United States v. Bardell

UNITED STATES OF AMERICA, v. FREDERICK MERVIN BARDELL, Defendant.

No. 6:11-cr-401-RBD-EJK

United States District Court, M.D. Florida, Orlando Division

June 6, 2022

SPECIAL MASTER'S VERIFIED EXECUTIVE SUMMARY

The Special Master has prepared a report containing recommendations to the Court in connection with its prosecution of contempt proceedings against the Federal Bureau of Prisons and Kristi Zook, the former warden of the Federal Correctional Institute in Seagoville, Texas (“FCI Seagoville”). The Court initiated these contempt proceedings in response to its discovery that BOP employees at FCI Seagoville failed to comply with a condition in its Order granting Defendant Frederick Mervin Bardell's (“Mr. Bardell”) second motion for compassionate release (“Release Order”). This condition required BOP to release Mr. Bardell after the United States Probation Office (“Probation”) approved a compliant plan of release developed in coordination with Mr. Bardell's former counsel, Kimberly Copeland (“Approval Condition”). The Approval Condition was not followed, and Mr. Bardell was released before a release plan was approved by Probation.

In addition, Mr. Bardell died nine days after his release from FCI Seagoville. The circumstances of his release necessitated judicial scrutiny.

Pursuant to the Court's Order appointing him Special Master, the undersigned was charged with: (1) investigating the circumstances of Mr. Bardell's release; (2) prosecuting contempt proceedings on behalf of the Court; (3) determining whether BOP and/or Warden Zook should be held in contempt for violating the Release Order; (4) advising on the imposition of sanctions; and (5) preparing a report containing recommendations to the Court on how to proceed. (Doc. 111, p 2.) The executive summary, which accompanies the undersigned's more fulsome report, provides a concise overview of the Special Master's investigation, his ultimate findings of fact, and his corresponding conclusions of law.

I. THE INVESTIGATION

The Special Master used the following fact-gathering tools in conducting his investigation: witness interviews depositions, informal requests for document production, and research based on publicly available documents. Contemporaneous notes were taken of the witness interviews.^[1] The Special Master interviewed:

Ms. Copeland and her legal assistant; Mr. Bardell's parents and brother; five current and former Probation officers; four doctors, including two who submitted affidavits in support of Mr. Bardell's motion for compassionate release and two who treated him at Baptist Health in Jacksonville following his release; a retired supervisory correctional systems specialist at the Federal Correctional Complex at Coleman; two government attorneys; and the regional medical director for BOP's South-Central region. In addition, the Special Master deposed 13 BOP employees.

II. TREATMENT OF PRIVILEGED MATERIAL

The undersigned has been sensitive to issues of attorney-client privilege that have arisen during his investigation. In order to conduct a robust investigation without compelling the parties to waive privilege, the Special Master entered an order governing the production of privileged information on April 29, 2022. (Doc. 128.) Pursuant to that order, the government produced a comprehensive privilege log during the investigation. The Special Master's report does not contain privileged information, and the Special Master was careful to avoid eliciting privileged responses during witness interviews and depositions.

III. FINDINGS OF FACT

Based on the undersigned's review of documents produced by the parties and witnesses, as well publicly available documents on BOP's website, witness statements made during investigative interviews and depositions, and the undersigned's assessment of the witnesses' credibility during the same, the Special

Master makes the following findings of fact.

• The Approval Condition in the Release Order was lawful, clear, and unambiguous.

• The Approval Condition required BOP to wait to release Mr. Bardell until it received approval of a release plan from Probation.

• This condition was consistent with BOP policy and practices already in place at FCI Seagoville.

• BOP and Warden Zook had the ability to comply with the Release Order.

• FCI Seagoville employees responsible for carrying out release procedures provided one of three reasons for not complying with the Approval Condition: (1) they did not read the Release Order; (2) they did not heed the Approval Condition; or (3) they assumed that the Approval Condition had been met.

• The foregoing reasons demonstrate that the relevant employees did not make all reasonable efforts to comply with the Approval Condition.

• The actions of the FCI Seagoville employees grossly deviated from reasonable conduct.

• At the time of Mr. Bardell's release, Warden Zook had responsibility for administrative and organizational controls at FCI Seagoville, as well as the technical and administrative direction of subordinate employees.

• At the time of Mr. Bardell's release, Warden Zook had full authority and responsibility to carry out court orders directed to FCI Seagoville.

• Prior to Mr. Bardell's release, there was no system in place to ensure that FCI Seagoville employees complied with all conditions of judicial release orders.

• The subsequent remedial measures that Warden Zook implemented at FCI Seagoville were not put in place to prevent FCI Seagoville employees from failing to comply with future release orders but, rather, to avoid a finding of contempt and the imposition of sanctions in these proceedings.

• At the time of her deposition, Warden Zook was the warden at a different BOP facility, specifically the Federal Transfer Center in Oklahoma City, Oklahoma (“FTC Oklahoma City”).

• At the time of her deposition, Warden Zook had not put procedures in place to ensure that she had oversight over compliance with release orders at FTC Oklahoma City.

• At the time of her deposition, Warden Zook did not have plans to incorporate the changes she made at FCI Seagoville at her new facility.

• BOP is responsible for transporting released inmates to the location where they will be residing. This responsibility includes payment for transportation.

• Because BOP did not want to pay for a non-contract flight for Mr. Bardell, FCI Seagoville employees asked Mr. Bardell's parents to pay for a commercial flight.

• If Mr. Bardell's parents had been unable to pay for and book his flight, BOP would have paid for a non-contract flight.

• BOP directed Mr. Bardell's parents to pay for his release transportation before receiving approval of a release plan from Probation.

• This direction did not comply with the Approval Condition in the Release Order.

• The cost of Mr. Bardell's flight on February 8, 2021, was $494.20.

• Mr. Bardell's parents incurred this cost due to actions taken by FCI Seagoville employees to authorize Mr. Bardell's release prior to satisfying the Approval Condition.

• Ms. Copeland had a telephone call with Mr. Bardell on the morning of his release.

• During this call, there was no expectation of a confidentiality because there were clearly marked signs around the phone stating that the call would be recorded.

• FCI Seagoville designates separate phones for unrecorded, privileged calls.

• On the call, Ms. Copeland agreed that BOP could book Mr. Bardell a commercial flight to Jacksonville so that he could leave FCI Seagoville on February 8, 2021, without incurring expenses for air ambulance transport.

• At the time she agreed, Ms. Copeland was unaware of the extent of Mr. Bardell's physical condition. She did not know how weak he was or how difficult it would be for him to travel on his own.

• The Probation officers who worked on Mr. Bardell's release plan knew that Mr. Bardell would be released to a hospital in Jacksonville.

• The Probation officers did not know that Ms. Copeland intended for Mr. Bardell to be transported to the hospital via air ambulance.

• Even if BOP had complied with the Approval Condition, Mr. Bardell may still have travelled to Jacksonville on a commercial flight.

• Two days before the Court issued the Release Order, FCI Seagoville diagnosed Mr. Bardell with cancer.

• FCI Seagoville employees who met with Mr. Bardell on the day of his release had the opportunity to observe his physical condition. That day, Mr. Bardell complained of weakness and asked to sit down during a meeting with the unit secretary. He later requested a wheelchair. He was pushed in a wheelchair to the receiving and discharge center at FCI Seagoville immediately before he left the facility.

• Once released, Mr. Bardell was driven to the Dallas Fort-Worth airport and left at the curb. He had to make his way through DFW and a connecting flight in Atlanta without any assistance. He was in a bloodied and soiled condition when he arrived in Jacksonville.

• FCI Seagoville employees provided Mr. Bardell with a flight, rather than bus transportation, because of the distance to be traveled and in response to concerns communicated by Mr. Bardell's mother regarding his health.

• FCI Seagoville employees did not consider whether any other assistance should have been provided to Mr. Bardell in light of his physical and medical condition.

• Most of the FCI Seagoville employees who processed Mr. Bardell's release were unaware of his medical condition because they did not read the Release Order.

• The costs and expenses of the Special Master's investigation would not have been incurred if BOP and Warden Zook made all reasonable efforts to comply with the Release Order.

IV. CONCLUSIONS OF LAW

In view of the foregoing findings of fact, and the Special Master's analysis of controlling and...