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Russo v. United States

August 23, 2007

ANDREW RUSSO MOVANT,
v.
UNITED STATES OF AMERICA RESPONDENT.



The opinion of the court was delivered by: Trager, J.

MEMORANDUM AND ORDER

On January 26, 1999, following a jury trial, movant Andrew Russo ("movant") and his co-defendant Dennis Hickey were convicted on counts one, two and four of their indictment: for endeavoring to impede the due administration of justice, a violation of 18 U.S.C. § 1503; for conspiracy to do the same, a violation of 18 U.S.C. § 371; and for attempting to corruptly persuade another person, with the intent to delay communication to the FBI of information relating to the possible commission of a federal offense, a violation of 18 U.S.C. § 1512(b)(3). On August 2, 1999, movant's conviction on count three of his indictment was dismissed. It charged him with an obstruction of justice violation, pursuant to 18 U.S.C. § 1503, based on United States v. Masterpol, 940 F.2d 760 (2d Cir. 1991).*fn1 On August 3, 1999, movant was sentenced to fifty-seven months' imprisonment to be followed by three years of supervised release and a $150 special assessment. Movant's appeal was denied. United States v. Russo, 302 F.3d 37 (2d Cir. 2002).

On September 9, 2004, movant filed a motion pursuant to 28 U.S.C. § 2255.*fn2 He filed a supplemental memorandum of law on December 21, 2004. In his supplemental memorandum, movant argues six points that he believes should result in a reversal of his conviction. See generally Pet.'s Supp. Mem. ("Supp. Br."). His first claim is that the government failed to provide evidence to the defense that their key witness, Dorothy Fiorenza, was suffering from bipolar disorder, which constituted a violation of Brady v. Maryland, 373 U.S. 83 (1963). Supp. Br. 1-11. His second claim is that Fiorenza's diagnosis, as well as taped conversations between Fiorenza and her husband, are newly discovered evidence which warrant a new trial. Supp. Br. 12-13.

Movant's third claim is that he received ineffective assistance of counsel when his defense counsel decided not to call Theresa Castranova, a girlfriend of his son, as a witness. Supp. Br. 14-19. Movant's fourth claim is that in Fiorenza's testimony, she deliberately misrepresented her cooperation agreement with the government, resulting in perjury. Supp. Br. 20-27. Movant's fifth claim is that the court's failure to properly voir dire the jury and to declare a mistrial denied him a fair trial. Supp. Br. 28-37. Movant's final claim is that the federal guidelines under which he was sentenced are unconstitutional. Supp. Br. 38-39. For the following reasons, the motion is denied.

Background

Movant's conviction stemmed out of efforts to tamper with an anonymous juror in a 1994 trial of his son Joseph Russo ("JoJo") and several other Colombo family defendants in the Eastern District of New York for racketeering murder and other offenses. United States v. Persico, No. 92-CR-351. Theresa Castranova, JoJo's girlfriend at the time of his trial, had gone to school with one of the jurors, recognized her in court and provided the juror's name to movant. When the government learned that a juror's mother had been approached by an investigator working for movant, movant and his associate and later co-defendant Dennis Hickey helped hide Castranova so that she could not be found by the FBI and served with a grand jury subpoena. As a result, the investigation was closed.

(1)

In early 1994, movant's son JoJo and several other Colombo family members were on trial for murder and murder conspiracy before Judge Charles P. Sifton in the Eastern District of New York (the "Persico" case). United States v. Persico, No. 92-CR-351. The Persico jury was anonymous, in accordance with Judge Sifton's orders. When the Persico trial began, movant was incarcerated, Tr. 1352, but was still very involved in the decision-making of his son's legal team. Tr. 1356. JoJo required his father's approval of all trial strategy decisions. Tr. 1368. Upon his release, movant continued his involvement, as evidenced by transcripts of prison telephone conversations between movant and his son in which he demanded to read every piece of paper in JoJo's case. Tr. 1356, 1368.

Regina Wyman was an alternate juror in the Persico trial. Tr. 648. During the trial, Theresa Castranova, JoJo's girlfriend, recognized Wyman, a former schoolmate of hers, in the courtroom. Tr. 655-57. After the Persico convictions, a private investigator, Nicholas Vasile, went to Wyman's mother's home, looking for Wyman. Tr. 648-49. She refused to provide Vasile with Wyman's address and immediately contacted Wyman, who in turn contacted Judge Sifton. Tr. 649-50.

In May 1994, an FBI investigation began, Tr. 603, and a grand jury was convened. Tr. 610. Vasile admitted to contacting Wyman's mother, but stated that he obtained Wyman's name from a man whose name Vasile did not know. Tr. 604-05. A grand jury subpoena was issued for Castranova. Tr. 611. After a year of unsuccessfully searching for her, the investigation was placed in a pending inactive status. Tr. 617-19. The file was closed in February 1996. Tr. 619.

In 1998, Dorothy Fiorenza approached the government to cooperate in testifying against movant. She agreed to plead guilty to a violation of 18 U.S.C. § 1503 in exchange for the government helping herself and her husband, Larry Fiorenza - who had been convicted along with JoJo - receive lesser sentences. Tr. 814. Her testimony included information about movant and Hickey's hiding away of Castranova as well as her conversations with movant regarding his efforts to contact the juror.

Fiorenza, who was movant's mistress in early 1995, was a key witness for the government at movant's trial. She was also an attorney. Fiorenza testified that as part of her cooperation agreement, the government agreed to write a letter to her husband's sentencing judge notifying him of her cooperation and asking him to reduce her husband's sentence. Tr. 792. She also testified that, based on her guilty plea to § 1503, she would face automatic disbarrment. Tr. 790.

Fiorenza testified that during the time she and movant were together, movant was living at Dennis Hickey's Crane's Neck estate. Tr. 684-85. She further testified that a Persico trial transcript, which included the court's order prohibiting any effort to contact a juror, was found in the estate. Tr. 1619. According to Fiorenza, upon movant's request, she began to visit JoJo in prison and pass coded messages between them. Tr. 689, 694-95. During these conversations, JoJo asked what was going on with "Nick V." and "Dick Tracy" - references to Nick Vasile. Tr. 696.

In late January 1995, movant took Fiorenza to Hickey's farm, where she first met Castranova. Tr. 698-701. Fiorenza testified that movant explained to her that Castranova was staying on the farm to avoid a subpoena. Tr. 699, 741. Castranova told Fiorenza that she had been seeing JoJo prior to his going to prison. Tr. 708. She added that movant instructed her not to use her real name but rather to use code names, such as "Lauri," "the Brat" and "Frankie." Tr. 701, 703. These code names are used throughout transcripts of prison conversations between movant and JoJo to refer to Castranova. Fiorenza testified that movant furnished Castranova with a Mercury Cougar and a Jeep, Tr. 766-67, while Hickey sent new appliances to his farm for her use. Tr. 703. In addition, Hickey gave Castranova $5,000 for her birthday and gave her son money as well. Tr. 758.

According to Fiorenza, after the first meeting, movant, Fiorenza and Castranova began to spend a lot of time together. Tr. 704. Between January and April 1995, Fiorenza and Castranova saw each other at least once a week. Tr. 743. Castranova told Fiorenza that she was staying at Hickey's farm to avoid a grand jury subpoena because she had attended JoJo's trial and recognized one of the jurors. Tr. 708-09. Castranova then provided the juror's name to movant and explained that an investigator had been sent to contact the juror. Tr. 708-09. Because Castranova was scared to visit JoJo in person, she sent letters for Fiorenza to deliver to JoJo. Tr. 750-51. After reading a letter, JoJo would rip it up and Fiorenza was instructed to dispose of it. Tr. 751. However, she kept some of them and eventually turned them over to the government. Tr. 752-53.

On April 29, 1995, Fiorenza videotaped Castranova and her son on Hickey's farm. Tr. 767-68. Fiorenza testified that on the following day, movant's probation officer made a surprise visit to the farm and Castranova immediately ran upstairs and hid under a bed. Tr. 772. In May 1995, movant allowed Castranova to visit JoJo in prison, as by that time the grand jury investigation had ended. Tr. 777.

Fiorenza's testimony was corroborated by other witnesses, numerous transcripts of prison conversations between movant, JoJo and Hickey, letters between Castranova and the Russos and videotape evidence of movant with Castranova. For example, during a search of Hickey's estate, the FBI discovered that movant ...


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