United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
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.
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.
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.
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
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
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.
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.
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
reasons for these decisions are explained more fully in this
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.
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.
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. 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).
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
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
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.
Bureau of Prisons, Program Statement 5330.11, Psychology
Treatment Programs (March 16, 2009),
(the "RDAP Policy") at §2.5.8 (2)- (3); Nov.
9, 2016 Tr. at 40-41.
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...
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.
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.
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.
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
counselor expressed particular concern about the wine
business McDonough's wife had started ...