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SDNY COURTHOUSE, April 21 – Convicted Long Island politician Dean Skelos has two more years on his sentence at  Otisville Federal Correctional Institution. He has served less than 30% of his sentencing, now making him ineligible for release to home confinement.

Amid the Coronavirus crisis, he asked U.S. District Court for the Southern District of New York Judge Kimba M. Wood for compassionate release, while the Bureau of Prisons considers his application for furlough.

AUSA Thomas McKay said that Otisville staff on April 20 were told, no more home confinement unless served 50% of sentence. Skelos is at 30%, so no home confinement.
 
  The argument moved to furlough, which would moot out Skelos' compassionate release application.

  AUSA McKay continued: If Otisville really did get Skelos' application on March 26, his 30 days would be up by this Saturday.

Judge Kimba Wood asked, I understand he is alone in his cell?

  AUSA McKay replied, I don't know.

  Judge Wood asked / told McKay: We have read that all inmates at Otisville are being furloughed?

  AUSA McKay said, That's not my understanding, based on talks with camp administrator.

 Judge Woods asked, Mr Skelos was tested and proved to be positive but asymptomatic. Why was he tested?

   AUSA McKay replied, He had a fever on April 8.

  Judge Wood followed up, How many tests for COVID-19 have been administered in Otisville and how many are positive?

AUSA: I'll look on website... Nine  inmates and 10 staff. But that doesn't distinguish between the camp and the separate medium security facility.

   Judge Wood concluded, If furlough is not granted by Thursday, please turn to briefing about my jurisdiction.

   AUSA McKay previewed his briefing, saying We see two issues - jurisdiction given Mr. Skelos' appeal to the Second Circuit, and the question of exhaustion [of administrative remedies]. We think the court should simply deny the motion.

  Skelos' lawyer Robert Gage implored: This situation is Kafka-esque, as one judge put it. We urge your Honor to grant compassionate release.

   After AUSA McKay then quoted Dr. Fauci, Judge Wood said, Your premise, Mr. McKay, is that it is the inmate's immune system that is responding. But isn't the rate of infection part of it?

  Skelos' lawyer Gage made a request: Can you cause the release to us of the memo with the standards for release?

  Judge Wood: I don't think denial of furlough could be appealed, so I'm not sure how it would help you. Can you brief by 5 pm on Thursday?  Both sides said yes, though a grant of furlough was obviate the need for briefing. Inner City Press will stay on this case - or rather, cases.

  On April 10 Dean Skelos' son Adam has asked Judge Wood to be release from detention in Danbury: "Re: United States v. Dean Skelos and Adam Skelos Case No. 15-cr-317 (KMW) Dear Judge Wood, We represent Adam Skelos in the appeal of the above matter by appointment of the CJA panel. On his behalf, we respectfully move the Court pursuant to 18 U.S.C. § 3582(c)(1)(A) to allow him to finish the remaining portion of his prison sentence on home confinement. This change in his sentence would allow him to protect himself and others from the disease caused by the 2019 novel coronavirus (“COVID-19”) by sheltering in place at his residence. In recent weeks, COVID-19 has caused an unprecedented global public health crisis. As of April 9, 2020, 427,460 Americans have contracted COVID-19, and 14,696 have died from it.1  Prisons have not been spared: hundreds of COVID-19 cases have been confirmed in local, state and federal jails and prisons, though the actual figure is almost certainly higher because of underreporting.2  There are currently 36 inmates and 15 staff at Danbury FCI (“Danbury”) with confirmed cases of COVID-19 and we believe that those who are infected with the disease are more widespread than previously announced." Watch this site.  

  On April 3 in a telephone conference Judge Wood grilled Skelos' lawyers on why he is not instead applying for bailing pending appeal.

   Assistant US Attorney Thomas McKay called this very telling, indictive that Skelos' real concern is not the possibility of getting COVID-19 at Otisville but instead using the crisis to get his sentence eliminated.   

As to compassionate release, as Inner City Press has been reporting this week in a decision by SDNY Judge Andrew L. Carter and another pending from Judge P. Kevin Castel, there is a strong argument that exhaustion of administrative remedies is required before a federal District judge would grant release.  (Judge Castels confirmed that on April 6 here.)

Skelos only applied to the Bureau of Prisons in late March, and BOP has thirty days to rule.   Judge Wood directed Skelos' lawyers to address by Tuesday the question of why they are not asking for bailing pending appeal.

  On April 6 past 5 pm Skelos' lawyers replied that "any time spent out on bail pending appeal would not count as time served against Mr. Skelos' sentence... Mr Skelos decided it was in his best interest not to seek bail pending appeal.. Scientists are at least 18 months away from an effective mass produced vaccination" for COVID-19. They cited CNN. Watch this site.
 Inner City Press will continue to report on this case. It is US v. Skelos, 15-cr-317 (Wood).  

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