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United States v. McDonough

United States District Court, D. Massachusetts

October 19, 2016

UNITED STATES OF AMERICA,
v.
RICHARD W. McDONOUGH, DEFENDANT.

          MEMORANDUM AND ORDER

          WOLF, D.J.

         On September 9, 2011, the court sentenced Salvatore DiMasi to eight years in prison and Richard McDonough to seven years in prison for conspiring to use DiMasi's office as the Speaker of the Massachusetts House of Representatives to commit extortion, mail fraud, and wire fraud. The court subsequently denied DiMasi and McDonough's motion for release pending appeal. See United States v. DiMasi, 817 F.Supp.2d 9, 12 (D. Mass. 2011). Dimasi and McDonough each began serving his sentence on November 30, 2011. The First Circuit subsequently affirmed the convictions and the sentence imposed on each defendant. United States v. McDonough, 727 F.3d 143, 166 (1st Cir. 2013).

         In McDonough's Presentence Report (the "PSR"), the Probation Officer wrote that McDonough told her that he had tried cocaine in the 1960's and that he had last used marijuana in the 1990s. See PSR, ¶107. In addition, the Probation Officer wrote that:

The defendant denies ever using any other controlled substances. He advises his use of alcohol, marijuana, and cocaine has never been problematic and that he has never participated in, or needed any, substance abuse counseling.

PSR, ¶108. In view of this information, the court did not order drug treatment as a condition of McDonough's two-year period of Supervised Release.

         On October 13, 2016, the government filed on behalf of the Director of the Bureau of Prisons (the "BOP") a motion to reduce DiMasi's sentence to time-served pursuant to 18 U.S.C. §3582 (c) (1) (A) (i), based upon a reported deterioration of DiMasi's physical health and difficulty in functioning in prison (the "DiMasi Motion"). Without the motion, DiMasi's projected release date would be November 17, 2018.

         The court assumed that McDonough would be released in about November 2017. However, while working on the DiMasi Motion, the court learned that the BOP had reduced McDonough's sentence because he had completed a 500 hour Residential Drug and Alcohol Abuse Program (the "RDAP"), released him to a Residential Re-entry Center in July 2016, and later placed him in home confinement until he completes his reduced sentence on January 3, 2017.

         More specifically, the court consulted the Probation Office and reviewed the attached BOP May 18, 2016 Progress Report concerning McDonough (the "Progress Report"). It states that the BOP allowed McDonough to participate in the RDAP and then exercised its discretionary authority, under 18 U.S.C. §3621(e)(2)(B), to reduce his sentence. See Progress Report at 8. Among other things, this raises the question of whether the court should conduct a hearing to determine if McDonough's conditions of Supervised Release should be modified to include drug treatment. See 18 U.S.C. §3583(e)(2); Fed. R. Crim. P. 32.1(c).

         BOP regulations provide that to participate in the RDAP and be eligible for early release, " [i]nmates must have a verifiable substance use disorder." 28 C.F.R. §§550.53(b)(1), 550.55(a)(2). BOP policy requires that, when an inmate is being considered for the RDAP, a Drug Abuse Treatment Specialist must determine, among other things, "if . . . [t]here is documentation available to verify the inmate's use of specific drugs, including alcohol [and] [t]here is verification that can establish a pattern of substance abuse or dependence." Federal Bureau of Prisons, Program Statement 5330.11, Psychology Treatment Programs, §2.5.8(2) (March 16, 2009), https://www.bop.gov/policy/progstat/5330011.pdf (the "RDAP Policy") . The RDAP Policy describes the type of documentation to be used to verify a purported pattern of substance abuse as follows:

Documentation to support a substance use disorder within the 12-month period before the inmate's arrest on his or her current offense[:] [D]ocumentation from a probation officer, parole officer, social service professional, etc., who has information that verifies the inmate's problem with substance(s) within the 12-month period before the inmate's arrest on his or her current offense[;] [d]ocumentation from a substance abuse treatment provider or medical provider who diagnosed and treated the inmate for a substance abuse disorder within the 12-month period before the inmate's arrest on his or her current offense [; or] [m] ultiple convictions (two or more) for Driving Under the Influence (DUI) or Driving While Intoxicated (DWI) in the 5 years prior to his or her most recent arrest.

Id. If there is no verifying information in the inmate's PSR or other official documents, the burden is on the inmate to provide verifying documentation from a prior abuse treatment provider or a probation officer, parole officer, or social services professional before entering the RDAP program. Id. §2.5.8(3).

         The BOP's application of the RDAP Policy has been described as follows:

Given the section 3621(e) incentive [to obtain a reduction in sentence], and to ferret out malingering, RDAP eligibility interviews entail difficult questions designed to determine whether admission is sought in good faith to obtain treatment, or simply to secure a quicker return home. Applicants are routinely asked when they learned about the program and the section 3621(e) credit, whether attorneys advised them to exaggerate treatment needs when meeting with probation, ...

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