Free Reply/Response Misc - District Court of Connecticut - Connecticut

‘ Case 2:90-cr-00018-AHN Document 270 Filed 06/12/2008 Page 1 of 4
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
GAETANO J. MILANO : ` n
v. : CIVIL NO. 3:95CVl 145(AHN)
Master Docket 2:90CRl 8(AI-IN)
UNITED STATES OF AMERICA :
_”_-_mm"—___ June 12, 2008
GOVERNMENT’S RESPONSE TO M1LANO’S
MO Q .; RA 12- l l . o. 9 - r. .0 ATTEND HIS FA ls.! ..... ’S 1 ’ ·
By motion dated June 12, 2008, the petitioner, Gaetano J. Milano, has asked the Cotut for
a l2—hour furlough to attend his father’s funeral. Defendanfs Motion For Furlough. According
. to the motion, the petitioner’s family is having the funeral for his father on June 14, 2008 at
noon. Q. 1] 6. In his motion, the petitioner explains that he has been a model prisoner at the
facilities where he has been imprisoned, including most recently the Wyatt Detention Facility in
Rhode Island. Q. ml 2-3. He is requesting a 12-hour ftulough to attend the fimeral "on whatever
. conditions the Court deems appropriate? Q. 1] 7. The petitioner asserts that the Court has the
authority to grant the requested relief "based on the inherent authority ofthe Court to modify its
sentence and in the interests of justice." Q. 1{ 8.
On June ll, 2008, petitioner’s counsel had indicated to Govemment counsel that he was
considering asking the Court for this relief. Upon receiving this motion at approximately 10:00
a.m. today, the Government spoke with the Counsel’s Office for the Bureau of Prisons and
forwarded the petitioner’s motion. Also, the Government spoke with an attorney in the
Cotmsel’s Office for the United States Marshals Service about the furlough request.

Case 2:90-cr-00018-AHN Document 270 Filed 06/12/2008 Page 2 of 4
The petitioner does not cite, and the Government is unaware oi any case law that permits
the Court to release a sentenced prisoner- on furlough} For a prisoner in the Bureau of Prisons,
the authority to grant furloughs to inmates whose offenses occurred on or after November 1,
1987, which is the case here, is with the Director ofthe Bureau of Prisons. 18 U.S.C. § 3622. A
prisoner may seek a day furlough (16 hours or less) or an overnight furlough. The Government
understands that the authority to approve furloughs in Bureau of Prisons institutions is delegated
to the warden or acting warden of the institution. Inmates do not have an enforceable right in
being granted a furlough. 28 C.F.R. § 570.30 ("The fiirlough program of the Bureau of Prisons is
intended to help the inmate to attain correctional goals. `A furlough is not a right, but a privilege
granted an inmate under prescribed conditions. It is not a reward for good behavior, nor a means
to shorten a criminal sentence.”); Bowser v. Vose, 968 F.2d 105, 106, 108 (lst Cir. 1992). The `
BOP has established minimum conditions which the inmate must first satisfy in order. to be
eligible for a furlough. If those preliminary minimum conditions are met, however, the inmate is
not automatically entitled to a furlough. Bowser, 968 F.2d at 108-09 ("[E]ligibility is not the
I same as entitlement?) Section 570.35(d) of 28 C.F.R. dealing with limitations of furlough
eligibility provides: I
The Bureau of Prisons does not have the authority to furlough U.S.
Marshals prisoners in contract jails. Staff are to defer requests for
such furloughs to the U.S. Marshals.
I A Westlaw search identified the case of United States v. Von Ahn, 2006 WL 752904
(ED. Wis. 2006), in which a defendant serving a sentence for wire fraud frled a motion for
interruption and stay of his sentence so that he could attend the funeral of his father-in—law and
comfort his family. In denying the motion, the Court noted that the inability to attend the funeral
is "simply one of the many consequences of committing a crime." Id. The Court rightly noted
that it had no way of monitoring the inmate’s behavior if released and that while the inmate has
been a model prisoner, “there is no_ way that this court can determine whether the taste of
freedom will make a voluntary return to the institution too strong a temptation to resist." Id
‘ ‘ 2

Case 2:90-cr-00018-AHN Document 270 Filed 06/12/2008 Page 3 of 4
Here, the Government is unaware ofthe petitioner having made a request of the Bureau of
Prisons or the United States Marshals Service ("USMS”). Given that the petitioner is cturently at
the Wyatt Detention Center on a writ due to his pending habeas petition, the Bureau of Prisons "
does not consider him to be in its custody and, therefore, he is in the custody of the USMS. If
this be so, the USMS has established directives and policies for prisoner operations. The USMS
has directives for its in-district movement of prisoners who are either a district or up to 50
miles in a bordering district. Section 9(1)(C)(5)(i) of the USMS directives entitled “Deathbed ‘
Visits, Private Viewing and Other Special Sitr1ations,” provides that “[p]risoner attendance at
funerals is strictly prohibited? In speaking with the USMS, the Government understandsthat
this prohibition stems from deputy United State Marshals being harmed in the past during
escorted visits to funeral homes.
The petitioner’s loss of his father is unfortunate and his desire to attend his father’s ‘
funeral is most understandable. He, however, as an LCN member has been convicted and is
serving a 33-year prison sentence for committing RICO conspiracy, RICO, conspiracy to murder,
and murder offenses. The murder relates to his having, after two failed attempts, successfully
lured the Patriarca LCN Family underboss into a van and placed a low caliber gun to the back of
underboss’s head. He then killed him with a single shot. The murder, according to the evidence, V
was done for the petitioner’s advancement in the LCN Family’s hierarchy.
In view of the petitioner’s conviction for violent offenses, he should not be released
without supervision. Moreover, according to the Bureau of Prisons, the petitioner is scheduled to
be released in May 2019, which means he has approximately ll years lefi: to serve in prison.
This is still a good amount of time irrespective of whether his habeas petition is pending.
3 .

I Case 2:90-cr-00018-AHN Document 270 Filed 06/12/2008 Page 4 of 4
Based on the foregoing, the Government respectfully submits that the Court’s should
deny the petitioner’s motion.
U Respectfully submitted,
NORA R. DANNEHY
ACTING UNITED STATES ATTORNEY
JOHN H. DURHAM `
COUNSEL TO THE UNITED STATES ATTORNEY
- Federal Bar No. ct05087
PETER S. J
ASSISTANT UNITED STATES ATTORNEY
Federal Bar No. ct03l92 _ `
157 CHURCH STREET
NEW HAVEN, CT 06510 `
(203) 821-3742
CERTIFICATE QE §ER\/ICE
This is to certify that on June 12, 2008, a copy of the Governrnent’s Responsewas sent by
facsimile transmission and mailed, postage prepaid, to: (
Craig A. Raabe, Esq. . `
Ed Heath, Esq.
Robinson & Cole . ·
280 Trumbull Street
Hartford, Connecticut 06103-3597
Facsimile (860 275-8299 - -
` (Counsel for Gaetano Milano)
PETER S. J ONGELHED (
. ASSISTANT UNITED STATES ATTORNEY
_ 4