Central Office Administrative Remedy Appeal

FCC Terre Haute - Inmate Bulletin - Three Inmates Sentenced in Federal Court

How Pigs Kiss

This is an official B.O.P. memo issued by the Warden. If the insanity of it, not to mention the inhumanity of it, isn't obvious to you, then maybe you need to spend a little time away from those you love in an environment where nobody cares about you so you can maybe come to understand the meaning of humiliation.

This "new procedure" not only treats visitors no better than the prisoners they dare to care enough about to visit, but it also fails to account for the well-known fact that the vast majority of all "contraband" (especially drugs) is brought in by the prison staff, not visitors. But "Correctional" unions have long ago DEMANDED (and won) the "right" for prison staff to never be subjected to such "humiliating" and "demeaning" searches (unless they come under suspicion warranted by substantial evidence). And this "new procedure" amounts to no less than a publically executed body cavity search that no prison staff would ever be forced to submit to!

And yet, it is perfectly "acceptable" to expect visitors to submit to such abuse. And then people act surprised when prisoners unanimously fail to respect the "authority of the state". This is what that "authority" is to the prisoners and their visitors: Hypocritical violators of basic human dignity in the name of their own self-righteous moral superiority; or, just "pigs" for short.

The Grinch Who Stole A Little More Than Just Christmas...

Ken,

You have piqued my curiosity with your choice of Xmas card. Did you realize the implication that Dr. Seuss' "Grinch That Stole Christmas" has in my case? Or, was it just a random choice? Like the Grinch, I had descended upon that family in Idaho out of sheer malice against the society that had rejected and tormented me ("unjustly" in my mind). But then I had a profound change of heart at the last second, before destroying everything (by killing the little girl as I had intended), and after I had gotten away free and clear I decided to return her (and myself) instead. But of course rather than being welcomed joyously upon my return I was imprisoned and condemned to death. (So much for happy endings.)

The parallels actually run much deeper than I can even begin to explain in this short note, so I'm very curious if you were aware of this correlation and that's why I am writing you back now (so I can ask!). In any regard, thanks for the well wishes, and I send you the same!

Merry Xmas! Jet Duncan

Office of the General Counsel (Yeah, Right)

Here is a letter that I submitted with my "child porn" appeal to the B.O.P. Central Office in Washington D.C. after it was rejected for reasons that, as usual, made no sense and even directly contradicted official B.O.P. policies (which you would think the Central B.O.P. Office would know):

And here is a copy of the actual appeal that I filed (and that got rejected):

After resubmitting my appeal the second time, along with the letter at the top, it was accepted (for processing) even though I made no changes. I basically had to tell them how to do their job (according to policy), which I seem to end up doing a lot, at all levels of the appeal process, from institution to regional and now even the Central Office. Go figure.

(To tell you the truth, I don't really think they don't know how to do their job, or what their own policies say. Instead, I think that they deliberately "pretend" not to know, and they think this feigned ignorance is actually part of their job. It's just "how the system works". Yeah. Right.)

DHO Report & Response

On January 26^th of this year (2015) I got a letter from my girlfriend that included some pictures of a famous French child model named Thylane Blondeau. For whatever reason my girlfriend sent me these pictures, it was not because I had asked her to. Thylane is famous for her «sexy» pictures, but none of her pictures are pornographic or against prison policy. The letter I received was opened an inspected by the mail room, and the pictures it contained were prominent and unconcealed in anyway. So when I received these pictures I had no reason to believe I was not permitted to have them. They were literally issued to me by the prison through the mail.

Then, on February 13^th (18 days later) a guard found one of these pictures of Thylane in a folder of drawing materials (I had drawn one of the pictures, of Thylane's face only, as a gift for my girlfriend because she said she liked the model's expression in the pictures), and he thought it «appears to be child pornography». 

Two months later there was a hearing by the «DHO» (Disciplinary Hearing Officer). I presented evidence (copies of Federal laws and B.O.P. policies) that showed that the picture was «perfectly legal» (i.e. did not violate any prison policies or Federal laws), and I even provided a copy of the letter that the picture came in (that showed clear references to the picture and explained why it was sent) to show that the picture had in fact been issued to me «through regular channels».

The DHO ignored the evidence (Federal laws and B.O.P. policies) and declared that the picture had been issued to me «by human error», for which I was responsible for. He found me guilty and imposed an unusually harsh sanction.

The cover of his report confirms the dates and times and other administrative information:

 

The DHO included a copy of the written statement that I provided him at the hearing in his official report. In this statement I clearly reference and explain all the evidence I presented, including a copy of the letter that accompanied the picture proving it was authorized and issued to me.

I also gave the DHO a supplementary statement concerning any supposed «threat» to the «orderly operation of the institution» hoping to thwart any accusations in that regard. The DHO included this in his report also.

 

 

Under «findings» in his report, the DHO fails to mention the hard evidence I presented him, and proceeds to completely distort and misconstrue Federal laws (by inventing his own definition for «child pornography» from dictionary definitions instead of using the Federal law definition that I gave him at the hearing) and B.O.P. policies (claiming that because I am a sex offender that special restrictions apply to me).

But, B.O.P. policy, the same «Program Statement» that the DHO references in his report as evidence against me, says very plainly that special restrictions for sex offenders can only be applied at SOMP (Sex Offender Management Program) institutions, and then only after an evaluation by specially trained psychology staff.

Of course, I am not at an SOMP prison, and no «special restrictions» have ever been set for me. So, I wrote a detailed response/appeal for the DHO's B.S... 

This appeal was rejected by the Regional Office because it was too long. So I shortened it to one page and resubmitted it. Please follow the "Child Porn" Update posts on 5NChronicles to find out what happens, and for more details about this incident, hearing, and appeal.

Request For Administrative Remedy

The following facts were presented in writing and verbally to the DHO at the DHO hearing for I/M Duncan on April 15, 2015:

  ¤ 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