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Russo v. Hasty

May 22, 2006

ANDREW RUSSO, PETITIONER,
v.
D. HASTY, WARDEN, METROPOLITAN CORRECTIONAL CENTER RESPONDENT.



The opinion of the court was delivered by: John F. Keenan, United States District Judge

OPINION and ORDER

PRELIMINARY STATEMENT

A Motion for Equitable Relief requesting the immediate release of the movant Andrew Russo ("Russo") is before this Court. Russo claims to have served 18 months in excess for a 1996 parole violation due to the Parol Commission's erroneous conclusion that he was the head of the Colombo crime family, when he claims to be only a captain of that organization. Russo was released from the operation of this parole violation sentence on May 19, 1999, but according to Russo, he should have been released from the sentence in November 1997. Russo, who is currently serving time for another crime (jury tampering conspiracy), believes an 18-month credit should, therefore, be applied to his current sentence. By Russo's calculations, his current sentence would then be completed and his immediate release required. The Court disagrees.

BACKGROUND

In November 1986, Russo was sentenced by this Court to 14 years imprisonment for RICO violations and related crimes. See United States v. Persico, 646 F. Supp. 752 (S.D.N.Y. 1986), aff'd, 832 F.2d 705 (2d Cir. 1987), cert. denied, 486 U.S. 1022 (1988). On July 29, 1994, Russo was released from prison on parole. As a special condition of his parole, Russo was prohibited from associating with members and associates of organized crime. On March 13, 1997, a warrant was executed alleging that Russo had violated this special condition by meeting with Joel Cacace on May 20, 1996, and Russo was taken into custody.

After a parole revocation hearing, the United States Parole Commission issued a July 2, 1997 order revoking Russo's parole and sentencing him to 24 months imprisonment, as opposed to the customary range of 0-8 months, because of "aggravating factors," specifically,

Your association with a member/associate of the Columbo Crime Family. Additionally, an FBI informant has advised that you were made boss of the Colombo Crime Family after your release from prison in 1994. (Petr.'s Verified Pet. dated Nov. 17, 1997, Ex. C.)

The National Appeals Board affirmed this decision and added that the Parole Commission's finding that Russo was the head of the Colombo crime family was supported by a finding from Judge Hurley of the Eastern District of New York. (Petr.'s Verified Pet. dated Nov. 17, 1997, Ex. E (citing United States v. Hickey, No. 96 Cr. 693 (DRH)(order granting bail dated Feb. 18, 1997))).

To challenge the agency's final order, Russo filed a habeas petition with this Court on November 18, 1997. On May 7, 1998, Russo's petition was denied. Russo v. Hasty, No. 97 Civ. 8591, 1998 WL 230958 (S.D.N.Y. May 7, 1998).

On appeal, the Second Circuit affirmed revocation of parole but remanded for reconsideration of sentencing because

The district court, and the Parole Commission, relied upon a finding by Judge Denis R. Hurley of the Eastern District of New York that Russo was the boss of the Colombo crime family. Submissions from counsel for Russo after oral argument indicate that Judge Hurley has since retreated from this position ... In light of this new finding, we vacate that part of the judgment relating to Russo's sentence, and remand the case to the district court with instructions to remand to the Parole Commission for resentencing on his parole violation.

Russo v. Hasty, 1999 WL 197197 (2d Cir. Apr. 1, 1999).

In accordance with the Second Circuit decision, this Court remanded the case to the Parole Commission. Russo v. Hasty, No. 97 Civ. 8591 (JFK) (order remanding to Parole Commission dated Apr. 27, 1999 (signed by Duffy, J.). Apparently, the Parole Commission never resentenced Russo, and Russo was released on May 19, 1999, at the expiration of the original 24-month sentence.

Russo was not released into the community on May 19, 1999, but rather he began serving another sentence for an unrelated crime: After Russo was released in July 1994 from his original RICO sentence but before his arrest in March 1997 for violating a special condition of his parole, Russo was indicted and charged ...


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