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3:12 CR 17 (SRU) FEBRUARY 1, 2014

SENTENCING MEMORANDUM John Miller submits this Sentencing Memorandum, through counsel, to bring to the Courts attention significant factors in determining an appropriate sentence. His sentencing is scheduled for February 12, 2014 in the United States District Court, Hartford, Connecticut before the Honorable Alvin W. Thompson, U.S.D.J.

The PSR calculates Mr. Millers Sentencing Guidelines range as 12 to 18 months incarceration based on a Total Offense Level 13 and a Criminal History Category I. Mr. Miller submits that a

downward departure and/or a non-guidelines sentence is appropriate and a sentence of probation is warranted.

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INTRODUCTION On September 21, 2012 John Vincent Miller pled guilty to Count Ten of the

Indictment charging him with Deprivation of Rights: Unreasonable Force, in violation of 18 U.S.C. Section 242. The maximum penalty for these offenses is 10 years in prison and three years of supervised release, a $250,000 fine and a $100 special assessment. The PSR accurately summarizes the offense conduct of Mr. Miller and the codefendants. Regarding Mr. Millers background and personal history, the Offender Characteristics represented in the PSR at paragraphs 32 through 56 fairly represents that information and will be addressed throughout this memorandum. As the Court is well aware, the United States Supreme Court, in United States v. Booker, 125 S.Ct. 738 (2005), untied the hands of the sentencing court and rendered the United States Sentencing Guidelines no longer mandatory, but advisory. In United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), the Second Circuit reviewed Booker and explained how courts should now approach sentencing and the determination of a fair and just sentence. Since the Supreme Courts decision in Booker, while the sentencing court is still required to consider the applicable Guidelines range, it must also consider the other factors enumerated in 3553(a) when imposing sentence. Mr. Miller would like the Court to consider the 3553(a) factors in order to gain a particular understanding of the individual that finds himself before the Court for sentencing.

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18 U.S.S.C. 3553(A) FACTORS In preparation for sentencing, many of the defendants friends and family

members have written and will speak on the defendants behalf. Each individual has and will indicate to the Court that Mr. Miller is a great husband, father, coach, and friend. The Court will hear about accolades, awards and citations that the defendant received as a police officer. The Court will also hear instances of conduct that are unbecoming an officer. While considering these different accounts, the defendant asks you to consider the fact that many of his experiences while in the line of duty have affected him greatly, and he began to malfunction in ways that, at the time, he couldnt understand. Although Mr. Miller knew that serving as a police officer is a dangerous job, he couldnt have prepared himself for the after effects of having to shoot someone, and having ended two lives as a result of his law enforcement duties. The defendant did not seek treatment, counsel or advice on how to deal with his mental health issues. Eventually, the defendant, with the help of family and friends, realized that he needed help, and this process continues to this day. John was born February 21, 2014 to Joseph and Gail Miller. He was born in East Haven, Connecticut and moved to Ansonia when he was 9 years old. He has two brothers and two sisters, they share a close bond, and all live in close proximity and have stable lives and families of their own. As early as high school John knew he wanted to become a police officer. In fact, in his Notre Dame High School yearbook it lists among his

aspirations, to be a state trooper. He began his studies at Roger Williams College in

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1987 and almost left school early to begin his career in law enforcement. He, however, showed good judgment and finished school receiving his degree in Criminal Justice. Upon graduation he began his career as a police officer with the Ansonia Police Department and after a few years joined the East Haven Police Department. His career as a peace officer has been distinguished. He has received the following awards and citations: 1. Two Unit Citations from the Department of Public Safety, East Haven Police for his work with the Statewide Narcotics Task Force in 1999; 2. Letter of Recognition, dated September 3, 2003; 3. Letter of Recognition, dated July 31, 2004; 4. Two Unit Citations, dated July 31, 2004; Unit Citation, dated July 28, 2005; 5. Medal of Merit, dated July 28, 2005; Unit Citation, dated July 31, 2005; 6. the Rotary Club Annual Public Safety Award, dated 2006 for Outstanding and Dedicated Service; 7. an Official Citation from the General Assembly of the State of Connecticut, dated June 29, 2006; 8. Commendation Medal, dated July 28, 2006; Medal of Honor, dated July 28, 2006; 9. New England Association of Chiefs of Police Award in Recognition of Outstanding Valor in the Highest Tradition of the Police Services, dated September 8, 2006; 10. The Courage of Connecticut Law Enforcement Oscar, dated November 9, 2006; 11. Official Citation from the Office of the Attorney General, dated November 29, 2006;

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12. an Official Statement from Her Excellency M. Jodi Rell, Governor in recognition of his receiving the Connecticut Medal of Bravery; 13. an award In Recognition of Bravery and Commitment to Law Enforcement, dated September 27, 2006; 14. an Official Citation from the General Assembly of the State of Connecticut, dated June 20, 2008; 15. the East Haven Rotary Club Annual Public Safety Award, dated 2008 for Outstanding and Dedicated Service; 16. Letter of Recognition, dated July 24, 2008; 17. the Medal of Honor, dated July 24, 2008; and 18. The Courage of Connecticut Law Enforcement Oscar, dated November 10, 2008. From the day he decided to become a police officer, John committed himself to serving his community with honor. Lance Helms, retired East Haven Police Officer and current investigator with the Town of Hamden Police Department, says of John, I have known Sergeant Miller be a dedicated Police Officer to the citizens he took an oath to protect. He is an inspiration to the younger officers under his command and away lead by example. Bryan Kelly, also formerly of the East Haven Police Department and currently of the Hamden Police Department, says, The lessons I learned from Sergeant Miller enabled me and other police officers to better serve the community. John OConnor, a former New Haven Police Officer and the former United States Marshal, adds, Johns indictment and subsequent guilty plea astounded those of us who knew him, and knew

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how much he loved his chosen profession. How out of character it was for a man who theretofore served his community with honor and integrity. Two events dramatically changed his perspective about his job. On March 8, 2008 he was involved in his second fatal shooting. At that moment (though at that time he could not admit it to himself) he no longer wanted to be a police officer. On September 21, 20121 (and probably January 24, 20122) he knew he would never be a police officer again. When the realization set in that he would no longer be a police officer, his life could have gone in several directions. He could have wallowed in self-pity and just resigned himself to his fate. John did not do this. He proactivity began to pick up the pieces and continue to be a positive influence on those around him. Family has always been most important thing his life. His wife, Lisa and his boys, Ryan and Justin are center of his universe. Although he knew he would never be a police officer he chose the path of trying to make the lives of other police officers better. As early as 2006, Mr. Miller began speaking at conferences through the American Federation of State, County and Municipal Employees (AFSCME). At these conferences he spoke to fellow officers about shootings and the need to seek assistance. James Rascati, LCSW met John in 2006 at an AFSCME Conference and says of him, Over the past few years Mr. Miller has always made himself available to me in my work with other police departments and their officers, especially when they have had to fire their weapon. He has openly and honestly shared how therapy has helped him regarding his

1 2

The date of his guilty plea. The date of his arrest.

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PTSD. His willingness to do so has probably helped many officers seek appropriate help whenever necessary. John currently is employed as Director of Organizing and Field Services for AFSCME Council 15, Connecticut Council of Police. Through this position he is

responsible for internal and external organizing, representing sixty local police departments and recruiting those departments that are not a part of the organization to become part of it. He attends officers workmans compensation hearings and informal hearings as an officers union representative. John also responds to traumatic incidents involving officers meeting with the affected officers and their families to explain what theyre going through and to provide comfort. Eric Brown, in-house attorney for Counsel 15, recalls, I had been part of several presentations to officers from Connecticut where John described the physical, mental, physiological, and emotional aftermaths of those shootings. His insights and his

thoughtfulness regarding those incidents were reassuring for officers who might someday face the same difficult situations that John faced the days of his shootings. Specifically, he responded to Newtown, Connecticut following the tragic shootings at Sandy Hook Elementary School in December 2012 and recalled, Those guys were numb. This is another example of how John continues to be appositive influence on those round him. John recently applied for a staff representative position to negotiate grievances for AFSCME, for which he interviewed for on December 13, 2013. He was not hired for that position, but is eager to continue helping police officers in his current capacity. John continues with the therapy he began in 2011 with Dr. Kirschner.

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John continues to value his family above all else. He and Lisa met and started dating while they were students at Roger Williams College in Rhode Island. John and Lisa were married on October 5, 1996 and have two beautiful sons. Since they have been married, there have been a series of dramatic and traumatic events in their lives culminating on January 24, 2012 when John was arrested at the East Haven Police Department by the FBI. On April 21, 1999 Lisas mother died suddenly of a brain aneurism, at age forty-seven. The Millers had seen her on Easter Sunday and she died the following Thursday. In 2011, Johns mother, Gail, died of colon cancer. She did not confide in anyone the severity of her medical diagnosis and she worked up to the day she passed away. John only found out about her condition when his older brothers friend saw her exiting the Griffin Hospitals cancer center and told his brother. John was also involved in three fatal shootings. On March 14, 2006 and March 8, 2008 he discharged his firearm in the line of duty and on both occasions took a human life. On April 3, 2010 John shot and killed a pit bull in the line of duty. Through it all, the Millers have remained a strong family unit. John, Lisa, Ryan and Justin do everything together. They work on school projects and homework together. They take family vacations together. They go to every hockey game and baseball game together. In fact, while on pretrial release, Johns one and only concern was that he be able to coach his sons hockey games and baseball games. He needed to continue to be involved in his sons lives and

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continue to contribute to the community.

Although the hockey and baseball

leagues knew of Johns arrest and subsequent conviction, they still allowed him to coach, teach and guide their children. This speaks volumes as how Johns community regards him. Frank Perry, a member of the Orange, CT Little League Board of Directors says, In all cases his leadership both on and off the field has gained him the respect and admiration of the league, parents and the children, including my son Alexander. He is a very important part of the success of our league through his mentoring of children on the field as well as volunteering in the snack bars and with fundraising. Being a dad to Ryan can be challenging. Ryans medical condition is a constant cause for concern and John and Lisa are always there for him. Lisa sums it up best when she says, Ive always told them we are a team and help each other. They do chores for me, helpful things, trash, dishes, folding towels, etc. Little things, but its helpful. Justin, likewise, adds, in a letter written to John, Dear Dad, You are the best dad in the hole world and the best coach. When Im having trouble with my homework and your always right there to help me. When Im feeling sad you are always right there to cheer me up. You are the best dad in the world. One of the more difficult moments since his arrest was reading in the New Haven Register that his codefendants were labeled, Millers Boys. This phrase has been very special to him as he, and everyone close to him, knows that Millers Boys are Ryan and Justin. Every friend, family member, and

teammate knows that Ryan and Justin are Millers Boys. They have been called

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that since as long as anyone can remember. At first John was angry that anyone would use such a special phrase in association with something so intrinsically wrong. He then began to realize that there was more to it than that. He realized that he could not separate being a cop and a father. When John was arrested he came to a fork in the road. He could have blamed others for his situation. He could have spent time trying to figure out a way to beat the case. Instead he assessed the situation and decided that he needed to take steps to ensure that he could continue to be the husband, father, friend and coach he had always been. He got a job, continued his counseling, kept coaching his sons, continued helping other officers and continued his community involvement. Johns father-in-law, Raymond DeVincent, puts it best, I, myself, can attest that sometimes lifes realities and circumstances challenge us. They

challenge our perseverance and our character, but there is no greater success than to make it through to the other side with your self intact, maybe with a few more bumps and bruises to show for it, but intact.


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III. MR. MILLERS SUBSTANTIAL ASSISTANCE TO AUTHORITIES WARRANTS A DOWNWARD DEPARTURE PURSUANT TO SECTION 5K1.1 The government has provided the Court with information that Mr. Miller has provided substantial assistance to the government in the investigation and prosecution of other persons who have committed offenses. As such, Mr. Miller moves the Court to depart downward from the guidelines. As the Court can see from the governments 5K letter, Mr. Miller has provided significant and useful assistance. He has been truthful, complete and reliable in his assistance. The nature and extent is fully explained in the 5k letter and under seal. Mr. Miller risked injury to himself and his family. His assistance has been timely. Oftentimes, federal defendants stand before the Court seeking a 5k downward departure. For many of these people, cooperating with the government was an extremely difficult decision. For John this decision has been even more difficult in that he had

aspired to be a police officer his whole life, had served with these officers for many years and was now cooperating against many of them. Among police officers there has always been a code of silence that exists, and yet John decided to do the right thing, knowing that he would be ostracized not just by those he was cooperating against, but the entire police department and many other law enforcement officers would look on him as a rat. When a police officer agrees to cooperate with the investigation and prosecution of other officers who have broken the law, he deserves this highest consideration possible,


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as to do otherwise would be to disregard the unique nature of his cooperation and his circumstances as a law enforcement officer.


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Mental and emotional conditions may be relevant in determining whether a departure is warranted, if such conditions, individually or in combination with other offender characteristics, are present to an unusual degree and distinguish the case from the typical cases covered by the guidelines. U.S. v. Lara, 905 F.2d 599, 603 (2d Cir 1990). As fully described in the PSR, John was involved in two shootings that resulted in the loss of human life. As a result, John was suffering from Post-Traumatic Stress Disorder (PTSD) (put this in a footnote, that it was later officially diagnosed by Dr. Mark Kirschner of Behavioral Health Consultants of Hamden and Guilford.) If fact, Dr. Kirschner, after working with defendant, stated that he would never have authorized John to go back to work as a police officer and opined that he should have never gone back after the second shooting. Law enforcement does not publish statistics regarding officer involved shootings, but several private, public interest groups estimated that there were approximately 607 police shooting that resulted in a fatality in. Although it is an inexact paradigm, the point is clear. If the number of 607 is fairly consistent (and it may not be) from March 2006 until March of 2008, there were approximately 1200 officer-involved fatalities during an arrest. John Miller was involved in two of them. It is extraordinary. The effects on John have been clear and profound.


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In this case there are mental and emotional conditions which are present to an extraordinary degree, akin to any abuse an individual can accrue over a lifetime. In this case one can see the lack of protocol within the East Haven Police Department as abuse. Mr. Miller advised that apart from meeting with an EAP representative before ending his shift on the night of the shooting, he received no formal treatment or counseling of any kind. He stated that the EAP (Employee Assistance Program) counselor he met with that night told the group of officers to expect to feel certain emotions as time passed. He recalled that those things she told them to anticipate happened, and as a result, he felt he was normal. He reported that when it was time for him to return to work, Police Chief, Joseph Gallo, told him, Youre gonna be on the desk. When Mr. Miller protested, the Chief allowed him to return to street patrol on his normal, 4 p.m. to midnight shift.3 Mr. Miller reported that following this second shooting, he did not meet with EAP. He stated that Chief Gallo told him that he was not allowed to return to work until he met with a professional. Mr. Miller stated he complied and I met with some kid on Orange Street (in New Haven) twice. Hes asking me how Im doing and I bullshit him and told him everything is fine. I was back to work in two weeks. Mr. Miller reported that he was transferred from his patrol sergeant assignment to a supervisory position in the detective bureau, but with no restrictions. He recalled that while he was in his new position he once responded to a stolen car case (and found the stolen vehicle) and a bank robbery case. He stated that he worked with the detective bureau for approximately three to four months before telling Chief Gallo that he needed to return to his normal position and was permitted to do so.4 John was allowed to return to work without treatment. He dealt with his feelings like a good Irish cop, he suppressed them and the East Haven Police Department fostered this neglect, this abuse. Abuse alone is not sufficient to warrant a departure. There is a causation

requirement, and thus the defendant must show that the history of abuse contributed to (his) commission of the offense. U.S. v. Brady. 417 F.3d 326, 334 (2d Cir. 2005).

3 4

See PSR at paragraph 50. See PSR at paragraph 52


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After suffering this neglect, John was a different person, and therefore a different officer. After the second shooting, I became angry. Numb. I always worked because I was afraid of something happening without me being there. I was worried about my guys, especially with respect to pursuits cause I know bad things can happen at the end of pursuits. This directly affected how he dealt with members of the community, suspects (especially in pursuit situations) and those he supervised. He became a more aggressive cop. Later while engaging in individual psychotherapy with Dr. Mark Kirschner, John was diagnosed with PTSD. Based on the extraordinary mental health and emotional conditions of Mr. Miller, its causation of the offense, a downward departure is warranted.


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In 2010, the Sentencing Commission amended section 5H1.1 to provide that physical condition and drug and alcohol dependence may be relevant in determining whether a departure is warranted if the characteristic is present to an unusual degree and distinguishes the case from typical cases covered by the guidelines.5 Drug or alcohol dependence or abuse is not a reason for imposing a sentence below the guidelines.6 However, an effort to end drug dependence may be. In U.S. v. Maier, 975 F.2d 944 (2d Cir. 1992) the Second Circuit upheld a downward departure from a range of 51-63 months to a sentence of probation based on a narcotics defendants post-arrest, presentence efforts to conquer her addiction to heroin. The Court held that awareness of ones drug dependence and the demonstrated willingness to act to achieve rehabilitation, thereby benefiting the individual and society, is a reason for departure. Although drug rehabilitation efforts may support a departure, the Second Circuit has repeatedly emphasized that rehabilitation programs, which are easily entered but difficult to sustain, cannot be permitted to become an automatic ground for obtaining a downward departure. Maier, 975 F.2d at 948; see also U.S. v. Williams, 37 F.3d 83, 86 (2d Cir, 1994). Whether a defendants efforts are sufficiently extraordinary requires a refined assessment of many facts bearing on the outcome, U.S. v. Bryson, 163 F.3d 742, 747 (2d Cir. 1998).

5 6

Appendix C, Amendment 739, effective November 1, 2010 Section 5H1.4


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Although these sections and cases deal with extraordinary drug and alcohol treatment, a direct analogy can be drawn to Mr. Millers extraordinary mental health treatment. The East Haven Police Department neither required nor provided any meaningful treatment for John. It was very difficult to admit he needed treatment and any treatment received was done of his own accord. John came to realize that he needed help and got it for himself. For a police officer raised to believe that officers were not supposed to be soft or need treatment of any kind, coupled with the lack of any mental health guidance from his employer makes the fact that John sought treatment extraordinary. It is worth noting as well that when Johns mother, Gail, was diagnosed with cancer, she did not tell her children. She chose to deal with it internally and not burden her children with her pain. John was brought up in a family where they did not discuss their feelings, and even coming from that background, he confided in others to help himself and his family.


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If the Court agrees with the defendants calculation of the applicable guideline range of 12-18 months, he is ineligible for a sentence of probation pursuant to Section 5B1.1 (a)(1), as the 12-18 months range in within Zone C of the Sentencing Table. The Court can depart downward or find an applicable guideline range within Zone A of the Guideline Table and impose a sentence of probation. Alternatively, the Court can depart downward or find an applicable guideline range within Zone B of the Guideline Table and impose a sentence of probation combined with a term of community confinement or home detention, pursuant to Section 5B1.1(a)(2).


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John Miller stands before the Court, having been convicted of Conspiracy Count Ten of the Indictment charging him with Deprivation of Rights: Unreasonable Force, in violation of 18 U.S.C. Section 242. The maximum penalty for these offenses is 10 years in prison and three years of supervised release, a $250,000 fine and a $100 special assessment. The maximum penalty for these offenses is 10 years in prison and five years of supervised release. John and his family request that this Court impose a sentence of probation. Such a sentence would reflect the seriousness of the offense; promote respect for the law, and to provide just punishment for the offense. Furthermore, said sentence would afford

adequate deterrence to criminal conduct and protect the public from this type of criminal conduct. Such a sentence would also be sufficient, but not greater than necessary, to provide just punishment


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CONCLUSION Counsel requests that the Court sentence John in accordance with the plea

agreement and prevailing law.


By, /s/ Donald J. Cretella, Jr._____ Donald J. Cretella, Jr. Zingaro & Cretella, LLC 1087 Broad Street Bridgeport CT 06604 Fed Bar #CT 22055 (203) 367-0442


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CERTIFICATION I hereby certify that on February 6, 2014, a copy of foregoing was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the Courts electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Courts CM/ECF System.

By__/s/_Donald J. Cretella, Jr._____ Donald J. Cretella, Jr.