EFTA00039282.pdf

EFFECTIVE NOVEMBER 18. 2020 Elements of Prohibited Acts I. Elements of Prohibited Acts: Elements of prohibited acts are the definitions of the conduct which constitutes commission of the prohibited acts. Elements are facts which must be present in order to prove the commission of a prohibited act. There are specific facts which constitute or make up each prohibited act that must be established in the record before you can find guilt or commission of the act. Elements consist of four or five categories (depending on the offense) which must be present in order to prove commission of the prohibited act. They are: A. Subject: The inmate accused of committing the prohibited act must be properly identified and described in the -description of the incident' and in the "specific evidence relied upon. Normally, the name and register number is sufficient. B. Time: Usually described as the day and hour the incident occurred. C. Location: The place or places the offense was committed. Gives notice of what to defend and establishes our right to regulate the inmate's conduct. D. Act: The description of the actions or conduct of the inmate which constitute the commission of the specific prohibited act. **This Li the most significant element and presents the most problems in definition. E. Victim: Must be described and identified in those instances where the prohibited act or offense is against another person. An assault requires a victim. Failing to provide a urine sample does not. II. Elements Determine What Offense is to be Charged A. Description: The description of the incident on the incident report. 1. Staff must describe in factual terms what they observed, heard, tasted or smelled. 2. Section I I must contain all elements of prohibited acts. 3. This description provides the Wolff notice requirement. EFTA00039282 Elements of Offense Code Offense 100 Killing. Deprive of life. 101 Assaulting any person, or an armed assault on the institution's secure perimeter (a charge for assaulting any person at this level is to be used only when serious physical injury has been attempted or accomplished). An attempt or threat to do violence to another; includes battery, or the unconsented touching of another. 102 Escape from escort; escape from any secure or non-secure institution, including community confinement, escape from unescorted community program or activity; escape from outside a secure institution. Escape - departure from custody without permission or authority or before official release. 103 Setting a fire (charged with this act in this category only when found topose a threat to life or a threat of serious bodily harm or in furtherance of a prohibited act of Greatest I severity, e.g., in furtherance of a riot or escape; otherwise, the charge is properly classified Code 218 or 329). To cause ignition or combustion; includes destructive burning. 104 Possession, manufacture, or introduction of a gun, firearm, weapon, sharpened instrument, knife, dangerous chemical, explosive, ammunition, or any instrument used as a weapon. Possess - to have on ones person or under one's dominion or control. Manufacture - to make or fashion something. Introduce - to bring in from outside the institution; any of the objects listed. 105 Rioting. Participates with two or more other persons in a disturbance for purpose of preventing or coercing official action with actual or threats of violence. 106 Encouraging others to riot. Promotes or urges others to participate in a riot. 107 Taking Hostage(s). To take someone captive with threats to kill or harm if demands are not met. 108 Possession, manufacture, introduction, or loss of a hazardous tool (tools most likely to be used in an escape or escape attempt or to serve as weapons capable of doing serious bodily harm to others; or those hazardous to institutional security or personal safety; (e.g., hacksaw blade, body armor, maps, handmade rope, or other escape paraphernalia, portable telephone, pager or other electronic device). Possess - to have on ones person or under ones dominion or control Manufacture - to make or fashion something. Introduce — to bring in from outside the institution; any of the objects listed. EFTA00039283 I H) Refusing to provide a urine sample; refining to breath into a Breathalyzer; refusing to take part on other drug abuse testing. Voluntary or intentional decision not to provide a specimen of urine for testing; a stated inability to provide a urine sample within reasonable time, normally two hours. Voluntary or intentional decision not to breathe into a Breathalyzer for alcohol or other intoxicant testing. Voluntary or intentional decision not to take part in other alcohol/intoxicant testing/drug abuse testing as required. 111 Introduction or making of any narcotics, marijuana, drugs, alcohol, intoxicants, or related paraphernalia, not prescribed for the individual by the medical staff. Introduce - to bring in from outside the institution. Making- to make or construct any narcotics, drugs, alcohol, intoxicants, or related paraphernalia. 112 Use of any narcotics, marijuana, drugs, alcohol, intoxicants, or related paraphernalia, not prescribed for the individual by the medical staff. To be seen using or testing positive for the use of any narcotics, marijuana, drugs, alcohol, intoxicants, that has not been prescribed for the individual by the medical staff. 113 Possession of any narcotics, marijuana, drugs, alcohol, intoxicants, or related paraphernalia, not prescribed for the individual by the medical staff. To possess means to have on ones person or under ones dominion or control of the hard contraband identified. 114 Sexual assault of any person, involving non- consensual touching by force or threat of force. Sexual assault includes the unconsented intimate physical contact with another person which includes an attempt or threat of physical violence. 115 Destroying and/or disposing of any item during a search or attempt to search. Includes throwing items away from staff or flushing items when a search is being conducted or attempting to conduct a search. 196 Use of the mail for an illegal purpose or to commit or further a Greatest category prohibited act. Use of the mail to commit or aid in the commission of a crime or a Greatest category prohibited act. 197 Use of the telephone for an illegal purpose or to commit or further a Greatest category prohibited act. Using the telephone to commit or aid in the commission of a crime or a Greatest category prohibited act. 198 Interfering with a staff member in the performance of duties most like another Greatest category prohibited act. This charge is to be used only when another charge of Greatest severity is not accurate. The offending conduct must be charged as "most like' one of the listed Greatest categories prohibited acts. Interfering - to hamper, hinder, or disturb a staff member performing his duties. Must be related to 100 level activities. EFTA00039284 Code 199 Conduct Conduct which disrupts or interferes with the orderly running of the institution or the Bureau of Prisons most like another Greatest category prohibited act. This charge is to be used only when another charge of Greatest severity is not accurate. The offending conduct must be charged as "most like one of the listed Greatest categories prohibited acts. Any act of Greatest Severity level which is not specifically described in other prohibited acts listed above, but which causes disorder or turmoil in the operation of a prison. EFTA00039285 HHIIH Offense Elements 200 Escape from a work detail, non-secure institution, or other non-secure confinement, including community confinement, with subsequent voluntary return to the Bureau of Prisons custody within four hours. Departure from custody without permission or authority or before release; includes failure to follow instructions of staff as to the limits of the activity; or commission of an act which prevents the inmate from returning at the time and place prescribed (such as an arrest based on probable cause), and the inmate voluntarily returns within four hours. 201 Fighting with another person. A light' is a hostile, physical or verbal encounter or engagement between two or more persons. 203 Threatening another with bodily harm. A communication of an intent to inflict physical or other harm on any person or on property. 204 Extortion, blackmail, protection, demanding or receiving money or anything of value in return for protection against others, to avoid bodily harm, or under threat of informing To obtain anything of value from another induced by the wrongful use of actual or threatened force, violence or fear. 205 Engaging in sexual acts. Take part in intimate physical contact with self or another. 206 Making sexual proposals or threats to another. Offering or encouraging another to engage in a sexual act or in intimate physical contact; a threat is a communicated intent to inflict physical or other harm on the person or on property. 207 Wearing a disguise or a mask. Have on one's face or other portion of one's body an item which conceals, changes or alters identity or appearance. 208 Possession of any unauthorized locking device, or lock pick, or tampering with or blocking any lock device (includes keys), or destroying, altering, interfering with, improperly using, or damaging any security device, mechanism, or procedure. Possess - have on ones person or have under ones control. Tamper - to meddle with for purpose of altering, destroying, etc. 209 Adulteration of any food or drink. Adulterate - to debase or make impure. 211 Possessing any officer's or staff clothing. Possess - have on ones person or have under ones control or dominion. EFTA00039286 Code Offense Elements 212 Engaging in or encouraging a group demonstration. To participate or promote others to participate with two or more persons gathering together to support a cause. 213 Encouraging others to refuse to work, or to participate in a work stoppage. To promote or urge other inmates to refuse to work or participate in a work stoppage. 216 Giving or offering an official or staff member a bribe, or anything of value. Bribe - giving something of value to persuade or induce favor or action. 217 Giving money to, or receiving money from, any person for the purpose of introducing contraband or any other illegal or prohibited purpose. Contraband - anything an inmate is not permitted to have in his possession, i.e., not issued or not authorized to retain. 218 Destroying, altering, or damaging government property, or the property of another person, having a value in excess of $100.00, or destroying, altering, damaging life-safety devices (e.g., fire alarm) regardless of financial value. The $100+ value applies to both government and personal property; othenvise, it is a Code 329 offense. 219 Stealing; theft (including data obtained through the unauthorized use of a communications device, or through unauthorized access to disks, tapes, or computer printouts or other automated equipment on which data is stored). Stealing - to take or appropriate the property of another without permission or right. 220 Demonstrating, practicing, or using martial arts, boxing (except for use of a punching bag), wrestling, or other forms of physical encounter, or military exercises or drill (except for drill authorized by staff). "Martial' refers to war or warlike; we prohibit all but punching a bag because this conduct may be mistakenly perceived as fighting or may precipitate disruption or a disturbance. It also encourages militant group behavior which is inconsistent with security. 221 Being in an unauthorized area with a person of the opposite sex without staff permission. An area may be 'unauthorized'because of a written rule, an oral order or direction by staff, or because of circumstances. The 'person of the opposite sex' refers to inmates or visitors, not staff. A prohibited act described to cover a situation where two inmates of opposite sex at co-correctional institution are discovered in an inappropriate area, but before there is any evidence of sexual intent or content. EFTA00039287 Code Offense Elements 224 Assaulting any person (a charge at this level is used when less serious physical injury or contact has been attempted or accomplished by an inmate). Sec Code 101. Assault is an attempt or threat to do violence to another and includes battery or the unconsented touching of another. 225 Stalking another person through repeated behavior which harasses, alarms, or annoys the person, after having been previously warned to stop such conduct. A documented pattern of repeated behavior which harasses, alarms, or annoys a person after being ordered or previously warned to cease such conduct. 226 Possession of stolen property. To have in ones possession, control, or domain any stolen item(s). 227 Refusing to participate in a required physical test or required examination unrelated to testing for drug abuse (e.g., DNA, HIV, tuberculosis). Voluntary or intentional decision not to take part in a required physical test or examination unrelated to drug abuse or alcohol testing. 228 Tattooing or self-mutilation. To put indelible patterns on the skin; to injure, disfigure or make imperfect by removing or irreparably damaging parts of the body (wrist cutting falls within this offense). 229 Sexual assault of any person, involving non- consensual touching without force or threat of force. Sexual assault includes the unconsented intimate or non-sexual physical contact with another person which does not include a threat of physical violence. 23I Requesting, demanding, pressuring, or otherwise intentionally creating a situation, which causes an inmate to produce, display his/her own court documents for any unauthorized purpose to another inmate. Requesting, demanding, pressuring, or otherwise intentionally creating a situation, which causes an inmate to produce or display his/her own court documents for any unauthorized purpose to another inmate. 296 Use of the mail for abuses other than criminal activity which circumvent mail monitoring procedures (e.g. use of the mail to commit or further a High category prohibited act, special mail abuse, writing letters in code; directing others to send, sending, or receiving a letter or mail through unauthorized means; sending mail for other inmates without authorization; sending correspondence to a specific address with directions or intent to have the correspondence sent to an unauthorized person. Use of the mail in violation of the policy on mail regulations which circumvents mail monitoring procedures. EFTA00039288 Code Offense 297 Use of the telephone for abuses other than criminal activity which circumvent the ability of staff to monitor frequency of telephone use, content of the call, or the number called; or to commit or further a High category prohibited act. Using the telephone in violation of the policy on telephone regulations which circumvents telephone monitoring procedures. 298 Interfering with a staff member in the performance of duties, most like another High severity prohibited act. This charge is to be used only when another charge of High severity is not accurate. The offending conduct must be charged as "most like one of the listed High severity prohibited acts. See Code 198. 299 Conduct which disrupts or interferes with the security or orderly running of the institution or the Bureau of Prisons most like another High Severity prohibited act This charge is to be used only when another charge of High severity is not accurate. The offending conduct must be charged as most like* one of the listed High severity prohibited acts. See Code 199. EFTA00039289 Code Offense Elements 300 Indecent Exposure. Indecent means offending against recognized standards of propriety; exposure means to display; non-accidental display of genitals. 302 Misuse of authorized medication. To use authorized/prescribed medication in a manner contrary to instructions. 303 Possession of money or currency, unless specifically authorized, or in excess of the amount authorized. Possess - to have on ones person or under one's control. 304 Loaning of property or anything of value for profit or increased return. To grant temporary use for the purpose of gaining money or an advantage. 305 Possession of anything not authorized for retention or receipt by the inmate, and not issued to him through regular channels. To possess means to have on ones person or under one: dominion or control; although notice of what constitutes contraband generally is presumed, look to policies, rules, procedures and law to establish where reasonably questioned. 306 Refusing to work or accept a program assignment. Declining or expressing a determination not to perform assigned tasks; also, includes program assignments like general population and educational classes. 307 Refusing to obey an order of any staff member (may be categorized and charged in terms of greater severity, according to the nature of the order being disobeyed, e.g., failure to obey an order which furthers a riot would be charged as Code 201, ( Fighting; refusing to provide a urine sample when ordered would be charged as 110). Declining or expressing a determination not to follow commands (instructions and restrictions) of a BOP employee and others placed in a position of authority by a BOP employee. 308 Violating a condition of furlough. To break or fail to follow rules listed on the furlough form. 309 Violating a condition of a community program. Failure to follow established rules other than those set forth on furlough papers; usually CCC's. 310 Unexcused absence from work or any program assignment. Not at an assigned placed at a certain time. 311 Failing to perform work as instructed by the supervisor. Similar to 319; use when specific orders of the work supervisor are violated. 312 Insolence towards a staff member. Contemptuously rude or impertinent in behavior or speech toward a staff member. 313 Lying or providing a false statement to a staff member. Self-explanatory offense; must disrupt security, order or discipline. EFTA00039290 Code Offense Elements 314 Counterfeiting, forging or unauthorized reproduction of any document, article of identification, money, security, or official paper (may be categorized in terms of greater severity according to the nature of the item being reproduced; (e.g.., counterfeiting release papers to affect escape, Code 102). Self-explanatory offense as described. 315 Participating in an unauthorized meeting or gathering. To take part in meeting or gathering of inmates without staff permission. 316 Being in an unauthorized area without staff authorization. Located in a place that an inmate is forbidden to be in because of orders, policies or established procedures. 317 Failure to follow safety or sanitation regulations (including safety regulations, chemical instructions, tools, MSDS sheets, OSHA standards). Nonperformance of established rules concerning safety and sanitation. 318 Using any equipment or machinery without staff authorization. Self-explanatory offense as described. 319 Using any equipment or machinery contrary to instructions or posted safety standards. Similar to 317; specifically covers use of equipment or machinery. 320 Failing to stand count. Absent during count or failing to stand up during count. 321 Interfering with the taking of count. Any action which hampers or inhibits staff from taking a count other than those actions listed in Code 320. 324 Gambling. To play any game of chance for stakes. 325 Preparing or conducting a gambling pool. See Code 324; to be used where evidence establishes the inmate is responsible for setting up or running the game of chance. 326 Possession of gambling paraphernalia. See Code 324; where evidence only shows possession of gambling items, but not used in a game. 327 Unauthorized contacts with the public. Self-explanatory offense: to be used where an inmate needs permission to contact someone outside the institution. 328 Giving money or anything of value to or accepting money or anything of value from another inmate, or any other person without staff authorization. Self-explanatory offense as described. See also Code 217 where evidence shows the purpose of giving is for introducing contraband or other illegal purpose. EFTA00039291 Code Offense Elements 329 Destroying, Altering, or Damaging Government Property, or the Property of Another Person, Having a Value of $100 or Less. Self-explanatory offense; see Code 218 for higher severity offense for value more than 5100. 330 Being Unsanitary or Untidy; Failing to Keep One's Person and One's Quarters in Accordance with Posted Standards. Self-explanatory offense: used where living area is unclean or not maintained in an acceptably clean and tidy manner. 331 Possession, Manufacture, or Introduction of a nonhazardous tool or other Non-Hazardous Contraband (tool not likely to be used in an escape attempt or to serve as a weapon capable of doing serious bodily harm to others, or not hazardous to institutional security or personal safety; other nonhazardous contraband includes such items as food or cosmetics). Self-explanatory offense; see Code 104 for description of possession, manufacture or introduction. See also Code 108 for greater severity offense. 332 Smoking where prohibited. Smoking in an area that is designated by policy to be a non- smoking area. 333 Fraudulent or deceptive completion of a skills test (e.g., cheating on a GED, or other education or vocational skills test). Self-explanatory offense; used when cheating on an educational or vocational test. 334 Conducting a business; conducting or directing an investment transaction without staff authorization. To direct, engage, carry on an occupation, profession, or trade. Occupation means the person's usual or principal work. A profession usually refers to an occupation which requires extensive education. Trade refers to buying, selling, or exchanging commodities or other items. 335 Communicating gang affiliation; participating in gang related activities; possession of paraphernalia indicating gang affiliation. Used when an inmate is wearing clothing, items, etc. to show gang affiliation, making hand signals, etc. Use other higher and greater severity codes when behavior involves fighting, assaults, and group demonstrations. 336 Circulating a petition. Circulating a petition to protest conditions or to effect a change of some sort. 396 Use of the mail for abuses other than criminal activity which do not circumvent mail monitoring; or use of the mail to commit or further a Moderate category prohibited act. Use of the mail in violation of policy which does not circumvent mail monitoring procedures. 397 Use of telephone for abuses other than illegal activity which do not circumvent the ability of staff to monitor frequency of telephone use, content of the call, or the number called; or to commit or further a Moderate category prohibited act. Use of the telephone in violation of policy which does not circumvent telephone monitoring procedures. EFTA00039292 Code MET 398 Interfering with a Staff Member in the Performance of Duties, Most Like Conduct must be of the Moderate severity nature. This charge is to be used only when another charge of moderate severity is not applicable. See Code 198. 399 Conduct which Disrupts or Interferes with the Security or Orderly Running of the Institution or the Bureau of Prisons, Most Like Conduct must be of the Moderate severity nature. This charge is to be used only when another charge of moderate severity is not applicable. See Code 199. EFTA00039293 Code Offense Elements 402 Malingering, Feigning Illness. Malingering means to feign illness. 404 Using Abusive or Obscene Language. Using coarsely insulting, indecent or lewd language. 407 Conduct with a Visitor in Violation of Bureau Regulations. Inappropriate actions with a visitor after notice of written rule (would include excessive sexual contact short of engaging in a sex act, Code 205). 409 Unauthorized Physical Contact. Unacceptable physical contact, usually with another inmate; see also Code 205, Engaging in Sexual Acts, and Code 407 for visitor related activities. 498 Interfering with a Staff Member in the Performance of Duties, Most Like Conduct must be of the Low Moderate severity nature. This charge is to be used only when another charge of low moderate severity is not applicable. See Code 198. 499 Conduct which Disrupts or Interferes with the Security or Orderly Running of the Institution or the Bureau of Prisons, Most Like Conduct must be of the Moderate severity nature. This charge is to be used only when another charge of moderate severity is not applicable. See Code 199. EFTA00039294