A Second Circuit panel has ruled that infamous mob boss Carmine “The Snake” Persico will continue serving his 100-year sentence in federal prison.  In United States v. Persico, 16-2361, the Second Circuit (Walker, Jacobs, Parker) affirmed by summary order the decision of the United States District Court for the Southern District of New York (Duffy, J.), denying Persico’s motion to shorten his sentence pursuant to the old Federal Rule of Criminal Procedure 35(a). 

Persico, now 83 and reportedly in poor health, was the head of the Colombo crime family and part of the “Commission,” which acted as the governing body for New York’s mafia families.  In 1985, the office of the U.S. Attorney for the Southern District of New York – headed at the time by Rudy Giuliani – charged several prominent mafia figures, including Persico, with crimes related to their participation in the Commission.  The dramatic eleven-week trial that followed – during which Persico elected to represent himself – resulted in the conviction of all ten defendants.  Persico himself was convicted of several counts related to violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), extortion, and labor bribery.   United States District Judge Richard Owen sentenced Persico to 100 years’ imprisonment.  Persico’s subsequent direct appeal and collateral attack were unsuccessful. 

Persico is currently serving his lengthy sentence at FCI Butner, with an unlikely projected release date of March 20, 2050, when Persico would be 117 years’ old.  At least some have reported that Persico, notwithstanding his imprisonment, remained until recently the head of the Colombo crime family.[1]  Persico is not the only well-known inmate at FCI Butner:  notorious Ponzi schemer Bernard Madoff, who has a projected release date of November 14, 2139, is also at Butner.  News stories have suggested that Persico and Madoff have become social acquaintances.[2]

More than twenty years after his post-conviction litigation concluded, Persico filed a new motion under the old Federal Rule of Criminal Procedure 35(a), which was in effect at the time Persico committed his offenses and which therefore still applies to his sentence.  The old Rule 35 provided that “[t]he court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within” 120 days after the sentence is imposed or after other triggering events that signify the end of the appeal process.  Fed. R. Crim. P. 35 (1985).[3]  Persico argued that his sentence was illegal because it is substantively unreasonable, violates due process because it relied on factual inaccuracies, and is unlawful as a result of Brady violations.  The district court disagreed, noting that correction of a sentence under the old Rule 35 is discretionary and that, moreover, Persico’s arguments were unavailing. 

The Second Circuit affirmed, concluding that Persico “offers no basis to disturb the district court’s decision, which is easily located within the range of permissible decisions,” particularly considering that Persico was sentenced approximately thirty years ago and has already had the opportunity to raise challenges to his conviction and sentence on direct appeal and collaterally under 28 U.S.C. § 2255.  Time will tell whether this short order will conclude once and for all the litigation over Persico’s conviction.