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David Frederick


David with his family (1997)

66 Months - Marijuana Conspiracy

Allow me to introduce myself. I am David Frederick, 54 years old, a husband to Linda and father of 14 year-old daughter Jacquie and 11 year-old son Scott of Virginia Beach, Virginia. I currently am incarcerated at F.C.I. Fort Dix, New Jersey, having just transferred here on October 17, 2000 from Rochester (MN) Federal Medical Center. I've completed almost 3 years of a 5-year sentence for a non-violent marijuana conspiracy conviction.

I was arrested in September 1996 and diagnosed three weeks later with a Stage 4 cancer of my tongue/lymph nodes. My outside doctor initially wanted to remove my tongue and voice box. After a second opinion, and based on my reluctance to undergo such radical measures, a course of treatment was decided upon. 'Treatment' meant three months (44 sessions at maximum levels) of radiation, followed by a radical bilateral neck dissection with removal of 88 lymph nodes from my neck and implantation of radioactive isotopes in the large tumor at the base of my tongue. The cancer had spread to my lymph nodes.

I was on personal recognizance bail when surgery was performed and sentencing was delayed for approximately one year to allow for medical treatment and recuperation. Needless to say, the BOP did not want to pick up the tab for my medical cost, which totaled $970,000. Luckily, for 20 years I had been the owner/manager of an independent insurance adjusting company and owned excellent private medical insurance. During and after surgery, severe complications set in. As opposed to the projected 4 to 5 days in the hospital, I ended up hospitalized for almost 4 months, much of it in intensive care.

From December 1996 to June 2000 I was unable to consume any food by mouth and subsisted solely and exclusively on 6 to 10 cans of Ensure a day pumped into me through a tube inserted in my stomach. My weight dropped from approximately 360 pounds at diagnosis to 128 pounds as of June 2000 - a loss of 232 pounds. At sentencing in January 1998 in Norfolk, VA, my civilian doctor declined to provide Judge Henry Coke Morgan with a specific prognosis of life expectancy, alleging that the treatment regimen I underwent was too new and innovative to provide a history on which to base a prognosis.

Thus, I voluntarily surrendered to FMC Rochester on March 6th, 1998 and was placed on "Death Row" - the ward for most seriously ill inmates. Within two weeks of arrival, BOP physician Dr. Thompson and a specialist from the Mayo Clinic of Rochester examined me. Both BOP and Mayo Clinic doctors were adamant that there was absolutely no hope for my survival, and they projected a maximum prognosis of 3 to 6 months left in my life.

Predicated on that prognosis, the BOP's Dr. Thompson initiated a Compassionate Release request on my behalf. Mind you, I had been incarcerated (my first time down) for less than a month, had no idea what a 'compassionate release' was, am totally ignorant of the prison system and heavily sedated on morphine, fentynal, oxycodene, and other drugs. Needless to say, I was unable to fend for myself, medically, legally or emotionally. The Compassionate Release was approved by a committee of five at the local level of Rochester FMC and forwarded to Kansas City (KS) where Regional Director G.L. Hershlerger denied the request on April 14th, 1998.

"The court was aware of his medical condition at the time of sentencing," Hershlerger said. His argument for denial was glaringly unfounded and spurious since my civilian doctor had refused on record to give a survival prognosis when asked the question in court.

Given my condition, physically and emotionally, and the fact that I was ignorant of any appeal process, I simply followed Dr. Thompson's recommendation to let the matter lie for the time being and "reapply at a later date."

Months passed before I began to understand how the BOP system worked. I realized my only opportunity for appeal of the denial was no longer possible since the 20-day limit had elapsed without anyone advising me of that stipulation. In fact, my case manager, Ms. Hoehn, didn't even provide me with written verification of the denial until May 14th, 1998 - some 30 days after the denial. With that development, I was exhausted, and I prepared to die as doctors assured that I would.

As one day led to a week, to a month, and longer, and though my weight dropped, my will to live grew stronger. I was determined not to leave a legacy to my two young children that their daddy had died in jail for a non-violent marijuana charge. Their love and the love, dedication and devotion of my wife, has kept me alive.

It should be noted here that, amazingly, one of my coconspirators, Mike Peale, also had been diagnosed with cancer and given home incarceration by Judge Morgan at prosecuting Attorney Kevin Comstock's suggestion. Sadly, Mike passed away 3 months after sentencing. When my attorney and I begged Comstock to recommend the same home incarceration for me, his response was astonishing.

"There is no way I'll ever recommend home incarceration for two co-conspirators in the same case just because they're both dying of cancer; otherwise, everyone will want to go out and get cancer," Comstock chortled. This is the same prosecutor who seized my wife's assets even though she was an innocent spouse and never charged.

When I protested the seizure of her assets - our home, IRA, real estate, and more - he insinuated he would find some way to charge her with something, snarling in my face, "Do you want your children to have one parent or none?" Needless to say, thinking that I was dying, we agreed to relinquish her assets, leaving my family destitute after 20+ years of full time legitimate employment as owner/manager of a nationally recognized insurance adjusting firm.

Last year, after much contemplation, I submitted an 'out-of-time' third-level review of my Compassionate Release request to the BOP Central office in Washington, D.C. I have not had the courtesy of a response in any form. Apparently, they must feel that since I persevered on my own and survived the 90-180 day prognosis laid on me 3 years ago, that I should continue to be punished because I was too stubborn to die!

To further exacerbate the situation, I am eligible for the Residential Drug Awareness Program (RDAP). Upon completion of this program, I would be eligible for a one-year reduction in my sentence, potentially getting me home or to a halfway house in June 2001 - versus my firm release date of December 19, 2002. Two of my co-conspirators have received or will receive their RDAP reduction. Thus, I will do significantly more time than they will solely because I was unlucky enough to be stricken with life-threatening cancer.

On the face of it, the written 'law', BOP policy and federal statutes prohibit discrimination against inmates based on disabilities such as mine. So why have I been denied enrollment in RDAP and denied transfer to a Medical Center that offers RDAP?

After exhausting all my administrative remedies from local to national BOP levels, I finally prevailed upon my last attending physician at Rochester, Dr. Cygnor, to medically clear me, thus facilitating my transfer to F.C.I. Fort Dix for hopeful enrollment in RDAP. (Better late than never!)

Since my arrival here on October 17th, 2000, I've been told that I'm too late to enroll in the November 2000 RDAP session and may be considered for enrollment in the next session of February 2001. If I get into that session, I still miss out on 5 months of potential reduction of my sentence. BOP policy and federal statute also mandate "that the BOP shall make available appropriate substance abuse treatment for each prisoner. The Bureau of Prisons determines who has a treatable condition of substance addiction or abuse ... with priority for such treatment accorded based on an eligible prisoner's proximity to release date." It is my contention that the November session of RDAP here at Fort Dix has enrolled prisoners with later release dates than mine. Thus, I feel that the BOP is violating its own policy, as well as federal statutes including the Americans with Disabilities Act.

Miraculously, this past July, I was able to begin sipping soup broth, Jell-O and other soft foods. Here at Fort Dix, the food service staff has been extremely helpful by pureeing my meals. With that and my continued supplement of Ensure (6-8 cans per day) I have gained 35 pounds! I am determined to survive and return home to the loving arms and embraces of Linda, Jacquie and Scott!

I continue those efforts and will persist until I prevail - or, to my last breath. The entire United States Justice System and BOP system has, I feel, succeeded in procuring their "pound of flesh" (in fact they got 232 lbs. of mine!), and I will resist, with every last ounce of what's left of me, to give them any more.

Even though the government sentenced me to death for a marijuana case, I shall survive! To all my fellow prisoners of the Drug War, do as I do: keep the faith, never give up, never say die, and FIGHT THE GOOD FIGHT! This is a tougher fight than I ever experienced in Vietnam (1967-68, United States Army), but I made it home from there, and I shall return home from this other unwinnable war also.

Right on!

Updated - 3/01/2001

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