On September 17, 1999, Homen again dialed (718) 335-1520 and spoke with
a female. (See Incident Report No. 714849, dated September 17, 1999,
attached as Ex. C to Pierro Decl.) She stated to Homen that she was
having trouble paying for the phone bills. Homen asked about whether "he
was up to date." We then asked, "Well, can I get through?," to which she
replied, "Wait awhile." Later that same day, Homen again called (718)
335-1520. A female answered and he asked for a collect call. He was then
transferred, after a short pause, to his son.
On September 24, 1999, Homen was served by hand with copies of the
incident reports for May 27 and May 28, 1999. On September 17, 1999 Homen
was served by hand with a copy of the incident report for September 17,
1999. All three incident reports were referred to the DHO for
On September 29, 1999, Homen was advised of his rights before the DHO
by Case Manager D. Ford. (See Forms entitled "Inmates Rights At
Discipline Hearing," dated September 29, 1999, attached as Exs. D, E and
F to Pierro Decl.) Homen acknowledged those rights by signing each form.
At Homen's request, Ricardo Sedano, a full-time Bureau of Prisons
employee, was assigned to represent him at the hearing. (See DHO
Reports, dated December 1, 1999, attached as Exs. H, I and J to Pierro
Decl.*fn1 Sedano was provided access to the tape recorded conversations
as well as the incident reports. Sedano listened to the tapes and
translated them himself.*fn2
A disciplinary hearing was conducted on October 19, 1999, regarding all
three incident reports. At the hearing, Sedano submitted a memorandum for
review by the DHO. (See Memorandum by Ricardo Sedano, dated September
29, 1999, attached as Ex. G to Pierro Decl.) Sedano's memorandum
indicated that he attempted to contact the two witnesses Homen
requested. Those witnesses were Homen's son and daughter, Juan Pablo
Perafan Homen and Marta Angelica Perafan Homen. In the course of seeking
to contact these witnesses, however, Sedano learned that Homen had been
making three-way calls.
In the course of his representation of Homen, Sedano dialed (718)
335-1520, the number Homen listed as the witnesses' contact number. A
woman identified as "Lisa" answered the phone. Sedano identified himself
and told the woman that he needed to speak with Juan Pablo or Marta
Angelica, Homen's children. The woman asked the counselor to wait. A
moment later she stated that she could not find them. The counselor asked
if they had their own number. The woman provided the counselor with the
phone number (718) 523-4304. The woman again asked the counselor to hold.
At that time, the counselor was transferred to another line. When he was
transferred, Sedano noted that there was a delay. He indicated that such
delay is what he experiences when making international calls to his
family in South America. After the transfer, Sedano spoke with a man
named Carlos, who stated that he was Homen's son. Sedano informed Carlos
that he needed to speak with Juan Pablo or Marta Angelica Carlos stated
that they were not there, so Sedano told Carlos that he would call back
later. After finishing that conversation, Lisa again spoke on the line.
Sedano told her he would call back later.
Sedano then called (718) 523-4304 and requested to speak with Marta
Angelica. A female answered the phone and identified herself as Marta
Angelica. Ms. Angelica identified herself as Homen's ex-wife. Sedano
explained that he was trying to get in touch with Juan Pablo. Ms.
Angelica stated that as far as she knew, all of Homen's sons lived in