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United States v. Bostic

United States District Court, E.D. North Carolina, Western Division

April 12, 2018

JAMES BOSTIC, Defendant.



         This matter is before the court on the appeal under Local Criminal Rule of Procedure 58.1(b) by defendant of the conviction and sentence imposed by United States Magistrate Judge Kimberly A. Swank on July 14, 2017, [DE #32]. Defendant timely filed a pro se notice of appeal, [DE #31, #34]. Defendant filed an appeal memorandum by and through counsel, [DE #42], and the government responded, [DE #45]. This matter is ripe for adjudication.


         On March 28, 2017, defendant was indicted for knowingly possessing a prohibited object, to wit: a cell phone, at the Federal Correctional Institution, (“FCI”) Butner, North Carolina, in violation of 18 U.S.C. §§ 1791(a)(2) and 1791(b)(4). [DE #1]. On July 11, 2017, defense counsel for defendant filed an unopposed motion for sentencing hearing at the time of arraignment before United States Magistrate Judge Kimberly A. Swank. [DE #27]. On July 14, 2017, defendant filed a consent to proceed before the magistrate judge for arraignment, [DE #29], and for sentencing, [DE #30]. On that same day, defendant was represented by counsel at the arraignment and sentencing. Defendant does not contest the authority of the magistrate judge. [DE #36 at 4].

         Defendant was sentenced to a term of imprisonment of 3 months, consecutive to any sentence he was then serving. [DE #32 at 2]. On July 26, 2017, defendant filed a pro se notice of appeal. [DE #31 and #34]. Trial counsel filed a motion to withdraw, which was granted on September 21, 2017, [DE #37]. On September 26, 2017, counsel for defendant, Rudolph Ashton, filed a Notice of Appearance, [DE #38]. The official transcript of arraignment and sentencing was filed on November 17, 2017, [DE #39]. Defendant requested and was granted an extension of time and timely filed a memorandum under seal on December 28, 2017, [DE #42]. The government filed a response on January 18, 2018, [DE #45].


         A. Pre-Indictment

         Defendant pled guilty to conspiracy to distribute and possess with intent to distribute cocaine and was sentenced to 210 months custody and five years of supervised release in the United States District Court of Maryland on November 5, 2010. [DE #12 at 4]. On October 13, 2016, his sentence was reduced to 168 months. Id. Defendant's projected release date is May 20, 2022. Id.

         On December 8, 2016, at approximately 1:20 a.m., while incarcerated at FCI Butner for that offense, D.M. Kornegay ordered defendant to rise from his bunk and submit to a pat search during an unannounced mass search of inmate housing units. [DE #42 at 22-23]. D.M. Kornegay observed defendant acting in a nervous manner and moving his hands under the blanket. Id. D.M. Kornegay again ordered defendant to stand, and defendant complied. Id. D.M. Kornegay observed defendant still attempted to conceal what was in his hands, and D.M. Kornegay then ordered defendant to release what was in his hands. Defendant gave a cell phone to D.M. Kornegay and was escorted out of his housing unit without incident. Id.

         On the same day, D.M. Kornegay generated an incident report at 3:30 a.m., charging defendant with Possession, Manufacture, or Introduction of a Hazardous Tool; Cellular Phone, in violation of Prohibited Act Code 108.[1] [DE #42 at 3, 22-23]. D.M. Kornegay's incident report also stated the FCI Lieutenant's Office was notified. Id. at 22-23. Defendant then appeared for administrative disciplinary proceedings within the prison. [DE #39 at 14-15].

         One page is included in defendant's memorandum of appeal from the FCI Lieutenant's Incident Report, stating that the investigation of defendant began at 7:52 a.m. on the same day of the offense, December 8, 2016. [DE #42 at 24]. Defendant was advised of his right to remain silent at 7:53 a.m. on the same day and advised “[y]our [s]ilence [m]ay [b]e [u]sed [t]o [d]raw [a]n [a]dverse [i]nference [a]gainst [y]ou [a]t [a]ny [s]tage [o]f [t]he [d]iscipline [p]rocess. Your [s]ilence [a]lone [m]ay [n]ot [b]e [u]sed [t]o [s]upport [a] [f]inding [t[hat [y]ou [h]ave [c]ommitted [a] [p]rohibited [a]ct.” Id. Defendant was provided written notice of the charge when the incident report was delivered to him at 7:54 a.m. Id. at 22-24. Defendant stated he understood his rights and did not offer a statement. Id. at 24. The FCI Lieutenant kept defendant in the Special Housing Unit and referred his report to the Unit Discipline Committee (“UDC”) for further review. Id. at 24. The FCI Lieutenant's incident report stated the investigation was completed at 8:45 a.m.[2] Id. at 24.

         On December 15, 2016, the UDC issued a report, which provided under the section “Comments of Inmate to Committee Regarding Above Incident” that “[i]nmate Bostic stated he understood his rights. When asked if the smart phone was in his possession, he stated ‘yes.'” Id. at 22-23. The UDC referred the charge to the Discipline Hearing Officer, (“DHO”), “due to its severity.” Id. The UDC recommended loss of good conduct time, loss of telephone privileges, and/or commissary privileges. This report was signed by the UDC Chairman at 2:32 p.m. Id.

         Also on December 15, 2016, defendant was advised of his Inmate Rights at Discipline Hearing and Notice of next available Discipline Hearing. Id. at 3, 25-26. Defendant signed both forms and advised he did not wish to have a staff representative or witnesses at the DHO hearing. Id. at 26.

         On January 5, 2017, the discipline hearing was held before DHO Metzger. Id. at 27. On February 6, 2017, DHO Metzger issued a report based on the hearing. Id. at 27-29. DHO Metzger read Section 1 of the incident report to defendant and asked defendant if it were true. Id. at 27. Defendant said the report was true and admitted he was guilty. Id. Defendant stated he found the cellphone while walking in the track in outside recreation a couple of days prior to the incident and used it a few times to call his family about personal issues. Id. DHO Metzger found defendant guilty of possessing a cell phone, Prohibited Act 108, based upon the eye-witness account of D.M. Kornegay and defendant's own admission at the DHO hearing. Id. at 28. DHO Metzger sanctioned defendant by disallowing 40 days of good conduct time; placing defendant in 45 days disciplinary segregation; denying commissary for 4 months; denying telephone privileges for 12 months; and denying visitation for 12 months. Id. at 29; [DE #39 at 17-18].

         Defendant was in solitary confinement for five months, until on or about May 8, 2017. [DE #39 at 17-19; DE #42 at 3].

         On February 18, 2017, defendant filed an appeal of the DHO's imposition of sanctions. [DE #42 at 3, 30]. This appeal was received on March 14, 2017. Id. The appeal being defective in form, defendant refiled the appeal, which was received on April 21, 2017. Id. at 30-34.

         On March 2, 2017, defendant was provided an Advice of Rights at his interrogation. Id. at 35-36. He refused to make a statement. Id. During the period of March 2, 2017 to March 7, 2017, a BOP investigative report was compiled with information about defendant and three other inmates, including the fact that defendant had admitted to possessing the cell phone to both the UDC and DHO. Id. at 37-43. All four inmates were referred to the United States Attorney's Office in the Eastern District of North Carolina for prosecution. Id. at 43. The indictment was issued on March 28, 2017. [DE #1].

         B. Post-Indictment and Pre-Arraignment

         On April 21, 2017, the Regional Administrative Remedy Appeal filed initially on February 18, 2017, was denied by the Regional Director. [DE #42 at 44]. In his denial of the appeal, the Regional Director provided “[t]he discipline record indicates the incident was not referred to the FBI for possible prosecution at any level of the institution discipline process. Accordingly, no suspension of the incident report was required. The sanctions were available to the DHO for a prohibited act in the Greatest Severity category.” Id.

         On June 28, 2017, defendant appealed the decision of the Regional Director on the basis that the Regional Director incorrectly stated his matter was not referred to the FBI for possible prosecution, and in fact his indictment had issued on March 28, 2017, [DE #1, #42 at 45]. Defendant appealed on the basis that he had been questioned by staff and sanctioned prior to investigation by SIS [Special Investigative Supervisor], and that his case had been ...

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