UPDATE SUMMARY: Dr. George Pararas-Carayannis' cruel, unusual, and disproportionate punishment is being perpetuated indefinitely in violation of the Eighth Amendment. The government attorney obstructed the Court's agreement. The BOP reneged on its agreement with the Court to file for compassionate release. Both the BOP and the Court now claim no jurisdiction. Dr. Carayannis has been denied Due Process protection guaranteed by the U.S. Constitution. He has been placed in a state of perpetual legal limbo, described by the court as "never-never land".
July 5, 1999
The BOP has reneged on its agreement with the Court to file a
motion for the compassionate release of Dr. Carayannis. The government
attorney would not agree that the Court has jurisdiction to modify
the sentence to home detention. On April 30, 1999, although sympathetic
and in support of Dr. Carayannis' compassionate release, the Court
ruled that, under existing statutes, it has no jurisdiction to
modify or reduce his sentence in the post-sentencing period. The
new day for his incarceration has been postponed to January 31,
2000.
Brief History: In 1991, Dr. Carayannis was targeted
for a "sting operation" and indicted in 1992 for "laundering
monetary instruments". He refused to "plea-bargain"
and was tried in 1993. The charge of "laundering monetary
instruments" (the government's own money allegedly netting
him $35), was based on an underlying violation of a Hawaii State
petty misdemeanor law which the government attorney argued that
did not have to be represented in this particular "sting
operation", nor proven at trial for conviction under 18 U.S.C.
§ 1956(a)(3)(A), the "sting money laundering statute".
The "laundering of monetary instruments " involved proceeds
of a "some form of unlawful activity" which, for the
purpose of this particular "sting operation", was a
fabricated "escort service" with fictitious owners and
customers. In spite of the fact that escort services are totally
legal in Hawaii and freely advertise in the Yellow Pages with
acceptance of credit cards, the government attorney argued that
there was no need for direct representation of "unlawful
activity" in this particular sting, because "everyone
knows that escort services are fronts for prostitution".
During trial and while the court was in session, there was improper
and unauthorized removal of the "videotape evidence"
by the government attorney and witnesses to the hotel room of
a government electronic expert who had electronic equipment and
was "enhancing" videotapes. The jury was not allowed
to learn about the improper removal and handling of court admitted
evidence or to hear factual testimony on its tampering. The electronic
expert was not required to testify as to what he was doing with
the court's evidence in his hotel room. Based on inferences derived
from this evidence, Dr. Carayannis was convicted for hypothetical
"laundering of monetary instruments", under § 1956(a)(3)(A),
specifically for his state of mind in "believing" that
he "concealed and disguised" the proceeds of the unrepresented
"unlawful activity".
Dr. Carayannis was not found guilty of any actual "laundering of monetary instruments" and no money laundering activity was eradicated as a result of his conviction because there was none to begin with. In 1994, he was sentenced to 41 months of imprisonment and three years of probation for the "sting" offense. His final appeal was denied on December 4, 1996. Since sentencing, Dr. Carayannis had three heart attacks and his medical condition has deteriorated significantly. For eight continuous years, that is from 1992 to the present time, he has been detained at home under Court supervision and has been receiving continuous medical care. However, his initial sentence of 41 months and three additional years of probation for his "thought crime" is now being prolonged. The government attorney undermined the Court's agreement with the BOP to grant him compassionate release. The magnitude of punishment for the hypothetical "sting" offense now amounts to 15 years of total detention. In this case it is the equivalent of a "life sentence" or even a "death sentence", given Dr. Carayannis' compelling medical circumstances and short life expectancy.
Medical Facts: Dr. Carayannis, is a 64 year old man, seriously infirm and disabled with numerous life-threatening impairments. He has been examined by twelve reputable physicians, including an Independent Medical Examiner (IME, a board-certified physician selected by the government attorney on behalf of the Bureau of Prisons (BOP). One of three independent medical examiners was a cardiologist assigned to U.S. President Ronald Reagan. All doctors agree that Dr. Carayannis is at great risk for a fourth heart attack, stroke or sudden death. His functional class has deteriorated to III/IV (IV being the worse). All doctors state that he cannot travel at any time from Hawaii and that his removal from present care presents substantial risks that could have lethal consequences.
Court's Agreement with the Bureau of Prisons (BOP) on Compassionate Release: On November 30, 1998, the BOP accepted the findings of the doctors and independent medical examiners. In view of the compelling circumstances, the Court urged the BOP to file a motion for Dr. Carayannis' compassionate release. Alternatively the Court asked the BOP and the government to agree that the Court has jurisdiction to grant him home detention, as the Court wanted to do, or else "we are caught in a never-never land." The BOP agreed to file the motion, if it had jurisdiction. Subsequently, the BOP reneged, claimed no jurisdiction, and refused to take temporary custody of Dr. Carayannis in Hawaii so it could honor its agreement. The government attorney would not agree that the Court has jurisdiction to modify the sentence to home detention and Dr. Carayannis was placed in a state of perpetual legal limbo, the "never never land", a term used by the Court itself.
Misapplication of Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) to prevent relief . Creation of Artificial Impediment / Exploitation of Non-representation by Counsel: Prior to December 18, 1997, Dr. Carayannis had no reason to file a motion for relief pursuant to 28 U.S.C.§ 2255. He was not in a BOP facility but at home receiving essential medical care. The government attorney caused an artificial impediment to prevent him from accessing 2255 relief through a technicality of AEDPA. The filing of Mittimus was delayed for slightly over a year from December 4, 1996 to December 18, 1997, so that relief could be denied by claiming that, pursuant to AEDPA, the statute of limitations for filing the 2255 motion had expired, and that any such motion for relief was "untimely" as Dr. Carayannis had been "in custody" under Court supervision "for more than a year". Subsequently, when Dr. Carayannis filed a motion for credit for such prior custody, the government attorney claimed this time that this detention time under Court supervision does not constitute "custody".
False Declaration about a " Medical Evaluation" by the BOP Prevented 2255 Relief: In January and in May 1998, in order to further deprive Dr. Carayannis of 2255 relief, the government attorney presented to the Court a "declaration" with statements which she knew to be erroneous. The declaration claimed that in early 1998, Dr. Kendig of the BOP had "evaluated" Dr. Carayannis' recent medical records and found "no changes in his health condition since sentencing in 1994". A copy of the alleged medical evaluation by the BOP was never produced, even though the government attorney was directed by the Court to do so. The BOP never acknowledged the existence of Dr. Kendig's 1998 "medical evaluation" cited in Court records and in the government attorney's declaration. All subsequent requests by Members of Congress for a copy of this 1998 evaluation by the BOP, have resulted in evasive responses or no response at all by Dr. Kendig. The government attorney's previous erroneous statements became evident in an April 20, 1999 letter of to the Court . This particular letter contradicted the earlier declaration, now stating that "the BOP can provide the appropriate medical care for the Defendant", based on "the evaluation of old medical records, dating before sentencing in 1994". (six years earlier)
Misrepresentation of Congressional Intent in the Application
of AEDPA: A review of the language and intent of the AEDPA
reveals that Congress focused on the civil rights of prisoners
under BOP custody and not those out on bail or under Court supervisory
release. Congress did not intend AEDPA to be abused by dismantling
habeas corpus relief; by creating artificial impediments and technicalities
through which the needed relief can be denied or by striping the
federal courts of their authority to remedy improper or unconstitutional
incarceration -- especially when new evidence is presented. Congress
did not intend habeas corpus relief to be eviscerated completely
in the name of "anti-terrorism". Dr. Carayannis is neither
a terrorist nor a dangerous criminal. Dr. Carayannis, a prominent
international scientist, is old and seriously infirm with a short
life expectancy and at great risk for a fourth heart attack, stroke
or sudden death. He is in great need of relief which the Court
recognized and supported. There was deliberate misapplication
of the newly legislated Anti terrorism and Effective Death Penalty
Act of 1996 (AEDPA) to prevent 2255 relief for Dr. Carayannis.
Obstruction to Prevent Needed Relief and to Cause Cruel, Unusual and Disproportionate Punishment in Violation of the Eighth Amendment and the Due Process Protection of the United States Constitution, not to Mention Principles of Civilized Treatment Guaranteed to Assure that the Power to Impose Punishment is Proportional to the Offense and Exercised Within the Limits of Civilized Standards.
Improper Contact with Physicians - Coercion, Distortions and Mischaracterization of Facts : The record shows that the government attorney ignored the findings and warnings of well respected physicians and attempted to discredit their medical reports and 800 pages of clinical records! In the past, erroneous information was presented to the Court that Dr. Carayannis was seen " driving a car with a blond woman next to him" on the same afternoon he was released from the hospital, after spending nine days in intensive care following a severe heart attack and heart surgery. Also, there was improper contact and misrepresentation of facts of the case in an apparent attempt to coerce and influence Dr. Carayannis' treating physicians to agree to his transfer from Hawaii to the prison facility by "air ambulance".
Obstruction with the Court's Agreement with the BOP: The government attorney did not respond and evaded a direct or proper answer to the Court's questions. Twice, on 21 December 1998 and 5 March 1999, the Court wrote the government attorney: "If the BOP concludes that it has jurisdiction (to file), then it would seem under the circumstances as Mr. Coleman has indicated that the BOP would be more than happy to file a motion for compassionate release under Section 3582(c). On the other hand, if the BOP believes that it does not have jurisdiction, then the Court would like to know whether the BOP and the U.S. Attorney's Office agree that the Court retains jurisdiction to modify Mr. Carayannis' sentence as indicated."
Although the BOP admitted that it had no jurisdiction and refused
to take temporary custody of Dr. Carayannis for the purpose of
filing the compassionate release motion as the Court had recommended,
the government attorney insisted that the Court was also without
jurisdiction to grant home detention. Without stating a valid
reason, the government attorney insisted this time that mittimus
for Dr. Carayannis should be "postponed" rather than
commence under home detention. This was a deliberate and willful
effort by the government attorney to prolong unnecessarily Dr.
Carayannis' ordeal and suffering.
Improper Surveillance to Discredit Medical Reports and Clinical
Records - Misapplication of Government Resources and Public Funds:
Government resources were misused to conduct "surveillance"
on Dr. Carayannis with an IRS agent later posing and testifying
as a "medical expert". The government attorney's "medical
expert" covertly videotaped Dr. Carayannis walking to a public
bathroom, from a car and to the doctor's office. Also, on the
day of Dr. Carayannis' medical examination by the BOP's independent
medical examiner, agents were placed in the parking lot, the lobby,
and the corridors of the medical building, as well as in the reception
area of the physician's office. At the April 9, 1999 Court hearing,
one of these government agents testified that Dr. Carayannis walked
"normal". He based his "medical expertise"
on the fact that his own father had a heart attack. He claimed
his father had been given permission to travel afterwards by one
of his physicians, Dr. McNamee. When the Court commented that
Dr. McNamee is a gynecologist specializing in invitro fertilization,
the government's expert witness could not explain why his father
was seeing a gynecologist or why he died shortly after flying
to Arizona.
The Court Was "Disturbed" by the Improper Conduct:
At the hearing of April 9, 1999, the Court was critical of the
government attorney's conduct by failing to provide a direct answer
to the court's questions, reneging on the Court's agreement with
the BOP and by withholding from the Court a letter from the BOP.
The Court stated:"now a year later, with Dr. Carayannis'
condition having deteriorated further, we seem to be back in the
same boat." ...the Court is very disturbed that the BOP has
reneged on the agreement.." "I thought we had
an agreement...What happened to that agreement? You have a copy
of the transcript, don't' you....? You were present".
" I don't' think we received Mr. Sorba's (BOP's) letter."
. The Court also stated:"BOP's expert has examined
the defendant. He is an IME physician hired by the BOP. And Doctor
Fergusson found that for the defendant to travel would be life
threatening. So have ten or so other doctors, including Doctor
Chesne, my own physician, who also was a designated physician
for President Reagan... I would think that if Doctor Chesne's
opinion is good enough for the President of the United States,
it might be good enough for the BOP."
When the government attorney defended her role by stating:
" ...I have a client in the United States. I'm not here for
my pound of flesh...", the Court responded angrily: "
Well, you have a client who I thought made an agreement..."
, and "... I would think they would be satisfied with
a doctor who's good enough for the U.S. President.."
High Level of Sentencing - Infliction of Cruel and Unusual Punishment
- Denial of Constitutional Due Process Protection: As indicated,
Dr. Carayannis has been already detained for eight years, under
Court supervision. However, Dr. Carayannis' initial sentence of
41 months and three additional years of probation is being prolonged
unreasonably. The magnitude of punishment adds up to almost 15
years of total detention. In this case it is the equivalent to
a "life sentence" or even a "death sentence";
simply because of the compelling medical circumstances and his
short life expectancy. It would seem that nothing less than the
death of Dr. Carayannis will satisfy the government attorney's
zeal; quite possibly because he refused to "plea-bargain"
and because he complained about the illegal removal and tampering
of Court evidence at a hotel room, during trial and while the
court was in session. Similarly, the wasteful use of more than
$4 million in public funds to prosecute Dr. Carayannis for "laundering
monetary instruments" (netting him $ 35) must somehow by
justified (by demonizing him). Dr. Carayannis has been placed
in a state of legal limbo, described by the court as "caught
in a never-never land". Because of improper prosecutorial
conduct, he has been denied the Due Process protection of the
Constitution. Astonishingly, the BOP reneged on its agreement
with the Court. Incredibly, both the BOP and the Court claim no
jurisdiction.
The Support Committee
758 Kapahulu Ave., # 422
Honolulu, Hawaii, 96816
FAX: (808) 733-7808