Saturday, November 29, 2014

Jurisdiction Appeal Written by Gary Yarbrough

Original Jurisdiction Appeal
August 202014
Re: Appeal of Parole Hearing Conducted on July 15, 2014, “None of Action”
Dated August 8, 2014
#1 The Guidelines were incorrectly applied in my case: © Time in Custody:
Hearing examiner Hilton had no knowledge of my actual sentence guidelines and therefore made no recommendation. She was unaware that, as an “old law” sentenced prisoner with a sentence over 45 years, I have a court appointed two-thirds date of 30 years. That two-thirds date is exactly the same date examiner Howard set for a “presumptive parole,” and which the commission approved in 2009, being: November 23, 2014. The “Presumptive Parole Date” of November 23th, 2014 was vacated in 2010; however, the court appointed two-thirds date of November 23, 2014 has not been vacated as far as I am aware.
According to the Notice of Action for the previous parole consideration dated September 19, 2012: “The commission parole consideration dated September 19th, 2012: “The commission will conduct a record review of your case approximately 9 months prior to the two-thirds date. If a parole is not ordered as a result of the record review, the commission will conduct a hearing for you.” I was given no notice of such a hearing, nor notice of the results of such a hearing if there was a record review or hearing. Since no notice was issued, and I was not given the opportunity to be heard or appeal the results of the hearing if the two-thirds date was revoked or vacated, a decision to deny the court appointed two-thirds release date should be considered null and void.
The “Notice of Action” dated August 8, 2014 noted: “No change in 15-year reconsideration hearing in July 2024 or continue to expiration, whichever comes first.” As far as I am aware, my sentence expires on the court appointed two-thirds date of November 23, 2014. The parole commission has not justified or given a reason for continuing my incarceration beyond the 30 year November 23rd, 2014 guideline.
As noted in my letter to the commission, given to examiner Hilton, dated July 15, 2014, the sentencing court in Seattle, WA for the 60 year sentence considered all priors, the “seriousness of my offenses” including the weapons offense case in Boise, Idaho when the court set the sentence and guidelines with a two-thirds date of November 23rd, 2014. As of yet, the commission has not issued a reason, nor given me Notice of Intent to continue my incarceration beyond the November 23rd, 2014 two-thirds date. According to the September 19, 2012 Notice of Action there are two reasons to consider:
  1. “Whether there is reasonable probability that I will commit a federal, state, or local crime; or
  2. “Whether I have frequently or seriously violated the rules of the institution.”
If the commission considered these two reasons at a “review” or “conducted a hearing for me,” I was not informed, nor given any due process regarding either. As to reason #1 its ambiguity and equivocality leaves it too uncertain to even address. It is a reason that is easily abused by any authority. As to reason #2, there are aggregate guidelines to prevent abuse or authority in this respect, and, as also noted in my July 15, 2014 letter to the commission, “I am 10 years beyond any aggregate guidelines for infractions.” That said, and as noted in previous appeals, this standard is easily exploited by the Bureau of Prisons staff, who abuse their authority to manipulate and orchestrate incidences to force inmates to commit infractions. They do this all the time. A disciplinary hearing is hardly conductive to a truly adjudicatory performance. Likewise, to extend my incarceration beyond the 30 year two-thirds date by ten years utilizing the two considerations noted above, without any notice, due process, or opportunity to be heard and rebut the accusations would be a miscarriage of justice. Eighteen years about the aggregate guidelines would be extremely excessive and truculent. Even the 10 years is contrary to guidelines (I’ve had no incident reports in 8 years).
As of November 23rd, 2014 I will have served 360 (30 years) months in prison, five years more than double the original guideline lower range of 150 months.
The decision was based on erroneous information
In July 2009 Examiner Howard recommended a 5 year parole date to November 23rd, 2014. That date was approved by the commission in October 2009. Four months later the commission vacated that date and a ordered a “special reconsideration hearing” to consider “new adverse information.” After being examined by Mr. Glen, he recommended to reinstate the November 2014 parole date. The commission denied that recommendation and ordered a second reconsideration hearing for July 2010. Examiner Kubic recommended a 15 year set off of 2024. The commission “notice of action” dated January 8, 2013 claims “The commission found posts attributed to you on websites that provide a forum for expressing white supremacist, anti-Semitic, militant, and anti-government views.” I would note here that I have been in prison since before the world wide web and internet existed. I have not had access to a computer, nor never seen any websites whatsoever. I have no way of knowing who, nor what, is on any website. The commission noted that these websites provide a forum “for expressing” views. It is a complete impropriety for the commission to hold me accountable for what others express in a public forum, especially since I have never viewed that forum and have no knowledge of who or what is posted on the side. I still do not know who or what these expressed views are. The Notice of Action  goes to the note, “Your continued affiliation through the internet contradicts your claim that you have for years renounced such views.” The commission has me “affiliated” with websites, people, and expressed opinion I have never seen, met, or heard? This also is complete impropriety. The commission claims that I “renounced such views” at the 2009 parole hearing. The 2009 parole hearing was audio recorded, I never made such renunciation. I stated at the hearing that “My beliefs have changed.” My beliefs never included “white supremacy” nor “anti-government” views. Therefore, not only is there adherence to such views there is no “continued adherence to such views,” nor any “affiliation” with anyone who professes such obvious views. That is: There was absolutely no “new adverse information” to “reconsider,” and no valid reason to vacate the November 23rd, 2014 presumptive parole date. The commission did so based entirely upon misperception and misrepresentation.  In paragraph four of the January 8, 2013 Notice of Action the commission goes on to allege my “continued expression of white supremacist” and “anti-government views via the internet” AS IF I HAD EXPRESSED SUCH VIEWS MYSELF!!!!!!!! The commission is apparently attributing to me the views that others have expressed in the format of a PUBLIC forum. This is yet additional impropriety.
Returning to paragraph one of the January 8th, 2013 Notice of Action, the commission claims that “White Supremacist Documents” were seized from my home over 30 years ago. No such documents were seized, nor presented as evidence in my trials in Idaho or Washington. I submit now that no such documents of “White Supremacy” exist. The court reinterated numerous times during the trial in Seattle, Washington that we were not being not being tried for our political/religious views, but for our violations of U.S. Laws. Regarding my October 23rd, 2009 appeal to the commission, in the May 12th, 2011 Notice of Action the commission noted that I “claimed that your ideological motives for committing the offenses were irrelevant.” I never made that claim either, I merely stated that my political beliefs and motives at that time were not illegal in themselves. Indeed, my religious beliefs were entirely the motivating factor behind my offenses 30 years ago. It is those beliefs which I referred to at the 2009 parole hearing that I have changed. And those beliefs were entirely from a biblical prospective, not white supremacy nor anti-government. The commission tends to read into my actions and statements concepts that are not relevant to me. It is a miscarriage of justice that not during my 30 years of incarceration has any government agent approached me and expressed concerns about any perceived political or religious beliefs I may or may not have, until after I was approved for parole in 2009. This seems to suggest a malicious intent. The commission will jump to wrong conclusions about my character and beliefs, but not make a single inquiry into what I actually believe?
This seems to suggest a malicious intent. The commission will jump to wrong conclusions about my character and beliefs, but not make a single inquiry into what I actually believe? Indeed, on numerous occasions I attempted to discuss my political/religious views with federal bureau of prison agents. Fifteen years ago I made a request to the psychologist, program coordinator Dr Ahrens requesting therapy with a “specialist” deprogrammer regarding my beliefs. (This request is noted in a memo from Dr. Ahrens to unit manager Adelsberger dated March 9, 2001. See Central File). I made this request so that my personal beliefs would be clarified and documented. I again requested counseling in July 2011 to Dr. Zahn and Dr. Koch to discuss the very concerns the commission raised, though those concerns are purely conjecture; my request went unanswered…….I made another attempt at counseling in a request to unit case manager, Mr. Fenlon, in written format dated March 18th, 2012. Again, no response, nor to a follow up request dated April 25th, 2012. It is inequitable for the commission to adversely judge me concerning my beliefs when the commission does not know what my beliefs consist of. I would also note that in 30 years of custody that I have no incidence of a racist nature, and no “white supremacist” prison gang activity. In fact, the Federal Bureau of prison staff has placed a “separations” order on me because I refused to allow a prominent white prison gang to force me to get involved in a prison “racial war”! My actions back up my words and dispel the accusations of the commission. I have had this separation since 1998. Since the commission had issues with websites, and sent me the disclosure material related to those sites in 2010, my wife threatened local action against those sites to force them to remove any and all mention of my name. Those disclosures were the first time I became aware of the contents of the website. Two refused to remove mention of me. There is nothing I can do about that. None of these people or websites are “affiliates” of mine. It is difficult to alter one’s past, and it takes considerable time to modify core beliefs. However, I never advocated white supremacy, racism, or anti-government views. I was, at one time, passionate about government reform. The commission should bear in mind that “The Order” was made up of men with a wide range of political and religious views. The description the government and commission note regarding The Order in the Notice of Action is untenable, the concepts of “Nazism,” “White Supremacy,” and a “White Christian Nation” are not ideologies that are compatible. This was not the objective of the Order nor was it a goal to “topple the U.S. Government.” Such a statement is purely sensationalism and hyperbole. Catch words to illicit an automatic programed reaction. Appeals are allegedly “decided on the basis of the written record.” But quite often that written record is simply an exaggerated distortion, as I believe I have demonstrated in this appeal utilizing only the Notices of Action. Perception must not be reality, reality stands on its own merits, good or bad. I have been fabricated into something I am not.
Co-defendant disparity
Also noted under appeal reason #4 the decision was based on erroneous information and the facts justify a different decision; and appeal reason #5 incorrect procedure;
Further errors and impropriety in the January 8th, 2013 Notice of Action: which notes that “Your co-defendants were not considered advocates of white supremacy.” I alleged co-defendant disparity because the commission claimed I was a white supremacist advocate. “You acted to advance the Neo-Nazi objectives of a paramilitary white supremacist organization.” (i.e. The Order). All co-defendants were members of the Order. According to court records, Richard Kemp was a “founding member.” Kemp was charged in the death of Walter West as an act of racketeering associated with the Order, he was paroled in 2008. Frank Silva, Randall Evans, and Andrew Barnhill are alleged to be Klu Klux Klansmen. All three are out on parole. I have never advocated white supremacy nor accused of any act in which someone was physically harmed. And yet the commission utilizes the claim of “white supremacy” in conjunction with membership in the Order to vacate the November 23rd, 2014 parole date. It is evident tht the commission utilizes a double standard wherein I am concerned. How is the label of “white supremacy” applicable to me, yet not to my co-defendants? The claim of “white supremacy” in the Notice is erroneous, and by associating this accusation to me and not the affore mentioned co-defendants is wrong reasoning and procedure. There is absolutely no evidence to suggest that I ever advocated white supremacy or the “toppling of the U.S. Government.” Expressing dissenting opinion and views does not equate to being anti-government. And the commission is wrong to equate me to the views and opinions of others noted in a PUBLIC FORUM.  The paroled Co-defendants are noted as having blogs on the very same websites in the disclosure material provided by the commission to claim I am “affiliated” with. This is complete impropriety. Additionally, the court made no charges as to religious or political beliefs, there charges were only violation of U.S. Laws. If the commission distinguishes one defendant from the others in regard to political views, then that same standard should justly apply to all defendants. How is it that I am accused of being a “white supremacist,” adversely decided against, and denied parole as a results of that accusation while “co-defendants,” alleged members of the same enterprise are “not considered advocates of white supremacy”? The April 1985 issue of “California Magazine” Page 97 shows a photograph of 8 individuals holding a KKK banner, two of those individuals are Frank Silva and Randall Evans at a “white power” gathering. The commission does not consider these two co-defendants, noted as “Klansmen,” as advocates of white supremacy but consider me, someone who has never believed in nor advocated such a concept, a white supremacist? These two are paroled, but I am labeled a white supremacist, and as a result of that label my sentence is extended by ten years? This is totally improper disparity counter to the goals of the sentencing guidelines. I am not “anti-government,”I do express verbal dissent to abuse of authority and injustice, which is a constitutional right of free speech, as is freedom of the press or media, and the right to be free from oppression due to political and religious beliefs.
Salient Factor Score
The Salient Factor score is 5, which does not indicate a “serious threat” or the probability that I will reoffend if released.” I have no “public safety factor” classification. Indeed, the Department of Justice offered to release me in 1994 if I would “cooperate” in the conviction of Robert Miles for a crime department of justice agents knew full well that Mr. Miles was innocent of. I was not “too dangerous to release” in 1994. And the Department of Justice has offered deals for downward departures twice since then on cases involving prison gangs. I refused.
For the parole commission to claim I advocate white supremacy utilizing the exaggerated claim of website “affiliation”. To suggest that I may not obey federal, state, and local laws is injudicious and exaggerated trepidation. As previously noted, the beliefs I held 30 years ago, which led to my offenses have changed.
Especially mitigation circumstances justify a different decision:
“The Order” was made up of men with beliefs of varying degrees, none advocated the “Neo-Nazi” or “White Supremacy” concepts. None of us participated in the RICO trial 30 years ago, and none refuted the government’s charges or claims. The claims of white supremacy and anti-government sentiments were purely exaggerated sensationalism. At the time, we were “separatists” not supremacists. We did not believe any one race was superior or inferior to any other race, we simply believed we were all different. We sought to preserve and cultivate our own racial heritage, nothing more. We were tried for our violations of U.S. Law. Trying 10 men altogether, regardless of legal justification, is a miscarriage of justice. The court claimed the Order was a well organized enterprise, but in reality nothing could be further from the truth. Men committed offenses entirely on their own, act I had no knowledge of or participation in. The court considered my own offense behavior in determining the sentence. Those guidelines mandate a two-thirds mandatory release date of November 23rd, 2014, which is more than double the lower guideline range. I’ve done 20 years for my co-defendants offense behavior. That should be satisfaction enough for anyone.
A More Light Decision Should Be Rendered on Grounds of Compassion
I committed my offenses as a young man at age 28, I am now 59 and in very ill health. I have severe Rheumatoid Arthritis, Liver Disease, Thyroid Disease, and COPD. My wife is ill also and currently on disability income. After the 2014 parole date was approved she adopted two children (One being her grandson) for us both to raise. Since the 2014 date was later vacated that means my wife is forced to raise the children alone. She needs help. I will not survive a 10 year set off for parole. I am also a father and a grandfather to 7 grandchildren. I have never seen because of distance and expense. I would like to see them and spend what remaining days I have left in life to enjoy my family.
For all the above noted reasons I do humbly request parole release at the earliest possible date. I have age and educated myself, improved my character and bettered myself. I am remorseful for all my offenses.
Thank you for your consideration.
Gary L. Yarbrough
August 20th, 2014

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