Poppy-Seed Bagel Triggers Kafka-esque Nightmare

The prison system finds it hard to say goodbye.

Nicole Defontes pulled her life back together in dramatic fashion after serving 4½ years in federal prison for participating in a cocaine deal with her then-boyfriend.

But if it weren't for the work of some determined Miami criminal defense attorneys and for a federal judge who was willing to listen, Defontes would be behind bars, unable to defend herself or present evidence to prove her innocence, and wrongly incarcerated for eating a poppy-seed bagel that produced a false positive on a drug test.

When her case landed before U.S. District Judge Marcia Cooke on a habeas corpus petition to remove Defontes from the clutches of the U.S. Bureau of Prisons, the jurist appointed by President George W. Bush was outraged.

"When this happens in other countries, we call up Amnesty International," Cooke said at a hearing a year ago. "But for the fact of this defendant having resources, she would be in the FDC [federal detention center] supervised release gulag."

It's not the mistake that's disturbing, it's government officials' refusal to admit a mistake is possible.

Fridman said the halfway house where she tested positive had a history of irregular testing.

The U.S. attorney's office, which represented BOP, would not turn over the lab report, forcing litigation. "They basically told us, 'You have to sue us,'??" Fridman said…

Even with the money to marshal a defense, it wasn't easy for Defontes to take on the Bureau of Prisons. Fridman, a former federal prosecutor, claimed BOP officials were vindictive when Defontes tried to exercise her constitutional right to defend herself.

"BOP tried to send Nicole out of state right after we filed the lawsuit. We had to get a court order to make them keep her there. She was about to board the bus," Fridman said.

Fridman said he was astonished by one claim lodged by the Bureau of Prisons — she had not attended four drug counseling sessions while she was jailed due to the drug test results. Fridman said the FDC never offered those sessions.

Cooke determined Defontes didn't test positive under BOP policies. She tested 0.1 micrograms per milliliter, but a positive drug test for opiates for inmates is 0.3 mpm or above.

"The BOP person in charge of the early-release program didn't even know about the cutoff," Fridman said.

Still BOP officials were determined to re-incarcerate a woman who had been a stellar inmate.

The BOP was looking for an excuse to drag her back in, Defontes said.

Fridman noted drug rehabilitation programs — from halfway houses to drug counselors to drug-testing facilities — make money off the system.

In her ruling, Judge Cooke added that it's likely Defontes isn't the only person this has happened to. She was just lucky enough to have a determined, well-funded law firm defending her.

Comments

[fresnodan]

Is our judiciary so ignorant that they have never seen the infamous Seinfeld episode???
http://www.tv.com/seinfeld/the.....mmary.html

[fresnodan]

Seriously though, why aren't any of these individuals at the bureau of prisions investigated, prosecuted, convicted....or at least reprimanded?

Ow, I hurt myself laughing...prosecution is for the little people.

[Barely Suppressed Rage]

Color me unsurprised.

Really, Radley, you're going to have to start doing better and finding more outrageous and extreme stories to tell us about - I'm starting to become numb to the bureaucratic incompetence and outright blatant violations of individual civil rights committed by government officials supposedly sworn to defend and uhpold those very rights.

I mean, no dogs were even shot here.

I hereby nominate this combination of symptoms to be recognized by the medical community as a new psychological condition and mental state - to be known henceforth as "Externally Induced Balko Syndrome."

[sloopyinca]

I was thinking of Irritated by Balko Syndrome because I get IBS every time I read about these fucking bastards.

[Pip]

I'd just go with Irritated Balko Syndrome (IBS) because I suspect Balko is irritated as well.

[Abdul]

The BOP actually makes non-consumption of poppy-seeds a condition of furlough because they fear that they will be used to mask drug test results.

See: http://www.snopes.com/medical/drugs/poppyseed.asp

See also: http://www.bop.gov/policy/progstat/5280_008.pdf
Form BP-S291(52) contains, as a Special Instruction for all furloughs, the
following Condition 12: "It has been determined that consumption of poppy
seeds may cause a positive drug test which may result in disciplinary
action. As a condition of my participation in community programs, I will
not consume any poppy seeds or items containing poppy seeds." Other
Special Instructions may be established as warranted.

[Barry D]

It seems to me that a drug test that gives false positives for poppy seeds should not be used for anything, least of all putting people in prison.

[Cyto]

The positive results are not false. Poppy seeds contain heroin. The tests can detect it. That's why the levels are important.

Of course, if they would just pull their heads out of their asses an realize that this is a "nunya" they'd be a lot better off.

Nunya: Short for "none of your" - as in what I choose to eat is nunya business.

[Devilbunny]

To be precise, poppy seeds contain morphine and codeine. Heroin is metabolized to morphine by the body, and so the further metabolism products are the same.

[sloopyinca]

I've always had a problem with shit like this. They take the rights of someone to consume a legal product away to make their job easier.

It's the same as people who get DUIs. They have to go to AA meetings (Church and State, hello?) and have to take drug/alcohol tests randomly. If alcohol shows up, they are sent to jail. It is legal to consume alcohol, but we are gonna send people to jail for doing it because they committed a crime some other time. I do not understand how we let this shit pass constitutional muster.

Could one of you lawyers explain to me how they can ban the otherwise lawful consumption of something as conditions of probation? Seems like Equal Protection is being undermined.

[West Texas Boy]

I think the reasoning is, "we could just go ahead send/keep you to/in jail."

[West Texas Boy]

and

[sloopyinca]

But once someone fulfills the obligations of their sentence, these other provisions are made that continue to punish. Also, can someone say, "No, I don't want to do these things, so I'll serve the rest of my sentence," on grounds of religious influences in AA? In many places, that is the only option for treatment and they have an overt religious acknowledgement as part of their 12-step bullshit.

Seems to me a condition of their early release is an acceptance of a higher power.

[skr]

I believe you are still serving your sentence while on probation. You just aren't in prison during it. So they are really offered a choice (which is no choice at all) of staying in prison or leaving prison and not engaging in certain, albeit legal, activities.

[sloopyinca]

But they are forced to accept religious tenets as part of their probation, no?

[Pablo]

Every state court that has considered the question has ruled that 12 step programs are religious and a probationer cannot be compelled to participate in them. In reality the requirement is almost never challenged because the only thing worse than being on probation is being incarcerated and most defendants are willing to do the song-and-dance if it means they serve their sentence outside of jail.

Some of the more enlightened judges I have dealth with will require a probationer to participate in a 12 step program or "a secular substance abuse treatment program." Unfortunately, outside the big cities, pretty much all the programs available are 12 step oriented.

You can check out Stanton Peele's web site for lots of good stuff on the unconstitutionality and futility of coerced treatment, and problems with 12 step programs in general.

[Ballchinian]

Penn and Teller did an entire episode of Bullshit! about this.

[Brett L]

Do what one of my coworkers did. Just have random people sign your AA sheet. How can they check? AA doesn't have a duty to report your presence. And, if I understand correctly, they consider it part of their code to NOT report your presence.

[clark]

yeah but that is probably a felony, "falsification of a government document"

[SDN]

Only if they catch you.

We all commit multiple felonies evewry day; unless you annoy a bureaucrat nothing happens.

Government of men not laws.

[Pablo]

That's correct, the sentence is served on probation instead of jail and courts can attach "reasonable" restrictions. In Georgia, where I practice, ALL probationers, regardless of the type of offense, are prohibited from consuming alcohol as a condition of probation. This includes offenses which have nothing to do with alcohol or drugs. Alcohol consumption is considered a "vicious or injurious habit" and is thus prohibited if you are on probation. This is another example of the neo prohibitionist/temperance mentality.

[The Mossy Spaniard]

I didn't know Georgia took it that far. I guess I'm not surprised, per se; probationers have to endure some totally unreasonable conditions everywhere. In NC, if you are on probation, you must either have a job or be a student, and they don't allow you to possess any weapon of ANY kind, i.e. if your PO doesn't like th looks of the baseball bat you have in your closet, you're SOL.

[Pablo]

Yes, a lot of it is about control, and making someone's life miserable, as opposed to restrictions that are legitimately related to the specific case.

[Abdul]

Could one of you lawyers explain to me how they can ban the otherwise lawful consumption of something as conditions of probation?

You have the right to free association. You lose that when you commit a crime. As a condition of your release (whether on probation in lieu of imprisionment, or on parole, or furlough, etc), the government may no longer incarerate you, but put lesser restrictions on you. for example, the government could restrict your right to free association to non-felons, or restrict your access to otherwise legal firearms. There's no double jeopardy as long as the restriction comes in lieu of, or continues out of your original conviction.

The poppy seed thing is along these lines.

[sloopyinca]

Thanks for the heads up.

[Michael D]

this is why they test and there is a cut-off in the test Abdul

[Tulpa]

Still BOP officials were determined to re-incarcerate a woman who had been a stellar inmate.

Maybe that's why they wanted to re-incarnate her. Good inmates are hard to find these days.

[In Time of War]

Re-incarnate her as what...a frog or something? I'm pretty sure that even if they had the power, it would be unconstitutional.

[MNG]

Naw, you just need a broad reading of the Commerce Clause. Reincarnation involves the soul traveling inter-state (from the state of one being to another).

[sloopyinca]

^^Proof that even a blind hog finds an acorn every now and then.^^

[The Gobbler]

Ouch!

[cynical]

+1

[Trespassers W]

OOOOHHH YES!!! Thanks for my daily kick in the groin!

[P Brooks]

"When this happens in other countries, we call up Amnesty International,"

Sweet.

[Tulpa]

And then AI sends the other country a nasty letter, and the person in question remains in prison indefinitely because no one cares.

[Cyto]

Hey, that's not fair.

They put it on a list of incidents and might even call a press conference too...

[CoyoteBlue]

I keep telling my girlfriend, a blue-team rah-rah girl, that "Brazil" is a documentry.

And she calls ME a kook.

[Barry D]

Blue-team rah-rah girl? She must be a hell of a lay, and even then I probably couldn't deal.

[Nick]

My buddy has a blue team rah-rah wife. Guess who wears the pants in that family? I've rarely seen a previously independent man more whipped than he.

[J sub D]

Democrat women are easier to get into bed. Republican women are kinkier when you do. It's worth the extra effort to fuck the GOP.

[Tulpa]

And Libertarian women...well, I think we know how that goes.

[sloopyinca]

I always suspected Greenspan was a submissive, but where is BIG OL Mr Kannish!!?

[PicassoIII]

Ahem,
http://libhotties.com/
Ms Keaton, Abel, etc.

[fairlyoldguy]

A nephew of mine was on probation in PA and was told that it was OK to eat poppy seed bagels, that they would not give a positive drug result. Are there some testing methods that can distinguish between bagels and drugs, or is there some other explanation? Inquiring minds want to know.

[Episiarch]

I wouldn't believe a single thing a probation officer tells you. They usually don't know shit. I would tell your nephew to not eat poppyseeds because they told him it was ok.

Probation officers like to "gotcha" their charges because it looks to their superiors as if they are doing their jobs. If you nephew was caught violating his drug test, that looks good on the PO's record.

[Bingo]

I suppose it depends on what sort of kit they used and what metabolites they were testing for. Mythbusters did an episode on this with an off-the-shelf kit and tested positive for opiates after eating a poppy-seed bagel.

During my stint with probation (which probably catalyzed my becoming libertarian) we were told not to eat poppy-seed anything, not to chew gum or eat anything containing sugar alcohols, no cold medicine, no energy drinks, don't drink too much water, don't take too many vitamins.

You could violate probation if your piss was too diluted or if they thought you were masking diluted piss with vitamins (one of the B-vitamins is really good at making it turn yellow).

Zero tolerance is the product of very very small authoritarian minds.

[Tulpa]

In that MB episode, the drug test guy said that for employment drug tests, they divide the sample in half, and if the quick and dirty test on one half comes up positive, they send the other half for a more reliable test to confirm the positive.

[West Texas Boy]

Zero tolerance is the product of very very small authoritarian minds.

It's been repeated so much now that it's a cliche, but the old trope about, "the strongest human urge known to man is the urge to tell other people what to do," which is where this kind of stuff comes from.

[West Texas Boy]

A predicate would be nice in my second sentence, no?

What the hell is wrong with my typing and editing today?

[West Texas Boy]

Or only sentence.

I give up.

[Nick]

I had a prospective boss call me to tell me he wanted to offer me a job and said company policy required that I take a drug test within 24 hours of the offer. He asked if I needed him to call back in a few days. I didn't need that but I thought it was interesting that this guy would offer that just to hire me. He was a pretty laid back boss I came to find out. Made that call less surprising after the fact.

[Wacky Hermit]

What do you do if you're diabetic or pre-diabetic then? A lot of sugar-free or sugar-reduced stuff has sugar alcohols in it.

[wylie]

I guess I'd be more concerned about the jackboots remembering my insulin...

[speedwell]

I'm diabetic and I use ONLY sugar alcohols where possible (erythritol, xylitol, tagatose, trehalose, and mannitol in the order of greatest to least use). The particular danger of erythritol in particular is not that it's an alcohol (they are not the kind that get you drunk at all) but that it is rocket fuel, as erythritol tetranitrate. Or at least it's fun to think about.

[wylie]

Note to self: Diabetics and Open Flame Do Not Mix.

[Andrew S.]

From the article, it sounds like she didn't test positive, but they tried to punish her anyways:

Cooke determined Defontes didn't test positive under BOP policies. She tested 0.1 micrograms per milliliter, but a positive drug test for opiates for inmates is 0.3 mpm or above.

[Paul]

But if it weren't for the work of some determined Miami criminal defense attorneys and for a federal judge who was willing to listen, Defontes would be behind bars, unable to defend herself or present evidence to prove her innocence, and wrongly incarcerated for eating a poppy-seed bagel that produced a false positive on a drug test.

I'm still confused about this. Wasn't this notion largely debunked.. on mythbusters if I recall. That someone would have to eat like 15 poppyseed buns to get a positive hit on a drug test?

[Gizmo]

No, quite the opposite... Mythbusters confirmed that it takes minimal amounts of poppy seeds to test positive for opiates with some test kits: http://www.youtube.com/watch?v=FMqQLgw7Uz4

[Paul]

Thank you. I was too busy (and lazy) to google it.

[R C Dean]

she would be in the FDC [federal detention center] supervised release gulag."

I like this judge.

[Gizmo]

I was tripped up by a poppy-seed muffin at work during a random drug test and tested positive for opiates. I'm a straight laced Conservative, and my then unrepentant 60's liberal boss thought it was as funny as heck that _I_ was the one that was "busted". Fortunately, due to the muffin's popularity in the company cafeteria, the occupational health department understood my plight. I was given a 2nd test a week later and "passed".

Later they decided to cut down on all of the poppy-seed false positives by only selling the muffins on Fridays to allow the tell-tale poppy-seed metabolites a chance to clear the body over the weekend. In addition, they moved all drug testing to Monday-Thursday!

[fish]

Well that's just an invitation to abuse you hippy! Sure first it's Monday-Thursday, then the next thing you know everybody is perpetually stoned and there's a black guy in the White House!

I'll be watching you.

[wylie]

next thing you know everybody is perpetually stoned and there's a black guy in the White House!

Funny how that happened out of order.

[Mark Buehner]

Name names. Its the only way to shame these people and warn others.

[Michael D]

The names are in the article.....the warden who tried to "put her on the bus", to the community manager, and the half way house, which is the Salvation Army in this case. This is being covered from DC to Miami

[sloopyinca]

Gratuitous dog shooting to make Balko's story complete. (puppy get's his at 3:00)

[?]

I'm still confused about this. Wasn't this notion largely debunked.. on mythbusters if I recall. That someone would have to eat like 15 poppyseed buns to get a positive hit on a drug test?

True. Metabolite test results are highly random, and not inherently meaningful, so they're interpreted. Some people are allowed to poppy-seed-bagel their way out of shit, and some aren't. The myth of the food-borne false positive is necessary, because it makes testing sound like it works.

[The Juice]

Not that I don't applaude the judge or think that the probation guys were nothing short of ridiculous thuggocrats, but call me skeptical about the "bagel".

She was an addict moving up from mere use to full on sales, and addicts lie and relapse. I'd bet a whole case of bagels that she's re-arrested on new drug related charges in the next 5 years.

[skr]

But those who like coke don't necessarily like heroin for the same reason they may not like weed (uppers vs. downers).

[JustJosh]

+1

No "coke head" is going to test positive for opiates...its counter intuitive to the high they enjoy.

Besides she was busted for a cocaine deal "with her boyfriend". Who's to say she wasn't just in the wrong place at the wrong time.

To assume she was an opiate addict because she was once busted in a coke deal is an example of the ignorance which guides the drug policies of this country.

[Speedball]

Bullshit.

[Michael D]

She "facilitated" the deal because she speaks Spanish. She was not caught with the drug....read the case. That's not to say she isn't guilty, but she did her time and it serves no purpose for her to serve anymore time. This is a cover up by the BOP and now the Dept. of Justice.

[The Juice]

I'm not defending the BOP or DoJ. Trust me - I see this stuff every day, and I find it as outrageous as everyone else here. Should she be convicted or jailed because of that test? No way in hell - I think those responsible for this case making it past an initial report have no business with badges.

But I also believe that Occam's Razor is aptly applied here, and that it's more likely that this woman with a felony drug history relapsed than that she overindulged at Einstein Bros. I'm just saying. To ignore this likely reality is to limit your credibility, and therefore makes it harder, not easier, to get saner drug policies implemented.

[R C Dean]

more likely that this woman with a felony drug history

Helping a buddy hook up is not exactly the same thing as bangin' in Compton, Juice.

[The Juice]

Most people with felony drug histories aren't "bangin' in Compton". Most of them ARE addicts, however, with pretty nasty habits that never really go away. If someone with no criminal history or other indicia of prior hard drug use pops a UA with minimal amounts of opiates, OK, I'll say it must be a bagel. A convicted felon who is expanding from their own bodily temple to "helping a buddy hook up" (aka a drug dealer), and one as young as her at that, well, I'm going to lay odds every time that it ain't no poppy seed. And 99 times out of 100, I'll be right. In fact, I'd be more apt to believe a large, organized dealer in Compton doesn't use than someone engaged in this kind of low level activity.

She was a victim of Statism. But let's not pretend that someone slingin' coke even to a few buddies is the functional equivilant of the guy sneaking some beers during Prohibition. Anyone with any real world experience knows this isn't true, and it limits the credibility of good libertarians who are rightly trying to push for saner drug policy.

[Coeus]

It's cool. We get it. The drugs you like are obviously safe and easily handled. It's those other drugs that are bad. Could you make me a list? Please be quick about it though, cause I was wanting to get high tonight and I wouldn't want to accidentally take any of the "bad" drugs.

[The Juice]

It' not about the drugs, although, yes, there is a vast difference between alcohol (which I like) and weed (which I don't) and things like heroin and meth. It's about being careful which poster children you pick to rally around when attacking (correctly) things like prosecutors hiding evidence or unelected bureaucrats at BoP deciding to enforce rules which don't actually exist. If you want to make a (likely) relapsing convicted drug dealer into your "victim" in an attempt to influence drug policy, be my guest - but it will ultimately wind up being self-defeating to your own cause, assuming your cause is across the board drug legalization.

[Coeus]

Hate to break it to ya chief, but addiction rates are about the same for alcohol, meth and heroin. And there's very little difference between a violent drunk and a violent meth user. So to this:
But let's not pretend that someone slingin' coke even to a few buddies is the functional equivilant of the guy sneaking some beers during Prohibition.
I say that we don't have to pretend. It is absolutely equivalent. Your uninformed prejudices simply blind you to that fact.

[G M]

Wouldn't "Dealing cocaine triggers Kafka-esque Nightmare" be more accurate?

[Michael D]

So, here is a girl who broke the law, paid her dues to society, gets a job and is doing well. And lets assume that she signed something (because getting out of prison you sign more things than you do at a real estate settlement) and she eats a bagel. So the nay sayers say she should have know better....send her back to prison. Well, that will teach her a lession....and the taxpayers will teach it to her at a cost of about $100K to spend the additional time in jail instead of working and paying TAXES. If you read the article it clearly shows that the Judge can read what the cut-off is and sees that the BOP tried to cover this up and out spend her family to win. And you people find this just and logical?

[colson]

Come on. No one pointed out how friggin hot the girl is? Habeus Corpus indeed! Now if we could only get her to take a pic puckering up to some sea life.

[Ben]

It took this comment to get me to click through; she's got a Maura Tierney kinda thing going on.

[Fat Crack Ho]

The DOT, recognizing that poppyseed bagels could register a false positive for opiates, raised the cutoff level (for a positive result) of the metabolite tested for by a factor of ten. Why the BOP hasn't done the same is beyond me . . ..

[Abdul]

They're combatting drug addiction AND obesity in former inmates.

Kudos, BOP!

[tead-off]

Child Protective Services has the same distorted incentive system, with the same results - guilty until proven innocent. A local businessman friend adopted a number of hard-to-place kids (minorities, born drug-addicted, etc) and was given the "adoptive parent of the year" award by CPS. Then they took his kids while he was sitting in the CPS office waiting for an appointment. Because he had resources he was the FIRST family in the HISTORY of the county to get his kids back in less than 6 months. Turned out the school filed a complaint because he refused to pull his mentally-handicapped kids out of standardized testing, threatening the school's average.

[Sardondi]

The poppy-seed positive-for-opiates is actually fairly well known to those persons subject to urinalysis as well as defense attorneys. False positives are almost always false issues. They are extremely rare; and poppy-seed is one of the very, very few substances which will cause a false positive for a controlled substance, despite the hundreds of futile suggestions, such as Lomotil or Sudafed, made by authors of books with titles like "Beat The Drug Test!", and "Pee Clean!", purchased in their fraudulent thousands by anxious and ill-informed defendants due to undergo court-ordered urinalysis.

"False positive" is a very common defense to revocation for controlled substance use while on pre-trial or supervised release. But most judges know that poppy-seed bagels will result in a miniscule positive result, if any, and can tell the truth of the matter from the blood serum levels reported in the test results.

What broke down here was not "the system" or the laws, bu the people who were administering and executing them; from the BOP to the US Attorney's Office. First, as a retired career Assistant US Attorney, (AUSA) I find it simply unconscionable that the AUSA responsible for the revocation wouldn't provide the actual test results to the defendant. The magistrate judge at a preliminary stage should have ordered that be turned over ASAP; and if the government refused, a recommendation for disciplinary action against the responsible AUSA should have followed apace. (By strict DOJ policy such an order would automatically bring an enquiry by the Public Integrity Section of DOJ, which is to an AUSA as daylight to a vampire. It's a terrifying process, and most AUSAs who know their fundaments from a cavity in the earth will do right if faced with the likelihood of facing PI.)

And for BOP to have been as incompetent and as vindictive is a situation that should have been addressed by the District Judge. There's nothing like getting an order to appear at a "Show Cause Hearing" which will get the full attention of an institution's warden.

The process is okay - but sometimes government employees on the criminal side need to be forcefully reminded that they are administering justice, not retribution. In more than 25 years of prosecution I found that if I looked at my job as a duty to search for the truth, things tended to work themselves out.

[wylie]

a recommendation for disciplinary action against the responsible AUSA

Just the recommendation though. They get to skip the actual discipline part, right?

[The Juice]

As a public defender, I say "hear hear!" to this.

[chchch]

Finally, someone who recognizes that there is profit in keeping people in the judicial system and that profit driver is a powerful driver for the great number of people who are entangled in a system that is difficult to escape from. Few people are lucky enough to have the resources to escape this system. Probation officers routinely schedule appointments to force violations. The court ordered cost of being in the judicial system forces violation such as mandated classes fees, probation fees, court ordered counseling cost, and UA fees. These cost are imposed on those that are virtually unemployable causes missed payments and more probation violations. Try to keep a job, which is required or another probaton violation, when you are required to submit to UA test during business hours several times a week. Miss an UA and another probation violation. I wish this so called justice system had the exposure so most would understand how it feeds off of people.

[Wallabee]

> But they are forced to accept religious tenets as part of their probation, no?

AA and other 12step programs aren't religious per se. They acknowledge a generalized "higher power" in order to emphasize one's own powerlessness to overcome addiction. But, in spite of the fact that many religious institutions support 12step programs, they aren't connected to any religion.

If you want, your "higher power" could be "Science", "Medicine", or "The Wizard of Oz",etc. The point is just recognizing that YOU aren't the "higher power."

A good real-life example of this is a friend of mine who claims his "higher power" is (ex-Fleetwood Mac singer) Stevie Nicks.

[????? ??????]

Thanks