WOLF, UNITED STATES DISTRICT JUDGE.
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
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.
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.
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.
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
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.
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:
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
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."
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.
As the BOP prepared to transfer McDonough to the community to complete his sentence, McDonough's 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:
The counselor expressed particular concern about the wine business McDonough's wife had started while he was incarcerated, writing:
Baker Decl. Ex. 8 at 2 (Docket No. 876-3 at 26 of 35) (emphasis added).
The BOP released McDonough to a Community Confinement Center on July 13, 2016.
In October 2013, the BOP filed a motion, pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), seeking a reduction of DiMasi's sentence to time-served based on a deterioration of his health and difficulty in functioning in prison.
On November 9, 2016, the court conducted a hearing at which Dr. Kotch testified and counsel for the BOP explained the decision to admit McDonough to the RDAP. The hearing demonstrated to the court, at least, that McDonough had been deemed eligible for the program without the documentation required by BOP's RDAP Policy. The BOP agreed to review the matter and report whether it would maintain, modify, or withdraw McDonough's conditional early release.
The court gave McDonough notice that it was considering modifying the conditions of McDonough's Supervised Release in certain respects.
On January 9, 2017, the court issued an Order modifying the conditions of McDonough's Supervised Release in view of the information concerning substance abuse that was not available when he was sentenced in 2011.
On January 23, 2017, McDonough filed a Motion for Reconsideration of the January 9, 2017 Order. McDonough requests revision of the following two new conditions of Supervised Release:
Docket No. 919 at 2. As explained in § IV,
18 U.S.C. § 3583(e)(2) authorizes the court, after considering "the factors set forth in [18 U.S.C. §§] 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)," to "extend a term of supervised release if less than the maximum authorized term was previously imposed," and to "modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release." This means, among other things, that the court could now extend the term of McDonough's Supervised Release beyond the two years that was considered sufficient in 2011, before there was any reason to believe that McDonough might require treatment for substance abuse. The court may not, however, now lengthen the period of McDonough's Supervised Release to reflect the seriousness of his offense or provide
Section 3583(d) authorizes the court to impose "any condition set forth as a discretionary condition of probation in [18 U.S.C. §] 3563(b) and any other condition it considers to be appropriate." Such conditions include ordering the defendant to "undergo available medical, psychiatric, or psychological treatment, including treatment for drug or alcohol dependency, as specified by the court, and remain in a specified institution if required for that purpose." § 3563(b)(9).
In deciding whether to modify conditions of Supervised Release, in addition to § 3583(d), the court must consider United States Sentencing Guideline ("U.S.S.G.") § 5D1.3(b). Like that statute, the Guideline provides that, among other things, the court may impose conditions that are "reasonably related" to the "history and characteristics of the defendant" and the need to provide him with "correctional treatment in the most effective manner." § 5D1.3(b);
As the First Circuit has recently written:
Information that was not available to the court at the time of sentencing may justify a modification of conditions of Supervised Release.
Events that occurred after sentencing may also justify a modification of the conditions of Supervised Release. For example, in
Before revising conditions of Supervised Release, the court must follow the procedures established by the relevant Rule of Criminal Procedure, Rule 32.1(c).
The Standard Conditions and Special Conditions of Supervised Release imposed when McDonough was sentenced on September 9, 2011 will remain in effect. In addition, the following special conditions are being imposed:
The court finds that the foregoing conditions are necessary and appropriate in view of McDonough's present history and characteristics, the need to provide him with medical care and correctional treatment in the most effective manner, and, with regard to employment, also the need to protect the public.
McDonough's history now includes a finding by the BOP that he has a substance abuse disorder. The record now includes information on which the BOP based that finding. McDonough has completed an expensive, intensive 500 hour residential substance abuse treatment program, focusing primarily on alcohol abuse. He has also participated in out-patient alcohol treatment at Hope House, Inc.
There is no argument, let alone evidence, that the alcohol abuse disorder the BOP diagnosed has been "cured." McDonough's RDAP counselor noted that it is important that he recognize that "substance dependence does not have a definitive cure." Baker Decl. Ex. 8 at 2 (Docket No. 876-3 at 25 of 35). As the First Circuit wrote in another case involving conditions relating to alcohol abuse, "treatment alone, without some form of disciplined follow-up, is unlikely to prove successful in the long-run."
As the First Circuit has held, a history of alcohol abuse makes a prohibition on the possession and use of alcohol reasonable.
Section § 3563(b)(6) provides that the court may require that a defendant "refrain from frequenting specified kinds of
However, at the January 5, 2016 hearing, McDonough argued that some of the other proposed conditions were unnecessary or unduly restrictive because he could be trusted to maintain his sobriety. These arguments were not persuasive. McDonough has demonstrated that the court cannot rely on his "good faith" in complying with the condition that he not drink alcohol. As the First Circuit wrote in another case, "little about the defendant or his history suggests that good faith will be forthcoming."
Moreover, as explained earlier, McDonough's RDAP counselor characterized McDonough's prognosis for avoiding future alcohol abuse as only "fair." Baker Decl. Ex. 8 at 3 (Docket No. 876-3 at 26 of 35). The counselor also noted that McDonough minimized the danger of potential "relapse triggers."
At the January 5, 2017 hearing McDonough expressed concern about the condition authorizing Probation to test him for use of alcohol up to 208 times each year. The First Circuit has held that the court may not delegate to Probation the authority to determine the maximum number of tests that may be performed beyond the minimum of three prescribed by statute.
Judges in the District of Massachusetts often authorize up to 104 drug tests a year. The court understands that the use of drugs can be detected for several days and, therefore, testing up to twice a week is usually sufficient to determine if a condition prohibiting the use of drugs has been violated. However, alcohol can only be detected for hours after use. Therefore, the court finds that it is appropriate to authorize
The court is also ordering that McDonough's compliance with the conditions of his Supervised Release be monitored by Probation in part by using the Outreach Smartphone Monitoring ("OSM") technology discussed at the January 5, 2017 hearing or other technology.
Probation is also authorized to use the location monitoring feature of the OSM device to determine if McDonough is in a place prohibited by the conditions of his Supervised Release. Once again, use of the OSM device will be less burdensome for McDonough, and Probation as well, than traditional electronic monitoring, which the court has considered, but is not now requiring.
At the January 5, 2017 hearing, McDonough also objected to the condition that he not reside in any place where alcohol is present. McDonough's counsel explained that McDonough's wife started a wholesale wine business while he was incarcerated, and she holds wine tastings at their home. McDonough contends that banning alcohol from their home would unnecessarily injure her business.
However, the court finds that prohibiting alcohol in any home in which McDonough resides is justified and appropriate. McDonough does not have a proven record of abstinence while in the community. As explained earlier, in comparison to drugs, the use of alcohol is difficult to detect. As also indicated earlier, McDonough's counselor in the RDAP program expressed concern that Mrs. McDonough's wine business could trigger a relapse, and that McDonough minimized that risk by viewing himself as cured.
This reasoning is also applicable to the objection at the January 5, 2017 hearing to the condition that McDonough not be in the presence of any individual he knows is consuming alcohol and/or using a controlled substance not prescribed by a doctor. McDonough asserts that his future business activities may require that he dine with people who are drinking. However, as explained earlier, McDonough's doctor noted that the drinking that contributed to concern about McDonough's blood
In his Motion to Reconsider, McDonough asserts that the condition that he not associate with any individual he knows is (a) consuming alcohol and/or (b) using a controlled substance not prescribed by a doctor could be violated by a "casual or chance meeting." Docket No. 922 at 3. He asks that the condition be revised to make an exception for such occasions. McDonough also contends that the condition would prohibit him from attending large events with family and friends who may drink, such as barbeques or dinners at a friend's home.
The new condition concerning association is intended to prohibit planned encounters that McDonough foresees will involve someone who is drinking or illicitly using controlled substances. Its goal is to keep McDonough from resuming a lifestyle that requires regular contact with people who are drinking in a business or social setting. The court does not, however, wish to keep McDonough from being with members of his family or close friends who are not individuals with whom McDonough reportedly drank regularly and, perhaps, used drugs illegally. Therefore, the court is modifying the fifth new condition of Supervised Release included in the January 9, 2017 Order to permit McDonough to attend family or other social occasions at which it is foreseeable someone will be drinking alcohol if he fully discloses the relevant facts to Probation and obtains its prior permission to attend.
The court recognizes that McDonough may, nevertheless, attend a meeting or event at which he did not foresee that someone would be drinking. If this occurs, and is reported to Probation within 12 hours, the court will not consider it a violation of McDonough's conditions of Supervised Release.
Finally, the court is ordering that McDonough not engage in any employment for remuneration without the prior approval of Probation. This condition is appropriate both to protect the public,
At the January 5, 2017 hearing, McDonough's counsel stated that McDonough is hoping to serve as a consultant to provide advice to companies on issues at the intersection of business and public policy, and might try to become a registered lobbyist again.
It is questionable whether any client would want to hire a "consultant" on governmental affairs who has been convicted of conspiring with corrupt public officials. It is equally uncertain whether any honest government official would deal with McDonough. Therefore, the issue of whether McDonough should be allowed to work as a lobbyist or as a consultant on government affairs may be academic.
In any event, the court does not wish to discourage McDonough from engaging in legitimate work that does not create a foreseeable risk that he will resume drinking or commit crimes again. While the prospect of McDonough working in real estate was also mentioned,
The court expects, however, that Probation will not allow McDonough to engage in any remunerative work that would provide an opportunity to commit the type of crimes involved in this case in order to protect the public while he is on Supervised Release.
In summary, the court finds that in view of McDonough's history and characteristics, the need to maximize the potential for success of the treatment that was provided by the BOP and that will be provided by Probation, and with regard to McDonough's employment the need to protect the public as well, each of the new conditions of McDonough's Supervised Release now being imposed is reasonably necessary and appropriate.
In view of the foregoing, it is hereby ORDERED that McDonough's Motion for Reconsideration (Docket No. 922) is ALLOWED to the limited extent described in this Memorandum, and that the special conditions of his Supervised Release are modified to include the following:
1. McDonough shall participate in any substance abuse program prescribed by Probation, which may include up to 104 drug tests per year and up to 208 alcohol tests per year. Such testing shall include, but not be limited to, the use of the Outreach Smartphone Monitoring, including but not limited to its video-check-in and breathalyzer capacity and its location monitoring capacity. McDonough shall pay for the cost of such testing or monitoring.
2. McDonough shall not possess or consume any alcohol.
3. McDonough shall not use any controlled substance without a doctor's prescription and the approval of Probation.
4. McDonough shall not reside in any premises where alcohol is present.
5. Except with the prior approval of Probation, McDonough shall not associate with any individual who he knows is consuming
6. McDonough shall not enter any establishment whose primary purpose is selling alcohol, including but not limited to beer, wine, or liquor.
7. McDonough shall not engage in any employment or activity for remuneration without the prior approval of Probation. Probation may require disclosure of information concerning McDonough's history or circumstances to any prospective employer or business associates.
The fact that McDonough was admitted to the RDAP without the documentation required by the BOP's RDAP Policy raises questions concerning whether more privileged, "white collar" criminals are gaining entry to the RDAP and being allowed to earn a reduction in their sentences, while less fortunate, less educated, less wealthy, or less articulate defendants with well-documented addictions are not. However, decisions whether to admit an inmate to the RDAP and to grant a reduction of his sentence are virtually unreviewable by the courts.
The court believes that this degree of discretion imposes on BOP the duty to assure that its decisions concerning admission to the RDAP do not undermine the efforts of judges to avoid unwarranted disparities in the sentences of similarly situated defendants. The future conduct of the BOP will determine whether its decision concerning McDonough is consistent with this goal.
