6.John Oliver — Direct/Cross/Redirect
600 lines(Discussion at sidebar and out of the hearing of the jury:)
THE COURT: I gather we're going to --
MR. WEINREB: The warden.
THE COURT: -- Oliver at this point.
So with respect to what we had discussed, I think that a -- again, raising the level of generality, I think it will be permissible to ask if some prison programming is available to people in their cells as a result -- under the conditions of -- all right? But just that.
MR. BRUCK: Not television?
THE COURT: Not television.
MR. MELLIN: Not television?
THE COURT: No, just some level of programming.
MR. WEINREB: Can I ask that --
THE COURT: In other words, I think it's legitimate for the government to counter a suggestion that he sits in chains on a cement bed, okay? I think it's fair -- that's something that you can fairly document, but I think it should be done at a level of generality. If he can participate in programming or something --
MR. MELLIN: But he can also watch television 24 hours a day.
MR. WEINREB: If he can participate in programming in his cell?
THE COURT: Without getting into how he does it.
MR. WATKINS: Your Honor, I reiterate now that the examination is open, I think it's incumbent upon the defense to --
THE COURT: As I say, I want to look at what was said. There might be something that was said.
MS. PELLEGRINI: Your Honor, I have, in preparation for our stipulation that we had provided which the Court has now ruled it's not going to use, reviewed some of the transcripts and also some of the pleadings. And the defense had quoted the Court -- this is how I remember this -- with respect to the Court's ruling that the legal visits needed to be changed, and that the Court did, in fact, then rule that there was such a procedure as a mixed social and legal visit, and as a result of that we modified the SAMs.
THE COURT: Okay. I'm going to look at all of them. If you can give me the reference --
MS. PELLEGRINI: I have to go back up and get that.
MR. MELLIN: Your Honor, just so I don't trip over any wires, can I ask does he have available programming in his cell?
THE COURT: Prison programming.
MR. MELLIN: Okay.
THE COURT: Prison programming. The prior witness referred to that generally. But not the medium.
(In open court:)
MR. MELLIN: Your Honor, can I have just a moment?
THE COURT: Yes.
(Pause.)
MR. MELLIN: The United States calls Warden John Oliver.
JOHN OLIVER, duly sworn
COURT CLERK: State your name, spell your first and last name for the record, keep your voice up and speak into the mic.
JOHN OLIVER: Yes, sir. My name is John Oliver, J-O-H-N, O-L-I-V-E-R.
DIRECT EXAMINATION BY MR. MELLIN:
MR. MELLIN: Sir, where are you currently employed?
JOHN OLIVER: I'm currently the complex warden at FCC Florence in Florence, Colorado.
MR. MELLIN: And, Warden Oliver, when did you join the Bureau of Prisons?
JOHN OLIVER: I joined the Bureau of Prisons in 1992.
MR. MELLIN: Where did you grow up?
JOHN OLIVER: I grew up in Florence, Colorado.
MR. MELLIN: How long did you live in Florence before you moved out?
JOHN OLIVER: I moved out when I went to college. So I lived there for about 20 years prior to leaving.
MR. MELLIN: Is Florence, Colorado, in Siberia?
JOHN OLIVER: No, sir, it's not.
MR. MELLIN: Where is Florence located?
JOHN OLIVER: Florence is located approximately 45 miles south of Colorado Springs, which is also 30 miles west of Pueblo, Colorado, in an area that's in the Arkansas Valley.
MR. MELLIN: And have you seen the photograph that was shown in court, this aerial photo of ADX?
JOHN OLIVER: Yes, sir, I have.
MR. MELLIN: And did you see that last week here in court?
JOHN OLIVER: Yes, sir, I did.
MR. MELLIN: Okay. In that photo there's snow on the ground. Is that right?
JOHN OLIVER: Yes, sir, there is.
MR. MELLIN: How often does it snow in Florence, Colorado?
JOHN OLIVER: Not very often.
MR. MELLIN: How many days out of the year would you actually have snow on the ground?
JOHN OLIVER: I would expect less than ten or 15 days out of the year in Florence itself.
MR. MELLIN: Do employees who work at ADX live in Colorado Springs?
JOHN OLIVER: Yes, sir, they do.
MR. MELLIN: I want to talk to you very briefly about your background. When you joined the Bureau of Prisons, where did you go?
JOHN OLIVER: I first started with the Bureau of Prisons in 1992 as one of the first ten correctional officers hired in the complex. I started at FCI Florence, Colorado, which is a medium-security institution on the complex.
MR. MELLIN: Can you briefly describe what are the complexes that are in Florence?
JOHN OLIVER: We have the Federal Bureau of Prisons complex in Florence, but also in Fremont County we have approximately another six other, at least, state prisons within that same county.
MR. MELLIN: You mentioned there's an FCI in Florence?
JOHN OLIVER: Yes, sir.
MR. MELLIN: Okay. And again, what does that stand for?
JOHN OLIVER: The "FCI" stands for federal correctional institution.
MR. MELLIN: And what level is that?
JOHN OLIVER: That's a medium-security.
MR. MELLIN: Is there a high-security facility as well?
JOHN OLIVER: Yes, sir, there is.
MR. MELLIN: What's the name of that?
JOHN OLIVER: That's the United States penitentiary right next to the ADX.
MR. MELLIN: Okay. And then in addition to that, there's ADX?
JOHN OLIVER: Yes, sir. The ADX is a maximum-security prison on the complex.
MR. MELLIN: Okay. So you started at the FCI. Where did you go from there?
JOHN OLIVER: After I left the FCI in 1994, I was a correctional officer that activated the ADX. The ADX is the administrative maximum penitentiary.
MR. MELLIN: And when you say you activated, what do you mean by that?
JOHN OLIVER: I helped escort all of the inmates in from Marion, Illinois, as well as I developed policies and procedures for the institution.
MR. MELLIN: After that what did you do?
JOHN OLIVER: I left the ADX and went to the United States penitentiary in Lompoc, California, as an entry-level supervisor, which is called a lieutenant.
MR. MELLIN: After you went to Lompoc, where did you go?
JOHN OLIVER: I went back to the complex again, to the United States penitentiary, as a lieutenant.
MR. MELLIN: When you say you went back in, again, you're in Florence, Colorado?
JOHN OLIVER: Yes, sir. In Florence, Colorado.
MR. MELLIN: How long were you there?
JOHN OLIVER: I was there about two years.
MR. MELLIN: Where did you go after that?
JOHN OLIVER: Back to the ADX again as a lieutenant.
MR. MELLIN: Okay. At some point did you go to Terre Haute?
JOHN OLIVER: Yes, sir, I did.
MR. MELLIN: What did you do at Terre Haute?
JOHN OLIVER: In 2007 I went to Terre Haute as an associate warden.
MR. MELLIN: You saw Mr. Bezy in there last week. Is that right?
JOHN OLIVER: Yes, sir, I did.
MR. MELLIN: And did you know Mr. Bezy was the warden at Terre Haute from 2004 to 2006?
JOHN OLIVER: Yes, sir, I'm aware of that.
MR. MELLIN: After you were at Terre Haute, where did you go?
JOHN OLIVER: After I left Terre Haute as an associate warden, I went to the federal correctional complex in Coleman, Florida, as an associate warden.
MR. MELLIN: At then at some point you end up at ADX, right?
JOHN OLIVER: Yes, sir. After I left Coleman, I went back to Terre Haute as the warden at FCI Terre Haute, and then I was selected as a warden at the United States penitentiary in Florence, and then ultimately, I'm now the warden at ADX Florence.
MR. MELLIN: If there is a new inmate that comes into ADX on SAMs, how many social visits is he permitted per month?
JOHN OLIVER: An inmate at the ADX is permitted five social visits a month regardless of the SAMs or not.
MR. MELLIN: And the social visits, are they individual or can there be more than one person coming for that visit?
JOHN OLIVER: Most of the visits are individual. One adult.
MR. MELLIN: Can there be additional people that come as well?
JOHN OLIVER: Yes, there can be.
MR. MELLIN: And the five visits are per month. Is that right?
JOHN OLIVER: Yes, sir, they are.
MR. MELLIN: How many legal visits can an inmate have per month?
JOHN OLIVER: Unlimited.
MR. MELLIN: All right. Are inmates allowed to use the telephone?
JOHN OLIVER: Yes, they are.
MR. MELLIN: When they first come in on a SAMs, how many phone calls are they permitted?
JOHN OLIVER: In the H unit, or the special security unit, an inmate on Phase 1 will get two social phone calls a month of 15 minutes' duration each.
MR. MELLIN: So 30 minutes of phone calls that month?
JOHN OLIVER: Yes, sir.
MR. MELLIN: At some point during the phases, are they permitted to make more phone calls?
JOHN OLIVER: Yes, sir. In Phase 2 they're allowed to make three phone calls, three 15-minute phone calls a month.
MR. MELLIN: And then what about Phase 3?
JOHN OLIVER: Phase 3 they're allowed to make four 15-minute phone calls a month.
MR. MELLIN: Can an inmate write letters?
JOHN OLIVER: Yes, sir, they can.
MR. MELLIN: Is there any limit on the number of letters an inmate can send out?
JOHN OLIVER: No, sir, there's not.
MR. MELLIN: Is there a limit on the number of letters an inmate may receive?
JOHN OLIVER: No, sir, there's not.
MR. MELLIN: And in addition to that, can an inmate send out legal mail?
JOHN OLIVER: Yes, sir, they can.
MR. MELLIN: Is there any limit on the number of legal mailings they can make?
JOHN OLIVER: No, sir, there's not.
MR. MELLIN: Can an inmate write a book?
JOHN OLIVER: Yes, sir, they can.
MR. MELLIN: And can an inmate write or send that book to someone on his contact list?
JOHN OLIVER: Yes, sir, he can.
MR. MELLIN: Very briefly I want to talk about the H unit cells. Have you seen the H unit cells?
JOHN OLIVER: Yes, sir, I have.
MR. MELLIN: As the warden, I'm assuming you see them quite often?
JOHN OLIVER: Yes, sir, I do.
MR. MELLIN: Is there a bed in the cells?
JOHN OLIVER: Yes, sir, there is.
MR. MELLIN: Is there a desk in the cells?
JOHN OLIVER: Yes, sir, there is.
MR. MELLIN: Can inmates watch prison programming in their cells?
JOHN OLIVER: Yes, sir, they can.
MR. MELLIN: And what type of prison programming is permitted in the cells?
MR. WATKINS: Objection.
THE COURT: No, we'll leave it at that. The objection is sustained.
BY MR. MELLIN:
MR. MELLIN: Can inmates exercise in their cell?
JOHN OLIVER: Yes, sir, they can.
MR. MELLIN: Can inmates hold jobs?
JOHN OLIVER: Yes, sir, they can.
MR. MELLIN: Can an inmate in the H unit hold a job?
JOHN OLIVER: Yes, sir, they can.
MR. MELLIN: In addition to rec time that occurs outside of the cell, are there other reasons why an inmate would be outside of their cell?
JOHN OLIVER: Yes, sir, there is.
MR. MELLIN: And generally what would that be?
MR. WATKINS: Objection.
THE COURT: Overruled.
You may answer that.
JOHN OLIVER: Some of the other reasons that an inmate would be out of his cell in Phase 1, for example, would be if an inmate is pulled out of his cell for medical reasons; for visits; for a shower; to work, as we indicated earlier as an orderly; for education purposes; legal visits; social visits; you get team reviews with his unit team; to speak to a lieutenant, various reasons to come out of the cell.
BY MR. MELLIN:
MR. MELLIN: Can an inmate earn a college degree?
JOHN OLIVER: Yes, sir, they can.
MR. MELLIN: It's my understanding that everyone that is in the H unit is on some type of SAMs restriction. Is that right?
JOHN OLIVER: Yes, sir, that is correct.
MR. MELLIN: If a SAMs comes down on a particular inmate, can he remain in the H unit?
JOHN OLIVER: I'm sorry. If the SAMs is removed?
MR. MELLIN: Is removed, correct.
JOHN OLIVER: If the SAMs is removed, then the inmate is removed from the H unit.
MR. MELLIN: Where does the inmate go?
JOHN OLIVER: We will either move the inmate into our general population housing units or we'll place him into our step-down program.
MR. MELLIN: How do you make a determination where he's going to go?
JOHN OLIVER: We look at the inmate as -- how he's been acting in the institution. We use those 13 steps to take a look and see where we're going to put these inmates inside the institution.
MR. MELLIN: And can you generally describe the 13 criteria you're talking about?
JOHN OLIVER: Yes, sir. First of all, we look at the inmate's conduct while he's in ADX. We look at his ability to program. Has he been programming based off of what his unit team's recommendations were? His behavior towards inmates and other staff: Is it positive? Institutional conduct or institutional adjustment: Is the inmate keeping up with his hygiene? Cell sanitation? The reason he was placed in ADX. Why he was designated there. We also look at his criminal history. His criminal involvement since he's been there. We look at his adjustment since his incarceration. We look at the safety of staff, the safety of the inmate, the safety of other inmates, the safety of the public. And then the last one is all -- pretty much all-encompassing. The 13th is any other relevant factors that we need to consider.
MR. MELLIN: And one of those factors, does that include the notoriety of a case?
JOHN OLIVER: You know, we wrap that up in the inmate's safety or the safety of other inmates.
MR. MELLIN: Okay. And is that the overriding concern or is that just one of the things that you consider?
JOHN OLIVER: No, sir, it's just one of the things we consider.
MR. MELLIN: So if an inmate has some notoriety, does that dictate by itself where someone is going to go?
JOHN OLIVER: No, sir, it does not.
MR. MELLIN: Can inmates who originally were on SAMs who are no longer on SAMs be actually sent out of ADX?
JOHN OLIVER: Yes, sir, they can.
MR. MELLIN: And again, what criteria do you look at to make that determination?
MR. WATKINS: Objection, your Honor.
THE COURT: No, generally. You may answer it generally.
JOHN OLIVER: I look at the same criteria that we just discussed.
BY MR. MELLIN:
MR. MELLIN: Okay. And that can even apply to an inmate who had a terrorism conviction who is no longer on SAMs?
MR. WATKINS: Objection.
THE COURT: Overruled.
You may answer.
JOHN OLIVER: Yes, sir, it does.
BY MR. MELLIN:
MR. MELLIN: If an inmate does go to another facility, another U.S. penitentiary, a terrorism inmate, what are those conditions generally like?
MR. WATKINS: Objection.
THE COURT: Sustained to that.
BY MR. MELLIN:
MR. MELLIN: If an inmate has the SAMs removed, may that inmate communicate with the media?
MR. WATKINS: Objection.
THE COURT: You may answer that.
JOHN OLIVER: Yes, an inmate may communicate with the media.
BY MR. MELLIN:
MR. MELLIN: Inmates get rec time. Is that right?
JOHN OLIVER: Yes, sir, they do.
MR. MELLIN: How much rec time do inmates get in the H unit?
JOHN OLIVER: H unit in Phase 1 and Phase 2 get a minimum of ten hours a week.
MR. MELLIN: That's a minimum?
JOHN OLIVER: Yes, sir, it is.
MR. MELLIN: So they may get more time?
JOHN OLIVER: Yes, sir, they may.
MR. MELLIN: Is that always indoors or outdoors, or how is that split up?
JOHN OLIVER: We have both indoor recreation areas and we also have outdoor recreation areas that we use in the H unit.
MR. MELLIN: And if an inmate goes outside, to the outdoor recreation, is he able to communicate with the other inmates who are out at the time?
JOHN OLIVER: Yes, sir. There are six recreation enclosures outside, and at times we'll have up to six inmates that are separated by a fabric mesh between the rec enclosures which they can communicate with each other.
MR. MELLIN: Thank you.
MR. MELLIN: Thank you, your Honor.
THE COURT: Mr. Watkins?
CROSS-EXAMINATION BY MR. WATKINS:
MR. WATKINS: Good morning, Warden.
JOHN OLIVER: Good morning, sir.
MR. WATKINS: You were here in Boston last week?
JOHN OLIVER: Yes, sir, I was.
MR. WATKINS: And you went back to Colorado over the weekend?
JOHN OLIVER: Yes, sir, I did.
MR. WATKINS: Was it snowing?
JOHN OLIVER: It was snowing in Denver, but it did not snow in Florence.
MR. WATKINS: Is the Bureau of Prisons governed by regulations?
JOHN OLIVER: Yes, sir, they are.
MR. WATKINS: Those regulations are put into effect by Bureau of Prisons program statements?
JOHN OLIVER: Yes, sir, they are.
MR. WATKINS: Those program statements operate systemwide to give guidance on how prisons operate and procedures in every facet, Bureau of Prisons operations?
JOHN OLIVER: Yes, sir, we do.
MR. WATKINS: In addition to program statements, the institutions have institutional supplements that guides -- that gives specific guidance as to the institution itself?
JOHN OLIVER: Yes, sir, we do.
MR. WATKINS: And both within the program statements that are systemwide and within the institution, those are updated regularly?
JOHN OLIVER: Yes, sir, they are.
MR. WATKINS: At Florence ADMAX, you have several institutional supplements, correct?
JOHN OLIVER: Yes, sir, we do.
MR. WATKINS: And one of them applies specifically to H unit?
JOHN OLIVER: Yes, sir, it does.
MR. WATKINS: And that one was updated in 2013?
JOHN OLIVER: I would have to look at the date on it, but we typically try to update them every year.
MR. WATKINS: But that's an institutional supplement that you consult -- you and your staff consult as you operate the Florence ADMAX?
JOHN OLIVER: Yes, sir.
MR. WATKINS: And H unit specifically?
JOHN OLIVER: Yes, sir.
MR. WATKINS: When did you begin to be -- when did you start as warden?
JOHN OLIVER: October of 2014 at the -- are you talking about the ADX?
MR. WATKINS: Yes.
JOHN OLIVER: Yes, sir. At the ADX 2014.
MR. WATKINS: That's eight months ago?
JOHN OLIVER: Yes, sir.
MR. WATKINS: And before that it was Warden Berkebile?
JOHN OLIVER: Yes, sir, it was.
MR. WATKINS: And that institutional supplement then, that provides a template. It shows what is supposed to happen in particular programs and how the Bureau of Prisons -- and how you operate H unit?
JOHN OLIVER: Yes, sir, it does.
MR. WATKINS: And some of those reasons, the 13 -- well, not some of them, all of them. The 13 reasons that you mentioned to Mr. Mellin, those are all in that institutional supplement also, right?
JOHN OLIVER: Yes, sir, they are.
MR. WATKINS: And one of those considerations -- well, let me put it this way: That institutional supplement, one of the things you mentioned was the reason the inmate was designated to ADX. That's one of the considerations you take regarding moves, right?
JOHN OLIVER: Yes, sir, it is.
MR. WATKINS: And that consideration follows the inmate all during his time at ADX, and indeed all during his time at the Bureau of Prisons, right?
JOHN OLIVER: I don't know about the Bureau of Prisons, but I know those are considerations we use within ADX.
MR. WATKINS: But if an inmate were to go -- well, that is what you use at ADX, and that's one of the considerations you use as far as whether somebody can be moved, whether the conditions could be improved, right?
JOHN OLIVER: Yes, sir, it is.
MR. WATKINS: Another one is the safety and security needs of the inmate. That is one of those considerations also?
JOHN OLIVER: Yes, sir, it is.
MR. WATKINS: Are there some inmates because of the kind of crime they commit always going to be a safety issue? Is that fair to say?
JOHN OLIVER: No, that is not fair to say.
MR. WATKINS: There are no inmates because of their time -- of the crime that they committed are going to be a safety issue?
JOHN OLIVER: They may be a safety issue at that point, but it doesn't mean it's always going to be a safety issue.
MR. WATKINS: Within the Bureau of Prisons there are self-described patriots as inmates there, right?
MR. MELLIN: Objection, your Honor.
THE COURT: Overruled.
You may answer it.
JOHN OLIVER: Could you define a patriot for me?
BY MR. WATKINS:
MR. WATKINS: Well, isn't it true that there are inmates that would see it as a sign of honor to be able to do harm to somebody of the Muslim faith?
MR. MELLIN: Your Honor, objection.
THE COURT: Overruled.
Go ahead.
JOHN OLIVER: I don't know that -- you know, an individual inmate that's trying to go after a Muslim inmate, I don't know that for a fact.
BY MR. WATKINS:
MR. WATKINS: Are there inmates who would also see it as a sign of honor to go after somebody who had committed a murder against a child?
JOHN OLIVER: As in a lot of prison systems, I think that's something that's true.
MR. WATKINS: So where that is present, that is always going to be, as far as that factor, something you consider, the safety and security needs of the inmate as far as where he is sent and what you can do for his security?
JOHN OLIVER: Yes, sir, that's one of the factors we use.
MR. WATKINS: I want to talk specifically about the special security unit. We've mentioned three phases within that special security unit?
JOHN OLIVER: Yes, sir.
MR. WATKINS: You've already mentioned this special security unit was designed for people with SAMs, right?
JOHN OLIVER: Yes, sir, it is.
MR. WATKINS: That was its mission. That's -- its mission is to accommodate the regulations that come with the SAMs, right?
JOHN OLIVER: Yes, sir, it is.
MR. WATKINS: And it's a three-phase program, right?
JOHN OLIVER: Yes, sir, it is.
MR. WATKINS: So everybody -- an inmate coming in would start at Phase 1, right?
JOHN OLIVER: Yes, sir, it is.
MR. WATKINS: And he would start with that lesser set of privileges: the two phone calls a month rather than the four that he might get to eventually, right?
JOHN OLIVER: Yes, sir.
MR. WATKINS: And in that Phase 1, you spend at least 12 months within that Phase 1, according to the institutional supplement and the program that you run there, right?
JOHN OLIVER: Yeah, it's ordinarily 12 months.
MR. WATKINS: It can be longer than that, right?
JOHN OLIVER: Yes, sir. And it can also be shorter than that.
MR. WATKINS: It could be shorter, but it's rare for it to be shorter. You want to see somebody demonstrate clear conduct, right?
JOHN OLIVER: Yes, sir.
MR. WATKINS: So somebody coming in, you want to make sure that they're not a problem on H unit, right?
JOHN OLIVER: Yes, sir, that's correct.
MR. WATKINS: So after 12 months they can be considered -- it's not a guarantee to go to Phase 2, but they can be considered for Phase 2, right?
JOHN OLIVER: Yes, sir, that's correct.
MR. WATKINS: And then there's a special screening committee for -- within the Bureau of Prisons to determine whether somebody should go to Phase 2 once they become eligible, right?
JOHN OLIVER: Yes, sir, that's correct.
MR. WATKINS: So -- the inmate's not part of that committee, of course, right?
JOHN OLIVER: No, he's not.
MR. WATKINS: No inmates are part of that committee, right?
JOHN OLIVER: No, they're not.
MR. WATKINS: You're part of that committee?
JOHN OLIVER: Yes, sir, I am.
MR. WATKINS: As -- along with other staff at the H unit that have specific knowledge of the person, right?
JOHN OLIVER: Yes, sir, that's correct.
MR. WATKINS: And at the end of that, to go from Phase 1 to Phase 2, you make the decision ultimately, as the warden, whether that is appropriate?
JOHN OLIVER: Yes, sir, that is correct.
MR. WATKINS: Now, going from Phase 2 to Phase 3, again, you're looking at those 13 criteria that you talked about and that are in the institutional supplement, right?
JOHN OLIVER: Yes, sir.
MR. WATKINS: And you consider all of those factors -- well, Phase 2, also, that's 12 months minimum that you would spend on Phase 2 before being considered for Phase 3?
JOHN OLIVER: Ordinarily, yes, sir.
MR. WATKINS: Could be shorter, but many, many, many times it's longer. Is that fair to say?
JOHN OLIVER: There's times that it's longer. Yes, sir.
MR. WATKINS: And so Phase 2, it's starting to think about whether to give this additional -- to go over to Phase 3 of the special security unit, right?
JOHN OLIVER: Yes, sir. Our intent is to try to place inmates on a less restrictive environment.
MR. WATKINS: Right. And you consider those 13 factors and you decide that they should go to Phase 3 if they've shown appropriate institutional adjustment, they had clear conduct, all of those things that you talked about there, and you would think they would be appropriate for Phase 3. Can you on your own put them into Phase 3 where there's a SAMs present?
JOHN OLIVER: No, sir, I cannot.
MR. WATKINS: Why can't you -- well, you can't put them into Phase 3 because what Phase 3 has is a few hours a day of inmate-to-inmate contact, right?
JOHN OLIVER: Yes, sir. The SAMs has to be modified for inmate contact.
MR. WATKINS: And you can't modify that SAMs sitting there as the warden, right?
JOHN OLIVER: No, sir, I cannot.
MR. WATKINS: Even if you and your screening committee think that this is a perfectly appropriate person to go to Phase 3, you can't do it without that being modified, right?
JOHN OLIVER: That is correct.
MR. WATKINS: The only way to go to Phase 3 is if the Department of Justice, the National Joint Terrorism Task Force, the operation of enforcement -- Office of Enforcement Operations, the U.S. Attorney's Office and the FBI decide that that modification should be made, right?
JOHN OLIVER: Yes, sir, that is correct.
MR. WATKINS: You can send information to them: We think this is a guy good to go to Phase 3. They don't have to listen to you, correct?
MR. MELLIN: Objection.
THE COURT: Overruled.
You may answer it.
JOHN OLIVER: No, sir, they don't. We have a partnership where we work closely together. And understanding that, we provide them information. There may be things going on that I don't know about. But we do provide them information as far as what's going on with the inmate in the institution.
BY MR. WATKINS:
MR. WATKINS: So all of those things you mentioned, active participation and completion of all programs recommended, positive behavior, respectful conduct towards staff and other inmates, overall institution adjustment, personal hygiene, self-sanitation, all of those things could be great, but someone cannot go into Phase 3 without the Department of Justice's say-so, right?
JOHN OLIVER: That is correct.
MR. WATKINS: You talked in response to Mr. Mellin's question about ability to work on the unit. How many jobs do you have on H unit?
JOHN OLIVER: We have two jobs for orderlies in the unit.
MR. WATKINS: And what does an orderly do on the unit?
JOHN OLIVER: The orderly comes out of his cell and cleans the showers, clean the common areas of the cell -- or excuse me, of the cell house of H unit.
MR. WATKINS: So that's what it is, is cleaning functions, right?
JOHN OLIVER: Yes, sir, it is. It's a very popular job.
MR. WATKINS: And how many inmates do you have at H unit vying for those two orderly jobs?
JOHN OLIVER: The majority of the inmates would like to be an orderly.
MR. WATKINS: How many inmates do you have on the special security unit right now?
JOHN OLIVER: I have a total of 29 inmates in the housing unit.
MR. WATKINS: And of the 29, all of them want those two jobs, right?
JOHN OLIVER: Yes, sir. A lot of them want those jobs.
MR. WATKINS: And someone might spend years on H unit before they're allowed to get that orderly job?
JOHN OLIVER: Yes, sir, that is correct.
MR. WATKINS: Once they have them, they don't like to give them up. Is that true?
JOHN OLIVER: That is correct.
MR. WATKINS: That is a time that they can get out of their cell in addition to those other times that you mentioned?
JOHN OLIVER: Yes, sir, it is.
MR. WATKINS: If -- once the Department of Justice does modify the SAMs in order to allow someone to go to Phase 3, the time they spend in Phase 3 -- well, you talked about the 12 months in Phase 1 and the 12 months in Phase 2. What is the time listed in the institutional supplement for the amount of time someone will spend in Phase 3?
JOHN OLIVER: The amount of time somebody will spend in Phase 3? There's no time.
MR. WATKINS: It's indefinite? That's what it says in the institutional supplement?
JOHN OLIVER: Yes, it is.
MR. WATKINS: It's indefinite because that is again something you have no control over, right? To move out of Phase 3, again, it's a Department of Justice decision whether somebody can move out of Phase 3, right?
JOHN OLIVER: Yes, sir. But you don't have to be Phase 3 to move out of the unit, though.
MR. WATKINS: Sure. But still, the Department of Justice is the one that makes the decision whether someone can move off the special security unit, right?
JOHN OLIVER: Yes, sir, it is.
MR. WATKINS: So someone could be in Phase 3 for years and years and years and not move beyond there and be released from H unit, right?
JOHN OLIVER: That is not correct.
MR. WATKINS: Well, people are there for years. That is true, right?
JOHN OLIVER: Yes, sir. But the part I was talking about is we can move an inmate in the Bureau of Prisons with a SAMs to any institution that we want to.
MR. WATKINS: Where someone has a specific SAMs -- well, yes. One can -- ADX is the most secure facility in the country, right?
JOHN OLIVER: Yes, sir, it is.
MR. WATKINS: It has three missions, one of which is the special security unit, right?
JOHN OLIVER: Yes, sir, it is.
MR. WATKINS: The special security unit is designed for SAMs inmates, right?
JOHN OLIVER: Yes, sir, it is.
MR. WATKINS: And it is the only prison in the United States that is designed for SAMs inmates. Is that correct?
JOHN OLIVER: It wasn't designed for it. It was modified. But we also have other institutions that we house SAMs inmates in that are sentenced for, like, medical conditions and those types of things.
MR. WATKINS: Right. I want to talk first about ADX, though. Modified specifically to comply with the SAMs and to be able to implement the SAMs, that's what ADX does, right?
JOHN OLIVER: Yes, sir, it does.
MR. WATKINS: Now, someone might have a medical problem and need to go to the federal medical center and BOP deals with that, but the SAMs unit is a special security unit in ADX, Florence, Colorado. Is that right?
JOHN OLIVER: Is your question is that unit in the ADX? Yes, it is.
MR. WATKINS: To be relieved of -- to get out of the special security unit, putting aside medical issues, and be moved to some other form of security requires the Department of Justice concurrence by removing the SAMs, right?
JOHN OLIVER: No. From what I understand you're saying, there's only one way to get out outside of medical. But we do have people who go out to court, medical transports. There's other reasons inmates go out of that unit.
MR. WATKINS: Sure. There are reasons why inmates go out of that unit on a short-term basis, right?
JOHN OLIVER: Yes, sir.
MR. WATKINS: In order to move to a different security level, to be housed at a different security level, the Department of Justice has to concur?
JOHN OLIVER: No, sir, it does not.
MR. WATKINS: It has to concur by eliminating the SAMs to get out of H unit?
JOHN OLIVER: No, it does not.
MR. WATKINS: Aside from the medical issues, the short-term -- well, let me put it this way: There are inmates in Phase 3 that have been there for many years?
MR. MELLIN: Objection.
THE COURT: No, you may have the question.
JOHN OLIVER: Yes, sir, there are.
BY MR. WATKINS:
MR. WATKINS: And with those inmates that have been there for many years, if the SAMs were removed by the Department of Justice, you could move them to a different housing system, right?
JOHN OLIVER: Yes, sir, I could.
MR. WATKINS: Even if the SAMs are removed, you still have to consider those 13 factors that you told Mr. Mellin about and that are in the institutional supplement?
JOHN OLIVER: Yes, sir, I do.
MR. WATKINS: In addition, the Central Inmate Monitoring System that you heard Mr. Bezy talk about, you also are familiar with that?
JOHN OLIVER: Yes, sir.
MR. WATKINS: That has specific criteria, things that are special about an inmate that are going to affect the security classification. Is that true?
JOHN OLIVER: Potentially it is, yes.
MR. WATKINS: For example, broad notoriety, broad publicity is a factor that would affect the security designation of a person, right?
JOHN OLIVER: It may have an impact on it. We've had people with that security housing in a camp, a federal camp.
MR. WATKINS: It will affect the decision that you make as warden. It has to affect. You can't just ignore that broad publicity of Central Inmate Monitoring classification, right?
JOHN OLIVER: No, sir. It is a consideration.
MR. WATKINS: It is there by regulation. There's a federal regulation that requires it, and there's a program statement that implements that, right?
JOHN OLIVER: Yes, sir, it is.
MR. WATKINS: You talked about a person moving to the general population of ADX. Is the general population of -- the general population of ADX is completely different from the general population of an ordinary United States prison. Is that true?
JOHN OLIVER: Yes, sir, it is.
MR. WATKINS: It is different in a number of ways, the main one being that all of the inmates are in single cells?
JOHN OLIVER: In the general population at ADX?
MR. WATKINS: In the general population of ADX.
JOHN OLIVER: Yes, sir, they are.
MR. WATKINS: And their movements are sharply limited, right?
JOHN OLIVER: Yes, they are.
MR. WATKINS: They're shackled whenever they make movements, right?
JOHN OLIVER: Yes, sir. We do use restraints on them.
MR. WATKINS: And they, like the inmates in H unit, get ten hours of recreation a week -- a minimum of ten hours of recreation a week, right?
JOHN OLIVER: Yes, sir, that is correct.
MR. WATKINS: And that's outside and inside recreation?
JOHN OLIVER: Yes, sir, it is.
MR. WATKINS: There are inmates that are in the general population of ADX for many years, right?
JOHN OLIVER: Yes, sir, there can be.
MR. WATKINS: And they never go into the step-down program in preparation to go to some other United States prison, right?
JOHN OLIVER: Yes, sir. And many factors such as conduct, that type of thing, limits them as far as their ability to progress out of the institution.
MR. WATKINS: Sure. It's those 13 factors you told us that include safety and security of the inmate and the nature of the crime that they committed, right?
JOHN OLIVER: Yes, sir. Those are part of them, yes.
MR. WATKINS: If -- and constantly your consideration is whether a person for all of those 13 reasons is appropriate for housing at a different security level, right?
JOHN OLIVER: We are -- can you repeat your question, please?
MR. WATKINS: Whenever you're making a decision to move a person, you consider those 13 factors. It's not just whether they go to Phase 2 or Phase 3, but whether they go to general population or the step-down program, right?
JOHN OLIVER: Yes, sir, that's correct.
MR. WATKINS: So, for example, the broad notoriety, the broad publicity, that's something that can never be changed by an inmate. There's nothing that good conduct will do for that, right?
MR. MELLIN: Objection.
THE COURT: Overruled.
You may answer it.
JOHN OLIVER: No, sir, there's not.
BY MR. WATKINS:
MR. WATKINS: The same thing for the nature of the offense. That stays with a person for the rest of their lives. There's nothing they can do to overcome that for the Bureau of Prisons, right?
JOHN OLIVER: Yes, sir, that is correct.
MR. WATKINS: I want to talk a little bit about the communications on the inside of the special security unit. In answer to Mr. Mellin's question, you talked about the outside recreation, and that is a chance where inmates can talk to each other?
JOHN OLIVER: Yes, sir, it is.
MR. WATKINS: That outside recreation, that's in, I think you described, cages. It's covered above, covered on the side, right?
JOHN OLIVER: Yes, sir.
MR. WATKINS: There are high walls encircling that entire recreation area?
JOHN OLIVER: Yes, sir. That was a modified area which was an open rec area. We placed recreation enclosures in there at a later date.
MR. WATKINS: And that was because of SAMs and the nature and the mission of the special security unit, correct?
JOHN OLIVER: Yes, sir, that's right.
MR. WATKINS: Outside of that minimum of one and a half hours a day that an inmate is there, they would talk to another inmate by talking across cells, right?
JOHN OLIVER: Yes, sir.
MR. WATKINS: And that is through a steel door?
JOHN OLIVER: Yes, sir. Inmates communicate through the steel door. We have a speaker box on the outside of the door for staff to communicate. Inmates will use that. They'll talk through the toilet, the vent, through the door. It's easy to communicate between the cells.
MR. WATKINS: And you have a capability to record any of that that's going on there, right?
JOHN OLIVER: We have capabilities.
MR. WATKINS: And that's the same for the outside rec. You have the capability to audiotape and videotape any interactions between inmates there, right?
JOHN OLIVER: We have the capability.
MR. WATKINS: Let's talk about, now, communications with the outside world. To get to Boston, do you fly out of Denver?
JOHN OLIVER: Yes, sir, I do.
MR. WATKINS: To your knowledge, is that the way most people -- the airport most people fly into to get down to ADX?
JOHN OLIVER: No, we have Colorado Springs Airport which is about 55 minutes from Florence.
MR. WATKINS: But you used Denver to come here, right, to Massachusetts?
JOHN OLIVER: Yes, sir. The government requires me to get the cheapest ticket.
(Laughter.)
MR. WATKINS: Because it's very expensive to go into Colorado Springs, isn't it?
JOHN OLIVER: Yes, sir.
MR. WATKINS: Even though you also have to rent a car in order to get -- well, you have your own car there. So a family also wanting to get the cheapest flight to go visit a loved one there would have to go into Denver?
MR. MELLIN: Objection.
THE COURT: You may have it. Go ahead, you may answer it.
JOHN OLIVER: No, sir, they do fly into Colorado Springs.
BY MR. WATKINS:
MR. WATKINS: As you mentioned, the cheapest fare being into Denver, Denver is two and a half, three hours -- how long?
JOHN OLIVER: Two and a half hours from Florence.
MR. WATKINS: And that's not including construction on I25. Is that correct?
JOHN OLIVER: No, sir, I made it in two and a half hours yesterday. It was a good drive.
MR. WATKINS: And you talked about visits being more than one person -- with more than one person at a time. Is that more than one adult at a time?
JOHN OLIVER: No, sir, it is not.
MR. WATKINS: Under the SAMs and H unit, visits are only with one adult at one time, right?
JOHN OLIVER: Yes, sir.
MR. WATKINS: So, for example, a family of three comes here from Boston to visit an inmate, only one would be able to visit at a time, right?
JOHN OLIVER: Yes, sir. We would stage the other two upstairs, bring one down, let them visit, and then escort the others on a rotational basis so they could all visit.
MR. WATKINS: And those visits have to be scheduled weeks in advance? At least two weeks in advance, right?
JOHN OLIVER: Yes, sir. We would try to coordinate the visits to ensure the inmates' families that are traveling, they'll have the opportunity to visit with the inmate.
MR. WATKINS: One of the reasons you have to coordinate is because you can only use one visiting room at any given time for social visits, right, on each unit?
JOHN OLIVER: Yes, sir, that's correct.
MR. WATKINS: So if one of the other 29 has visits scheduled that same day, the people coming from Boston are -- I can't visit on that day, right?
JOHN OLIVER: No, sir. We take the duration of the people coming in from long distances to try to make accommodations for visits [sic].
MR. WATKINS: But I guess my point is they have to be scheduled in that way because all of the inmates are trying to use that one visiting room?
JOHN OLIVER: Yeah, we -- yes, sir. We try to get everybody an opportunity to visit there.
MR. WATKINS: Those visits, they are live monitored by the FBI?
JOHN OLIVER: Yes, sir, they are.
MR. WATKINS: They are live monitored by the Bureau of Prisons?
JOHN OLIVER: Yes, sir, they are.
MR. WATKINS: That means somebody is there listening to every word that's said during those visits?
JOHN OLIVER: Yes, sir, they are.
MR. WATKINS: If something untoward goes on there, the visit will be immediately stopped?
JOHN OLIVER: We'll stop the visit, yes, sir.
MR. WATKINS: And if it's serious, you'll report a breach?
JOHN OLIVER: Yes, sir, we will.
MR. WATKINS: As far as letters and other correspondence going out, each one of those unlimited letters is reviewed by the Bureau of Prisons?
JOHN OLIVER: Yes, sir, it is. Social letters, yes.
MR. WATKINS: Nonlegal mail?
JOHN OLIVER: Nonlegal mail, yes, sir.
MR. WATKINS: Each and every one of those letters is examined by the Bureau of Prisons?
JOHN OLIVER: Yes, sir, it is.
MR. WATKINS: Each and every one of those letters is examined by the FBI?
JOHN OLIVER: Yes, sir, they are.
MR. WATKINS: If a letter is in a foreign language, it will take a while for the Bureau of Prisons and the FBI to analyze those letters, right?
JOHN OLIVER: Not necessarily. We have linguists that review the letters that are going out, so we try to expedite those.
MR. WATKINS: "We try," but that's an extra layer that sometimes will delay mail, right?
JOHN OLIVER: Yes, sir, it can.
MR. WATKINS: Of both incoming and outgoing mail?
JOHN OLIVER: Yes, sir, it can.
MR. WATKINS: Mr. Mellin asked you about writing a book. If an inmate wrote a book and sent it to the outside, BOP would read that book, right?
JOHN OLIVER: Yes, sir, we would.
MR. WATKINS: And if there was anything that was untoward in there, created a security issue, either for the Bureau of Prisons, national security or anything else, that book would not be delivered, right?
JOHN OLIVER: No, it would not.
MR. WATKINS: The FBI would also look at that book and analyze it, right?
JOHN OLIVER: Yes, sir, they would.
MR. WATKINS: The FBI is also part of a larger organization of intelligence units. They would all look at that book to decide whether there was anything that threatened national security there, right?
JOHN OLIVER: Yes, sir, they would.
MR. WATKINS: Finally, phone calls. Those start at two a month, 15 minutes each?
JOHN OLIVER: Yes, sir, in Phase 1.
MR. WATKINS: Those phone calls, if they are -- they can be to another country if an inmate has approved contacts in another country, right?
JOHN OLIVER: Yes, sir, that is correct.
MR. WATKINS: If a bad connection stops that phone after six or seven minutes, that's the end of that 15-minute call, right?
JOHN OLIVER: The call will be -- the call will be cut off at that point because they hang up or the call is cut, but we will look at the call to see what happened and determine whether it was a technical malfunction to see if we can reengage a phone call for the inmate.
MR. WATKINS: And if you can't, that would be the end of that 15-minute phone call, right?
JOHN OLIVER: That is correct.
MR. WATKINS: I forgot to ask, but the hypothetical book we were talking about that could be written by somebody and sent to the outside, of course that can be only sent to approved contacts that have been approved under the SAMs. Is that right?
JOHN OLIVER: Yes, sir, it is.
MR. WATKINS: And that person on the outside is themselves barred from further disseminating that book, right?
JOHN OLIVER: Are you talking about giving an abolishment as far as not being able to do that?
MR. WATKINS: Yes.
JOHN OLIVER: I don't know that to be true.
MR. WATKINS: Just to get back to calls for just a moment. I think you did already answer my question. Once it's cut off or otherwise hung up, if you can't re-connect there, that is the end of that social call, right?
JOHN OLIVER: That social call ends, but we will go back and look to see the reason behind it, and we may grant the inmate another phone call if it was a technical issue.
MR. WATKINS: And those phone calls again for a person in H unit, they're only very specific people identified by the Department of Justice that the inmate can call?
JOHN OLIVER: At the inmate's request, yes, sir.
MR. WATKINS: That's all I have, your Honor.
REDIRECT EXAMINATION BY MR. MELLIN:
MR. MELLIN: Warden, you were asked about social visits and whether or not BOP or the FBI listens in on social visits. That entire line of questioning dealt with someone on a SAMs. Is that right?
JOHN OLIVER: Yes, sir, it did.
MR. MELLIN: So if someone is not on a SAMs, what happens?
JOHN OLIVER: They will visit in the institution, and a lot of times we will -- we have the capabilities of monitoring them as well.
MR. MELLIN: Does anyone listen to legal visits?
JOHN OLIVER: No, sir, we do not.
MR. MELLIN: Are you entitled to listen to legal visits?
JOHN OLIVER: No, sir, we are not.
MR. MELLIN: Social mail. When it comes in, how is it processed by BOP?
JOHN OLIVER: When a letter comes in, the letter is opened -- social mail, the letter is opened. It is photocopied, scanned and sent to the FBI, and then the FBI reviews it. If it's approved for the submission to the inmate, they'll send us a message that it's been approved. The staff member then takes the letter and gives it to the inmate.
MR. MELLIN: And what about outgoing social mail? What is the process on that?
JOHN OLIVER: Same thing. The inmate will give us the letter. We'll scan the -- read it and scan it, send it to the FBI. And the FBI will approve it or disapprove it, and then it either goes back to the inmate or it is sent off to its destination.
MR. MELLIN: What happens with the mail where the inmate writes "legal mail" on it?
JOHN OLIVER: The legal mail, if it's an attorney that's an affirmed attorney, the mail will be brought to the staff member and then it will be sent out. It will not be opened.
MR. MELLIN: It will not be opened?
JOHN OLIVER: It will not be opened.
MR. MELLIN: Mr. Watkins asked you about the hypothetical book. If an inmate is not on SAMs, is anyone going to see that book if it is mailed out?
JOHN OLIVER: Yes, sir. We review all the mail that's going out of ADX.
MR. MELLIN: No, not on SAMs. I'm sorry.
JOHN OLIVER: Yes, sir, we still review all the mail that goes out of ADX.
MR. MELLIN: What about if they're in another facility?
MR. WATKINS: Objection.
BY MR. MELLIN:
MR. MELLIN: Well, you mentioned ADX has a certain general population, in response to Mr. Watkins' question. And there's also other general population, correct?
JOHN OLIVER: Yes, sir, there are.
MR. MELLIN: Okay. And if they're in that other general population, is anyone going to know if that book is sent out?
MR. WATKINS: Objection.
THE COURT: Sustained.
BY MR. MELLIN:
MR. MELLIN: A book can be sent under legal mail and BOP would not know about it, correct?
MR. WATKINS: Objection.
THE COURT: You may answer that.
JOHN OLIVER: Yes, sir, it may be sent out as legal mail. We would not know about it.
BY MR. MELLIN:
MR. MELLIN: You were asked about the various phases and you said that the intent is to place someone in a less restrictive environment. Do you remember making that comment?
JOHN OLIVER: Yes, sir, I do.
MR. MELLIN: Why is that?
JOHN OLIVER: One of the things we try to do is --
MR. WATKINS: Objection, your Honor.
MR. MELLIN: Specifically what was brought out on cross-examination, your Honor.
MR. WATKINS: It's very cumulative at this point, your Honor.
MR. MELLIN: Your Honor, if I can just lead.
THE COURT: Yes, you may lead him on this question.
MR. MELLIN: Okay.
BY MR. MELLIN:
MR. MELLIN: The Bureau of Prisons is making an attempt to -- at all times to lessen restrictions on inmates. Is that fair to say?
JOHN OLIVER: Yes, sir, it is.
MR. MELLIN: You said that you don't have to be in Phase 3 to be moved out of the H unit. What did you mean by that?
JOHN OLIVER: That regardless of what phase you're in in the special security unit, that once a SAM is removed, the inmate will be removed from the unit regardless of what phase he's in, whether it's Phase 1, Phase 2 or Phase 3.
MR. MELLIN: And if that happens, is it required that that inmate go to ADX general population or can he be transferred out?
JOHN OLIVER: He can be transferred out.
MR. MELLIN: Mr. Watkins asked you about individuals on SAMs and if they're all at ADX. Can someone be on a SAMs and not be at ADX?
JOHN OLIVER: Yes, sir, they can.
MR. MELLIN: Are there inmates who are actually -- that are on SAMs who are not at ADX?
JOHN OLIVER: Yes, sir, there are.
MR. MELLIN: Thank you.
Thank you, your Honor.
MR. WATKINS: Nothing else.
THE COURT: Nothing else?
All right. Thank you, Mr. Oliver. You may step down.
We'll take the morning recess.
COURT CLERK: All rise for the Court and jury. The Court will take the morning recess.
(The Court and jury exit and there is a recess in the proceedings at 11:20 a.m.)