Opinion
Cr. No. 09-10166-MLW
10-19-2016
UNITED STATES OF AMERICA, v. RICHARD W. McDONOUGH, Defendant.
MEMORANDUM AND ORDER
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/5330_011.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, and the details of their drug or alcohol use (e.g., when, how often, where, with whom, others' awareness, etc.).
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The BOP has historically placed primary reliance on a prisoner's self-reporting to the presentence report (PSR) writer. Whatever is contained in the PSR is presumptively valid, and any claim of a disorder that the PSR does not plainly substantiate is treated as suspect. That said, Program Statement 5330.11 confirms any prisoner's ability to validate the issue via "collateral documentation," including information from mental health or social service professionals "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[.]" This independent information must have been developed contemporaneous to the
individual being seen and in connection to corresponding treatment . . . .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.
The BOP Progress Report states that McDonough told the BOP that he had used alcohol daily and cocaine weekly in the year prior to his arrest. See Progress Report at 8. However, the BOP had a PSR in which McDonough claimed to have not used drugs since the 1990's and asserted to have never needed drug treatment. In addition, the court did not recommend that McDonough receive drug treatment in prison. Moreover, because McDonough was convicted of committing mail and wire fraud, among other things, the BOP had particular reason to be concerned about his credibility and, therefore, to insist on the usually required verification of his claims. However, the court is informed by Probation that the BOP did not communicate with it about the inconsistency between the PSR and McDonough's statements to the BOP or ask Probation whether there was any evidence to support McDonough's contention that he had a recent history of drug abuse. There is, therefore, a question concerning what, if any, documents and information the BOP relied on in finding McDonough eligible for the RDAP and an eventual reduction in his sentence. Such documents and information are relevant to the supervision of McDonough when his sentence is complete.
When sentencing a defendant the court recommends intensive drug treatment if such a recommendation is justified by the record. The BOP, however, often does not follow such recommendations. --------
The BOP transitional plan concerning McDonough also raises questions. The Progress Report states that McDonough "does not require any on-going treatment after release from custody." Id. Probation has informed the court that not recommending drug treatment as a condition of Supervised Release for a defendant who has completed the RDAP and had his sentence reduced by the BOP is very unusual, if not unprecedented in the District of Massachusetts. The court must have a full explanation to understand and evaluate the BOP's recommendation that McDonough not receive drug treatment while on Supervised Release.
In this case, the BOP reduced a sentence this court carefully considered and, for reasons fully explained, found to be necessary to serve the statutory purposes of sentencing. See Sept. 8 and 9, 2011 Transcript; 18 U.S.C. §3553(a). It appears that the BOP may have departed from its established policy and regular practices to do so. As indicated earlier, its finding that McDonough has a recent history of drug abuse raises, among other things, the issue of whether McDonough's conditions of Supervised Release should be revised to require that he participate in a drug treatment program when he is released from BOP custody.
The issues discussed in this Memorandum may raise questions for the BOP concerning the efficacy, if not integrity, of its procedures. The relevant facts may present issues for the Department of Justice as well. A knowing and willful material false statement to an official of the BOP is a crime under 18 U.S.C. §1001. See United States v. Davis, 8 F. 3d 923, 929 (2nd Cir. 1993). Such a statement to a Probation Officer may also be a crime. Compare United States v. Manning, 526 F. 3d 611, 621 (10th Cir. 2008) (holding that false statements made by a defendant to a probation officer during a presentence interview are a crime) with United States v. Horvath, 492 F 3d 1075, 1080 (9th Cir. 2007) (holding that such statements are protected by a statutory exemption to §1001 that protects statements "submitted by [a] party to a judge" in a judicial proceeding).
However, the court's immediate interest is in obtaining the documents and information on which the BOP relied in deciding to admit McDonough to the RDAP and to exercise its discretion to reduce his sentence, as well as being informed of the BOP's reasoning in deciding that McDonough does not require drug treatment after his release from BOP custody. Once again, this information will be important to the court in considering whether McDonough's conditions of Supervised Release should be modified and to Probation in supervising him.
In view of the foregoing, including the court's responsibility to assure that McDonough's conditions of supervised release are appropriate, it is hereby ORDERED that the Director of the Bureau of Prisons, or his fully informed designee, shall, by October 27, 2016, file for the public record one or more affidavits, related documents, and a memorandum addressing at least the issues discussed in this Memorandum and Order. These issues include, but are not limited to: any efforts the BOP made to verify McDonough's claim that he had a recent history of drug abuse; the reasons the BOP put McDonough in the RDAP; the record on which that decision was based; the reasons the BOP reduced McDonough's sentence; the record on which that decision was made; the reasons that the BOP found that McDonough does not require on-going treatment; and the record on which that decision was made.
/s/_________
UNITED STATES DISTRICT JUDGE
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