United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
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).
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.
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.
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.
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).
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),
"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).
BOP's application of the RDAP Policy has been described
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