent fundamental ambiguity or imprecision in the
questioning, the truthfulness of a witness's testimony is a
question of fact for the Court to determine in such a violation
proceeding. United States v. Lighte,
II. Did the sending of the E-mail Letter at Issue Constitute
Criminal Conduct or a Violation of Supervised Released
A. Did the Sending of the E-mail Constitute a Crime?
To determine whether a threat to the president is a "true
threat" pursuant to 18 U.S.C. § 871, the Court must determine
whether it was made "under such circumstances wherein a
reasonable person would foresee that the statement would be
interpreted by those to whom the maker communicates the
statement as a serious expression of an intention to inflict
bodily harm upon or to take the life of the President.'" United
States v. Johnson, 14 F.3d 766, 769 (2d Cir. 1994) (citing Roy
v. United States, 416 F.2d 874, 877-78 (9th Cir. 1969));
United States v. Compton, 428 F.2d 18 (2d Cir. 1970), cert.
denied, 401 U.S. 1014, 91 S.Ct. 1259, 28 L.Ed.2d 551 (1971). In
addition, the statement must be made in the absence of mistake,
duress, or coercion. The defendant in Johnson made the
following statements: (1) on June 28, 1991, he told a therapist
at a correctional facility that he was a Shiite Muslim and
intended to kill President Bush for his role in the Gulf War,
stating that the war was unnecessary and President Bush had
"hurt [the defendant's] people"; and (2) on August 20, 1991, the
defendant told a Secret Service agent that he was a Shiite
Muslim and intended to kill President Bush because he was trying
to take over the oil in the Middle East and former President
Reagan because he had killed Colonel Gadhafi's son during April
15, 1996, bombing raid of Libya. The defendant was convicted of
two counts of threatening to kill President Bush and one count
of threatening to kill former President Reagan. The Second
Circuit affirmed the judgment of conviction, holding that the
district court properly excluded evidence of defendant's
diminished mental capacity because 18 U.S.C. § 871 requires only
a showing of general intent.
The Third Circuit wrote a lengthy opinion on this issue in
United States v. Kosma, 951 F.2d 549 (3rd Cir. 1991). In that
case, the defendant wrote President Reagan several letters in
which he stated, in relevant part,
Mr. Regan: You are hereby invited to PHILADELPHIA. We
are going to give you a 21 Gun-Salute. 21 guns are
going to put bullets thru your heart & brains, you
are a Disgrace to the AirForce. You are a Disgrace to
Teddy Roosevelt. You are a Disgrace to John F.
Kennedy. You a Disgrace to Nancy Reagan. You have
insulted her intelligence, and dignity, and honor,
and integrity, and I resent this very much.!! You are
In Contempt of EVERYTHING that I represent, and
standby, and believe. OFFICIALLY: you were NEVER the
"president" of anything.!!
In an non-jury trial in November 1990, the district court found
the defendant guilty of violating section 871 under an objective
reasonable person standard for having made the above and other
similar comments. The Third Circuit affirmed the judgment of
After adopting the objective reasonable person standard
already used by this Circuit, the Third Circuit analyzed a
number of factors to reach its conclusion that the defendant's
comments were not protected political hyperbole like the
comments made in Watts v. United States, 394 U.S. 705, 707, 89
S.Ct. 1399, 22 L.Ed.2d 664 (1969) (holding that 18-year old
Vietnam protestor who stated, "If they ever make me carry a
rifle, the first man I want to get in my sights is LBJ," did not
violate § 871, because the comment constituted political
hyperbole protected by the First Amendment). These factors are
helpful to this Court in determining whether the email statement
was a "true threat." Specifically, the Third Circuit noted: (a)
the letters were sent directly to the president; (b) the content
of the letters was of questionable interest in political
advocacy; (c) the defendant specified a time, date, and place
for the 21-gun salute; (d) it is doubtful that the person who
opened the letter
in the White House mailroom laughed at its contents; (e) the
letter did not deal with matters of public concern because it
was not made in the context of a conversation about public
policy; (f) the letter was nothing more than a series of
incoherent rantings; (g) the letters were not sent to a third
party but to the President himself; and (h) any marginal
political value in the letters was outweighed by the compelling
national interest in protecting the chief executive.
Also helpful to this Court's analysis is the Third Circuit's
string cite of cases in which various courts have found that
defendant's threats were unprotected expression. See United
States v. Smith, 928 F.2d 740, 744 (6th Cir. 1991) ("Some one
ought to Take [the President] OUT AS IN `Death.'")' United
States v. Manning, 923 F.2d 83, 84 (8th Cir. 1991) ("You can't
keep me from killing George Bush; One day I will have my chance,
just watch and see."); United States v. Mitchell,
812 F.2d 1250, 1252 (9th Cir. 1987) (threatening remarks interspersed
with claims that defendant was Gandhi and had a guerilla army in
the Philippines); United States v. Crews, 781 F.2d 826, 829
(10th Cir. 1986) ("If Reagan came to Sheridan [Wyoming], I would
shoot him."); United States v. Merrill, 746 F.2d 458, 461 (9th
Cir. 1984) (letters contained bloody depictions of Reagan's head
with the words "Kill Reagan"); United States v. Welch,
745 F.2d 614, 616 (10th Cir. 1984) ("If Reagan was here, I would
shoot him. I wouldn't make the same mistake as Hinckley did.");
United States v. Howell, 719 F.2d 1258, 1260 (5th Cir. 1983)
("It's too bad that John Hinckley did not get him. I will kill
the President if I get a chance."); United States v.
Frederickson, 601 F.2d 1358, 1362 (8th Cir. 1979) ("I am going
to blow them all up. . . . I start with the President and go
down."). In all of the above cases, the statements were made to
third parties, not to the president himself.
Addressing the question that the defendant's statements were
ludicrous, made in jest, and may appear to demonstrate nothing
more than the fact that he was insane, the Third Circuit
remarked, "`Although it is true that a series of bizarre remarks
may tend to lower a person's credibility, potential assassins
may well be irrational. Hence, to dismiss threats merely because
a person expresses himself in an outlandish, illogical manner
may defeat section 871's purpose of apprehending people who
potentially pose a threat to the President.'" Kosma, 951 F.2d
at 553 (quoting United States v. Mitchell, 812 F.2d 1250, 1256
(9th Cir. 1987)).
Because the test requires the Court to examine the
circumstances of the allegedly threatening comment, the relevant
factors are: (1) who received the e-mail and what their reaction
to it was; (2) if the person who received it was connected with
the Mayor's Office; (3) whether that person notified the Mayor's
protective service or the NYPD; (4) whether anyone notified the
Secret Service; and (5) whether Marino, the alleged suspect, was
quickly either apprehended or questioned after the threat was
Reviewing the evidence in this case, the Court concludes that
the e-mail at issue may very well constitute a crime in
violation of 18 U.S.C. § 871. It was sent to Mayor Giuliani with
the knowledge that, with reasonable certainty, it would be
forwarded to the United States Secret Service. The writer
threatened to kill Mayor Giuliani with a pistol and to kill
President Clinton. The writer hated and wanted both dead;
mentioned the President's wife as a neighbor; wished they would
die; stated that he would see "Rudy" in hell; again mentioned
that both should die; and threatened to launch a rocket into
President Clinton's bedroom in his new home (presumably in
Chappaqua, New York). In addition, the writer stated that he had
the money to arrange these things and had the nerve (or courage)
to do so. Finally, the writer said that he had nothing to live
for and presumably meant that he could do
these horrific acts without thought of his own safety.
B. Would the Sending of the E-mail Constitute a Violation
of Supervised Release?
Obviously, if the act constituted a federal crime it would
concomitantly constitute a violation of supervised release.
However, even if the sending of the e-mail did not rise to the
level of a criminal threat to the President of the United
States, it would certainly constitute a violation of some
conditions of supervised release and would be punishable even if
it did not constitute such criminal conduct. (See United States
v. Meeks, supra at 1123).
III. The Court's Determinations
After reviewing the evidence, the Court finds that the
Government failed to prove, by a preponderance of the evidence,
that the defendant Paul Marino sent, or directed the sending, or
had anything to do with the sending of the e-mail letter at
First, the Court accepts the premise established by expert
witness Gregory Blaha, that the Marino phone lines could be
tapped at the exterior wall and the email message sent by such
an interloper. This is not refuted by the Government, who called
no expert to contradict such testimony.
Second, the Court credits the testimony of Michael Graffeo,
who stated unequivocally, that Paul Marino was at George Bryan
Junior High School on Saturday, February 26, 2000 from
approximately 9:00 a.m. to approximately 4:00 p.m. The email was
probably sent between 3:50 and 3:55 p.m. from a phone line at
the Marino house. Graffeo was apparently an impartial
disinterested witness and would have no motive to falsify his
Third, the telephone company records reveal that there may
have been tapping of the Marino phone line.
Fourth, the Court credits the testimony of Paul Marino. In
doing so, the Court notes the active animosity and feuding
between Marino and the Amato families. The Court recalls that
the Amato witnesses testified before this Court in the prior
violation of supervised release proceeding with actual venom and
hatred against Marino. They started a criminal proceeding
against the defendant. As I recall, at least one of the Amato
witnesses testified falsely against Marino. The Amatos and
Marino initiated criminal proceedings against each other in
state courts. However, the Court finds that Marino, at least in
this proceeding, is credible, and that he did not have anything
to do with the sending of this vicious e-mail.
Fifth, and perhaps equally persuasive, common sense and logic
impels the conclusion that someone else sent the e-mail. With
his sophisticated knowledge of computers and e-mails and the
like, would Marino, on supervised release, send an incriminating
message on his own phone line knowing it would be so identified?
Again, applying common sense, if someone from the Amato clan
chose to tap into the exterior Marino phone line and sign the
name Giulia Amato, they would know it would put the blame on
Marino, because, logically, Giulia Amato would never be foolish
enough to sign a letter such as this in her own name. And who
else would want to incriminate Giulia Amato? Who is involved in
a running feud with the Amato family? And on whose phone line
was the message sent? This may have been a sophisticated and
devious attempt to incriminate the hated individual who is now
involved with Joseph Amato's former wife.
The Violation of Supervised Release report, dated June 8,
2000, contains one charge against the releasee, Paul Marino,
namely "New Criminal Conduct: Threats against the President." As
stated above, the Court finds that the Government failed to
prove that Marino was involved in such
criminal conduct, and this Violation of Supervised Release
proceeding is dismissed.
IT IS SO ORDERED.