United States District Court, E.D. North Carolina, Western Division
MALCOLM J. HOWARD SENIOR UNITED STATES DISTRICT JUDGE.
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
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].
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].
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.
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
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. [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].
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
Id. at 24.
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.
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.
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
was in solitary confinement for five months, until on or
about May 8, 2017. [DE #39 at 17-19; DE #42 at 3].
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.
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].
Post-Indictment and Pre-Arraignment
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.
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 ...