¤ Program Statements generally
authorize inmates to receive and retain letters with enclosed
pictures that are inspected for compliance with B.O.P. POLICIES
(P5800.16 «Mail Management Manual» - Exhibit D)*
¤ The confiscated pictures in this
case were issued to I/M Duncan by authorized staff in a letter that
was opened and inspected by the mail room on 1/26/2016 (see redacted
cop of letter with highlighted clear references to the confiscated
pictures – Exhibit C)*
¤ The
confiscated pictures do no depict nudity, and are not sexually
explicit, as specifically defined by B.O.P. policies (P5266.15
«Incoming Publications» § 540.72 (b) «Definitions» for
«Statutory Restrictions»)
¤ The confiscated pictures in this
care are patently NOT «child pornography» or «sexually
explicit» according to Federal Law definition (18 USC 2256 (8) –
Exhibit B)*
¤ Only the Warden (or Acting Warden)
may restrict mail that is potentially detrimental to the orderly
operation of the institution (P5265.14 «Correspondence» § 540.14
(d) and P5266.14 «Incoming Publications» § 540.71 (b)).
¤ The Warden must advise the inmate in
writing when mail is restricted, and provide specific reasons for the
restriction (ibid.). (Exhibit A)*
¤ I/M Duncan has never received notice
of his mail being restricted for any reason for the Warden or any
other official.
¤ I/M Duncan voluntarily submitted all
other pictures of «partially nude» (but not «sexually
explicit») children that were issued to him in the mail as evidence
of the past authorization of such pictures (Exhibit E)*.
* All Exhibits marked above were
presented to the DHO, along with a two-page statement, prior to the
hearing on April 15.
After the above facts were explained to
the DHO at the hearing, he said: «It doesn't matter what [the law
says ... I say that] this is definitely child pornography.» He then
found me guilty of «Possession of anything not authorized for
retention or receipt by the inmate, and not issued to him through
regular channels.» (305) contrary to the facts and his duty to obey
B.O.P. directives. The DHO deliberately and flagrantly disregarded
numerous directives, and the U.S. Constitution, in order to find me
guilty and illegally punish me because of my «crimes against
children».
The following provisions of the
disciplinary policy were either ignored or deliberately contradicted
by the DHO at the hearing for inmate Duncan on April 15, 2015:
¤ §541.2, Part 3 (c) «Staff control
inmate behavior in an impartial and consistent manner».
The DHO was neither impartial or
consistent. He made numerous references during the hearing to my
«crimes against children», which I took reasonably to be the cause
of his bias. His disregard for laws and policies in light of the
facts is clear evidence of bias. His findings and punishment were
inconsistent with the evidentuarily established pattern of routinely
authorized pictures of children I have received via regular channels
(mail) in the past. In fact, the DHO referred to this evidence
(Exhibit E) during the hearing as «proof» of my guilt, even though
I had voluntarily submitted it for review after I was accussed of
having «child pornography», as evidence that established a
consistent pattern of authorizations. The DHO ignored this
consistency, and acted inconsistent with past «staff control» of
«inmate behavior».
¤ §541.8 (b) «... The DHO will be an
impartial decision maker...» (see above)
¤ §541.8 (f) «... The DHO will
consider all evidence presented during the hearing. The DHO's
decision will be based on at least some facts and, if there is
conflicting evidence, on the greater weight of the evidence...»
The DHO ignored the facts and evidence.
There was no conflicting evidence except what existed in the mind of
the DHO (i.e. bias).
¤ §541.2, Part 3 (d) «Disciplinary
action may not be capricious or retaliatory.»
The DHO said during the hearing, «It
doesn't matter what that says...» after I had just read him the
Federal Law definition of «child pornography». This is a capricious
disregard for the law.
Numerous other directives, laws, and
prisoner rights were also ignored and contradicted by the DHO by his
actions during this hearing. The DHO's abuse of authority is clear
and palpable, but my own personal principles prevent me from even
suggesting what his sanctions should be. I only hope that he somehow
is compelled to understand that the consequences of his actions (for
everyone) are far more serious than he presently seems to imagine.
I, Joseph E. Duncan III, swear that the
above is the truth as I know it, and that I have made no attempt
herein to either deceive or mislead anyone.
Joseph E. Duncan III
April 27, 2015
