Mafia-linked inmate pleads guilty to escape in Ky.

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Associated Press

Posted on July 23, 2012 at 12:01 PM

Updated Monday, Jul 23 at 12:30 PM

LEXINGTON, Ky. (AP) — An inmate with Mafia ties pleaded guilty Monday to escaping from federal custody, but plans to appeal based on a heart condition and the fact that his initial trial on the charge ended in a mistrial.

Derek A. Capozzi, convicted in a gangster-related killing in Massachusetts, faces up to five years in prison when he's sentenced Sept. 4 in federal court in Lexington, Ky.

During a brief hearing, Capozzi admitted to kicking out the doors of a jail transport van in April 2010 while being taken to London, Ky., to testify at a trial. Capozzi has claimed he escaped to seek medical care. U.S. District Judge Joseph M. Hood rejected the claim and barred its use in any trial.

Capozzi's attorney, Steven Milner of Lexington, said the U.S. 6th Circuit Court of Appeals will be asked to reverse Hood's decisions.

Capozzi, dressed in a gray jail uniform, white T-shirt, shackles and orange flip-flop shoes, said he kicked out the back of a van taking him from the Grayson County Jail in western Kentucky in April 2010 because he can't get the medical care he needs while behind bars.

Prosecutors said when he was on the lam for several days, he didn't seek any treatment. And when he was captured in a Dairy Queen parking lot in central Kentucky, marshals said, he had a different excuse for escape: "I'm pulling 53 years."

"You were in the custody of the Attorney General, is that correct?" Hood asked.

"That's right," Capozzi answered, noting that he escaped. "Yes, sir."

During a lighter moment in the 15-minute hearing, Capozzi referred to his age as "39-1/2" in response to a judge's question. Hood was amused.

"When you get to be my age, you won't worry about the half," said Hood, who was born in 1942. "You'll just say 39."

Capozzi is in prison for his role in the 1996 killing and dismemberment of 19-year-old Aislin Silva. She was ordered killed by the leader of the Mafia-affiliated gang that Capozzi belonged to, so she wouldn't be able to cooperate with federal investigators, prosecutors said.

Capozzi claimed in court documents that several doctors have determined he needs to have his heart repaired after he was stabbed in the chest in 2008 while in a federal prison in California.

In rejecting that claim as a defense in 2010, Hood noted that Capozzi didn't face an imminent threat to his life and didn't seek immediate help for his heart condition.

"The fact of his involuntary confinement does not explain why he did not take up all reasonable, legal alternatives that he had prior to violating the law by effecting an escape attempt," Hood wrote.

Capozzi also plans to appeal a decision to retry him after his first trial on the escape charge in 2010 ended in a mistrial. During those proceedings, Capozzi argued that he wasn't in federal custody at the time of his escape and couldn't face a federal charge because he was being transported by Grayson County jailers. Capozzi also claims the prohibition against being tried twice for the same crime bars a retrial.

Hood said the concept of "double jeopardy" doesn't apply here because both prosecutors and defense attorneys agreed the end the proceeding when jurors indicated they could not reach a verdict.

"At the time of the declaration of mistrial, the court knew only that the defendant could provide the court with no viable alternative," Hood wrote.

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Follow Associated Press reporter Brett Barrouquere on Twitter: http://twitter.com/BBarrouquereAP

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