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United States v. McDonough

United States District Court, D. Massachusetts

January 30, 2017

UNITED STATES OF AMERICA,
v.
Richard W. McDonough, Defendant.

          MEMORANDUM AND ORDER

          WOLF, D.J.

         I. SUMMARY

         In 2011, the court sentenced defendant Richard McDonough, a lobbyist, to seven years in prison for orchestrating a scheme to fraudulently use the official power of the Speaker of the Massachusetts House of Representatives Salvatore DiMasi to extort payments from a company seeking state contracts for computer software worth more than $17, 000, 000. McDonough began serving his sentence later that year.

         McDonough told the Probation Officer preparing his Presentence Report ("PSR") that he had not used any illegal drugs since the 1990s, that his use of alcohol was not problematic, and that he never participated in or needed any treatment for substance abuse. Therefore, in sentencing McDonough to serve two years Supervised Release, the court did not impose any condition concerning substance abuse testing or treatment.

         However, upon entering Bureau of Prison's ("BOP") custody, McDonough claimed that he had used cocaine weekly and abused alcohol daily during the 12 months prior to being charged in this case in June, 2009. The BOP subsequently found that McDonough had an alcohol disorder. It admitted him to its intensive Residential Drug and Alcohol Abuse Program ("RDAP") despite the fact that McDonough could not provide documentation demonstrating that he had been diagnosed with, and treated for, alcoholism in the year before being charged - documentation which was required by the BOP's published RDAP policy. In 2016, McDonough was deemed to have successfully completed the RDAP although he was evaluated by the BOP as having only a "fair" prognosis for not abusing alcohol in the future. Nevertheless, the BOP exercised its discretion to reduce McDonough's sentence by 12 months.

         Following a hearing that demonstrated, to the court at least, that the BOP had improperly admitted McDonough to the RDAP, the BOP declined to revise its decision to release McDonough a year before his sentence would ordinarily have been served. Accordingly, McDonough was released from custody on January 3, 2017.

         After providing McDonough notice, on January 5, 2017, the court held a hearing to address whether McDonough's conditions of Supervised Release should be modified in view of the BOP's determination that he had a substance abuse disorder. On January 9, 2017, the court modified the conditions of McDonough's Supervised Release in an effort to reduce the risk that McDonough will drink or illegally use drugs while being supervised by Probation. The court also ordered that McDonough obtain the approval of Probation before engaging in any remunerative activity in an effort to assure that McDonough will not while on Supervised Release resume a lifestyle that involves "wining and dining" or again commit crimes in connection with his work.

         At the January 5, 2017 hearing McDonough did not dispute that some additional conditions concerning the use of alcohol were appropriate. However, McDonough objected to certain proposed conditions, asserting that he could be trusted not to drink again. In view of McDonough's conviction for fraud in this case, his implicit contention that he lied to Probation when he claimed not to have used drugs illegally since the 1990's or abused alcohol, and pending state fraud charges against him, the court has found that it should not rely on McDonough's promises alone. Rather, conditions aimed at keeping McDonough from the temptation to drink and monitoring his compliance with them are necessary and appropriate.

         At the January 5, 2017 hearing, McDonough expressed concern about the proposed condition that there be no alcohol in his residence because his wife has a wholesale wine business and conducts wine-tastings in their home. He also opposed the proposed condition prohibiting him from being with any individual who is drinking. Neither of these objections were persuasive. However, in response to McDonough's motion to reconsider the January 9, 2017 Order, the court is giving Probation the discretion to allow McDonough to attend particular family and other social events at which it is foreseeable someone may be drinking. With this modification, the court finds that each of the new conditions of Supervised Release imposed on January 9, 2017 is permissible and appropriate in view of the record now before the court.

         McDonough's compliance with the conditions of his Supervised Release will be monitored, in part, by technology that allows Probation to identify his location and to conduct an immediate breathalyzer test. Such monitoring is necessary because, as explained earlier, the BOP rated McDonough's prognosis for abstinence from alcohol as only "fair" and because McDonough has repeatedly demonstrated that he cannot be trusted.

         The reasons for these decisions are explained more fully in this Memorandum.

         II. PROCEDURAL HISTORY

         On September 9, 2011, the court sentenced DiMasi to eight years in prison and 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). McDonough began serving his sentence on November 30, 2011. In 2013, the First Circuit affirmed McDonough's conviction and sentence. See United States v. McDonough, 727 F.3d 143, 166 (1st Cir. 2013).

         In McDonough's 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 or alcohol testing or treatment as a condition of McDonough's two-year period of Supervised Release.

         While serving his sentence, however, McDonough told the BOP that he had used cocaine weekly and abused alcohol daily in the year before being charged in this case on June 2, 2009. See May 18, 2016 Bureau of Prisons Progress Report (Docket No. 875) at 8.[1] McDonough then applied to participate in the RDAP. An inmate who successfully completes the RDAP is eligible for a reduction in his sentence by the BOP of up to one year. See 18 U.S.C. §3621(e)(2)(B).

         At a November 9, 2016 hearing, Dr. Sharon Kotch of the BOP testified that in determining whether an inmate has a substance abuse disorder and is, therefore, eligible for the RDAP, the BOP "has historically placed primary reliance on prisoners' self-reporting to the Presentence Report (PSR) writer... [A]ny claim of a disorder that the PSR does not plainly substantiate is treated as suspect." Nov. 9, 2016 Transcript ("Tr.") at 25-26. Dr. Kotch also testified that officials of the BOP are trained to be skeptical about applicants for the RDAP, who are known to have an incentive to lie to get into the program and obtain a reduction in their sentence. See Nov. 9, 2016 Tr. at 24; see also Alan Ellis and Todd Bussert, Looking at the BOP's Amended RDAP Rules, 26 Criminal Justice Magazine 3, Fall 2011, at 37, 38, available at http://www.americanbar.org/publications/criminal_justice_magazine_home/fall2011.html.

         Where, as here, the Presentence Report does not include information indicating a substance abuse disorder and no probation officer or social service professional has verified the inmate's substance abuse in the 12-month period prior to the inmate being charged, the BOP's published policy requires that an applicant for the RDAP provide:

[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 [was charged].♦.
This document must have been written at the time services were provided and must demonstrate that a substance use diagnosis was completed at the time [the inmate was] seen, and that treatment was provided for that documented substance abuse diagnosis...
For example, the documentation may not state that the substance abuse treatment provider thought [the inmate] had an alcohol or other drug problem when he or she saw [the inmate] for a medical or psychological problem.

         Federal Bureau of Prisons, Program Statement 5330.11, Psychology Treatment Programs (March 16, 2009), https://www.bop.gov/policy/progstat/5330_011.pdf (the "RDAP Policy") at §2.5.8 (2)- (3); Nov. 9, 2016 Tr. at 40-41.

         Dr. Kotch, however, approved McDonough for admission to the RDAP without the required evidence that he had ever been diagnosed and treated for a substance abuse disorder, let alone in the 12 months before being charged in this case. In admitting McDonough to the RDAP based on a finding of an alcohol abuse disorder, Dr. Kotch relied instead on a letter and related records from 2005 to 2008 submitted to the BOP by McDonough's cardiologist. See Declaration of Sharon Kotch (Kotch Decl.), Exhibit ("Ex.") F (Docket Nos. 876-2, 879 (under seal), 886 (redacted), Nov. 9, 2016 Ex. 8). While the cardiologist's transmittal letter characterized McDonough as "alcohol dependent, " his contemporaneous notes refer to McDonough's drinking only in the context of the doctor's advice that McDonough lower his cholesterol and blood pressure. Id. For example, the doctor's October 2, 2007 notes, in pertinent part, state that McDonough:

Takes a significant amount of alcohol related to his work. He might, for example, take half a bottle of wine a day, 6-8 ounces of vodka, and 1 or 3 beers...He continues to work as a lobbyist at the State House...

         Kotch Decl. Ex. F (Docket No. 886) at 9-10. McDonough's doctor did not, however, then diagnose McDonough with an alcohol disorder. Nor did he recommend or provide him treatment for an alcohol disorder. Rather, he diagnosed McDonough as having "borderline hypertension" and "elevated cholesterol." Id. at 7-8. The cardiologist recommended that McDonough "cut his alcohol intake in half, lose 10 lbs., and increase his exercise." Id. at 7-8.

         Therefore, McDonough's request for admission to the RDAP was not supported by the evidence required by the BOP's RDAP Policy. More specifically, it was deficient because the documents on which Dr. Kotch relied were not written at the time of any treatment for alcohol abuse; indeed, McDonough never had any such treatment. Compare RDAP Policy at §2.5.8 (2)- (3). In addition, the cardiologist was not a "substance abuse treatment provider." Id. at (3). Moreover, the references to McDonough's drinking were made when the doctor saw him for hypertension and high cholesterol. See id. Nevertheless, Dr. Kotch admitted McDonough to the program.[2]

         The BOP subsequently found that McDonough had successfully completed the RDAP. The BOP then exercised its discretion to reduce his sentence by one year, giving McDonough a presumptive release date of January 3, 2017.

         As the BOP prepared to transfer McDonough to the community to complete his sentence, McDonough1s RDAP counselor noted that McDonough's "prognosis for abstinence from alcohol abuse" was only "FAIR." Declaration of Edward Baker ("Baker Decl."), Ex. 8 at 3 (Docket No. 876-3 at 27 of 35). The counselor wrote that:

Mr. McDonough's weaknesses include superoptimism and permission thoughts. While he may have maintained sobriety for several years in the past, it will be important for Mr. McDonough to remember that substance dependence does not have a definitive cure, and be realistic about the relapse triggers he will face upon reentry. Mr. McDonough discussed his use of permission thoughts to justify alcohol use as a reward or "part of the job." He will need to be mindful of his thoughts related to alcohol use in order to maintain long-term recovery.

Id. at 2 (Docket No. 876-3 at 26 of 35). (emphasis added).

         The counselor expressed particular concern about the wine business McDonough's wife had started ...


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