United States of America v. Mahoney

Filing 226

Chief Judge Patti B. Saris: MEMORANDUM AND ORDER entered. The Court DENIES Mahoney's motion for discharge under 18 U.S.C. § 4247 (Docket No. 185 ).(Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________
)
UNITED STATES OF AMERICA,
)
)
Petitioner,
)
)
v.
)
Civil Action
)
No. 13-11530-PBS
)
BRIAN MAHONEY,
)
)
Respondent.
)
)
)
MEMORANDUM AND ORDER
April 5, 2017
SARIS, C.J.
INTRODUCTION
Brian Mahoney was civilly committed on October 14, 2014,
pursuant to 18 U.S.C. § 4246, after the Court concluded by clear
and convincing evidence that Mahoney was “presently suffering
from a mental disease or defect as a result of which his release
would create a substantial risk of bodily injury to another
person or serious damage to the property of another.” United
States v. Mahoney, 53 F. Supp. 3d 401, 402 (D. Mass. 2014),
aff’d, 661 F. App’x 1 (1st Cir. 2016). This Court found that
Mahoney suffers from Bipolar Disorder and Antisocial Personality
Disorder. Id. at 415. Mahoney has an extensive criminal history,
with thirty-four adult criminal convictions including
convictions for violent offenses. Id. at 403.
1

Mahoney moved for a hearing pursuant to 18 U.S.C. § 4247(h)
to determine whether he still meets the criteria for commitment
under 18 U.S.C. § 4246 (Docket No. 185). A hearing was held on
January 26, 2017 and continued on January 27 and 30. Forensic
psychologist Dr. Shawn Channell of Federal Medical Center in
Fort Devens MA (FMC Devens) testified on behalf of the
government. Mahoney subpoenaed Dr. David Hoffman, a boardcertified psychiatrist and current medical director for the
Metro Boston area of the Massachusetts Department of Mental
Health (DMH), who determined at the state level that Mahoney did
not have a qualifying mental illness. Mahoney was represented by
court-appointed counsel. He did not present his own expert
testimony.
After a review of the record and evidentiary hearing, the
Court DENIES Mahoney’s motion for discharge.
FACTUAL FINDINGS
The Court bases these findings on the testimony and
exhibits submitted at the evidentiary hearing.
I.

Incident Reports
As of the end of August 2016, Mahoney had gone about ten

months without a disciplinary incident. However, on November 21,
2016, two incident reports were filed against Mahoney. First, an
incident report was filed against Mahoney for threatening
another with bodily harm. Gov’t ex. 124. Dr. Gorham stated that
2

during a meeting, “MAHONEY got up from where he was sitting,
walked across the room to stand close to this writer, and, in a
loud, pressured voice, stated, ‘You know what, [used my first
name in spite of being directed not to previously], I’m from
right here in Boston, and I’m getting out! REMEMBER THAT! I’m
from right here in Boston and I’m going to be out there soon!
Remember that!’ In context, it was clear that the inmate was
expressing a veiled threat but he did not make a more explicit
threatening statement.” Gov’t ex. 124, BOP_Mahoney 01913.
Mahoney responded: “I am not guilty. Boston MA is not a threat.
I only got the shot because I did not apologize in the meeting.
I did not threaten to bodily harm him. I just did not apologize
to him.” Gov’t ex. 124, BOP_Mahoney 01911.
As a result of his behavior in front of Dr. Gorham, Mahoney
was transferred to the locked mental health unit. Gov’t ex. 105,
BOP_Mahoney 01857. While his property was being packed for
transfer, a bottle of pain reliever containing 29 pills of
Seroquel 300mg was found in Mahoney’s locker. At that time,
Mahoney was proscribed 900mg of Seroquel a day. When asked about
the pills found in the Aleve bottle, Mahoney admitted they were
pills he was supposed to take as part of his daily medication.
Consequently, a second incident report was filed against Mahoney
for misuse of medication. Gov’t ex. 105, BOP_Mahoney 01857.

3

II.

Application for State Benefits
In February 2016, Mahoney submitted an application to DMH

for mental health services. Gov’t ex. 134, tab 13, BOP_Mahoney
02215-20. Based on a review of Mahoney’s written application,
Dr. Hoffman found Mahoney did suffer from several disorders,
including: attention deficit disorder, antisocial personality
disorder, narcissistic personality disorder, and possibly
Bipolar II. 1/26/2017 Hrg. Tr. 22:12-16. Dr. Hoffman did not
find Mahoney suffered from Bipolar I and denied Mahoney state
benefits on March 25, 2016. Gov’t ex. 134, tab 9, BOP_Mahoney
02197-99. In this denial letter, Dr. Hoffman wrote: “There is no
definitive documentation [in your initial application] of the
presence of psychotic symptoms consistent with a diagnosis of
Bipolar I Disorder, and thus opinions that your presentation is
more consistent with a Bipolar II Disorder with episodic
hypomania seem more accurate.” Gov’t ex. 134, tab 9, BOP_Mahoney
02198. Mahoney appealed this decision. Gov’t ex. 134, tab 7,
BOP_Mahoney 02174-75. A state hearing was held on September 28,
2016. Gov’t ex. 135, BOP_Mahoney 02433-02532. Before the
hearing, Dr. Hoffman met with Mahoney in person for one hour on
June 23, 2016.
At the state hearing on September 28, 2016, Dr. Hoffman
testified that Mahoney did not meet the criteria to receive DMH
benefits because he did not have a “qualifying” diagnosis. Gov’t
4

ex. 135, BOP_Mahoney 02489. Mahoney was present. It was at this
hearing that Mahoney first heard Dr. Hoffman testify that he
believed Mahoney did not suffer from Bipolar Disorder.
Specifically, Dr. Hoffman testified: “I would give him
antisocial personality disorder, narcissistic personality
disorder, attention deficit hyperactivity disorder, rule out
traumatic brain injury, rule out Bipolar II.” Gov’t ex. 135,
BOP_Mahoney 02489.
III.

FMC Devens Risk Assessment
On October 28, 2016, Dr. Channell and Mahoney’s risk

assessment team recommended Mahoney for conditional release.
This decision was based on their review of Mahoney’s behavior
from the time he was originally committed in 2014. Mahoney also
participated in an interview with the risk assessment panel on
August 30, 2016. The panel found that although Mahoney continued
to meet the diagnostic criteria for Bipolar Disorder, “his mood
and behavior have generally been stable since his last Risk
Assessment Panel report. As a result, it is the opinion of the
undersigned that Mr. Mahoney’s release under a prescribed
regimen of treatment and supervision would no longer create a
substantial risk of bodily injury to another person or serious
damage to the property of another.” Gov’t ex. 104, 13.
However, after the state hearing on September 28, 2016,
Mahoney’s behavior shifted because he no longer believed he
5

suffered from Bipolar Disorder. Mahoney stopped taking his
medication and instead began “cheeking” his pills, as evidenced
by the incident report for misuse of medication that was filed
against Mahoney on November 21, 2016. Mahoney told Dr. Channell
that because of Dr. Hoffman’s conclusion that he did not have
Bipolar, he would cheek about one or two pills a day.
As a result of this behavior and the incident report filed
against Mahoney for threatening another with bodily injury,
Mahoney’s risk assessment panel prepared an addendum to its
October 28, 2016 report. In this addendum dated November 23,
2016, the panel found “Mr. Mahoney’s functioning has
significantly deteriorated since his review in August 2016; he
is not medication compliant, and he is housed on a locked mental
health unit pending two incident reports. His behavior and
statements indicate he does not intend to abide by the
conditions of release if placed on conditional release. As a
result, it is the opinion of the undersigned that Mr. Mahoney’s
release to the community would create a substantial risk of
bodily injury to another person or serious damage to the
property of another as a result of mental illness. He remains
appropriate for commitment pursuant to Title 18, United States
Code, Section 4246.” Gov’t ex. 105, BOP_Mahoney 01854.
After FMC Devens found out that Mahoney was cheeking his
medication on November 21, 2016, FMC Devens started crushing his
6

pills to ensure Mahoney was complying with the recommended
dosage. Dr. Channell believes Mahoney is currently in compliance
with his medication plan. As a result, Dr. Channell has noticed
that Mahoney’s mood has improved and he has moved back into an
open unit.
However, Mahoney still exhibits difficulty cooperating with
his treatment team and contends he will not abide with any
conditions of release. For example, on December 15, 2016 Mahoney
filed the following request to Dr. Gorham, his treating
psychologist: “On the advise [sic] of my attorney there will be
no more further contact with you or Dr. Channell. My most recent
reevaluation done by Dr. Hoffman clearly ruled out Bipolar I
disorder and Bipolar II disorder as well as schizophrenia and
acute manic [sic]. . . . Dr. Hoffman a psychiatric and medical
doctor for the Mass. (DMH) completely ruled these disorders
out.” Def. ex. 1. Mahoney has also stated that he will refuse to
comply with any conditions of release. Gov’t ex. 131.
Specifically, as recently as January 12, 2017, Mahoney stated,
“I will never take any conditional release, group home or
halfway house. I will only take an unconditional
release . . . .” Gov’t ex. 131.

7

DISCUSSION
I.

Legal Standard
Under 18 U.S.C. § 4247, a civilly committed person is

entitled to move for discharge every 180 days following a
court’s determination that the person should be committed. 18
U.S.C. § 4247(h). In a discharge hearing, the government no
longer bears the burden of proving dangerousness. Rather, the
committed person must present a preponderance of evidence
proving his release no longer creates a substantial risk of
bodily injury. United States v. Wetmore, 812 F.3d 245, 247-48
(1st Cir. 2016) (involving a civil commitment for sexual
dangerousness); United States v. Anderson, 151 F.3d 1030, at *2
(4th Cir. June 8, 1998) (unpublished table decision) (per
curiam) (holding that the committed person must present a
preponderance of evidence proving that his release would “no
longer create a substantial risk of bodily injury” under 18
U.S.C. § 4246(e)).
Courts consider a wide range of factors to assess whether a
civilly committed person poses a “substantial risk” of
dangerousness, among them his history of significant violent
behavior, past compliance with medication protocols, drug or
alcohol abuse, whether he has named any targets of violent
behavior, and his previous use of weapons. See, e.g., United
States v. Sahhar, 917 F.2d 1197, 1208 (9th Cir. 1990) (where the
8

individual “verbally and physically threatened staff members and
other inmates, had to be physically restrained on at least one
occasion, damaged at least three cells in which he was housed
and physically assaulted a psychiatrist by approaching her from
behind and squeezing her neck”); United States v. Ecker, 30 F.3d
966, 970-71 (8th Cir. 1997) (where the individual had a “history
of dangerousness, a history of drug or alcohol use, identified
potential targets, previous use of weapons, any recent incidents
manifesting dangerousness, and a history of problems taking
prescribed medicines”).
II.

Mental Disease or Defect
Mahoney challenges the Court’s previous ruling that he

suffers from Bipolar I disorder. This challenge is based
primarily on Dr. Hoffman’s assessment. At the hearing before the
Court, Dr. Hoffman testified that Mahoney does not meet the
diagnostic criteria for Bipolar I since there was no evidence of
a manic episode as “required for the diagnosis of bipolar I
disorder.” Diagnostic and Statistical Manual of Mental Disorders
124 (5th ed. 2013) [hereinafter DSM-V]. Dr. Hoffman reached this
conclusion because he did not find “the discrete episodes of
elevated mood, grandiosity, more goal-directed behavior” or a
“decreased need for sleep,” occurring over a week or two week
period -- behavior typical of a manic or hypomanic episode -- in
Mahoney’s record. 1/26/2017 Hrg. Tr. 32:7-11. Dr. Hoffman
9

testified that because he did not find these criteria in the
record, he concluded Mahoney’s behavior was more likely
attributable to “ADHD and his complex personality style” than
Bipolar Disorder. 1/26/2017 Hrg. Tr. 31:1-4; see also 1/26/2017
Hrg. Tr. 32:7-16 (describing Mahoney’s behavior not as manic but
as “reactive behavior” in someone who has a “very sensitive
trigger” and “tends to react in anger”).
In order for an individual to be diagnosed with Bipolar I
disorder “at least one lifetime manic episode is required.” DSMV at 124. A manic episode is defined as a period of mood
disturbance “lasting at least 1 week and present most of the
day, nearly every day (or any duration if hospitalization is
necessary).” DSM-V at 124. During the period of mood disturbance
three of the following criteria must be met in order for an
individual to meet the Bipolar I diagnostic criteria of a manic
episode:
1. Inflated self-esteem or grandiosity.
2. Decreased need for sleep (e.g., feels rested after only 3
hours of sleep).
3. More talkative than usual or pressure to keep talking.
4. Flight of ideas or subjective experience that thoughts
are racing.
5. Distractibility (i.e., attention too easily drawn to
unimportant or irrelevant external stimuli), as reported
or observed.
6. Increase in goal-directed activity (either socially, at
work or school, or sexually) or psychomotor agitation
(i.e., purposelessness non-goal-directed activity).
7. Excessive involvement in activities that have a high
potential for painful consequences (e.g. engaging in
10

unrestrained buying sprees, sexual indiscretions, or
foolish business investments).
DSM-V at 124. Additionally, the mood disturbance must be
“sufficiently severe to cause marked impairment,” or
“necessitate hospitalization,” or there must be psychotic
features. DSM-V at 124. Finally, in order for the mood
disturbance to qualify as a manic episode, it cannot be
“attributable to the physiological effects of a substance” or to
“another medical condition.” DSM-V at 124.
Dr. Channell described Bipolar Not Otherwise Specified, or
Bipolar NOS, as another form of Bipolar I that is still
considered a severe mental disorder. However, an individual
suffering from this disorder may not meet all of the diagnostic
criteria or may have different types of symptoms from a
traditional Bipolar I patient. 1/27/2017 Hrg. Tr. 2-95:14-24.1
Bipolar II is another mental disorder that, unlike Bipolar
I or Bipolar NOS, is not considered severe. In order to be
diagnosed with Bipolar II an individual can never have a manic

1

During the hearing the parties used the term Bipolar Not
Otherwise Specified to refer to a form of Bipolar Disorder that
does not meet all of the diagnostic criteria for Bipolar I. In
the DSM-V this is referred to as “Other Specified Bipolar
Disorder” when the “clinician chooses to communicate the
specific reason that the presentation does not meet the criteria
for any specific bipolar and related disorder[,]” and
Unspecified Bipolar when the clinician “chooses not to specify
the reason that the criteria are not met . . . .” DSM-V at 14849. For the purpose of this order, we use the term Bipolar Not
Otherwise Specified. The use of this specific term does not
affect the holding. 

11

episode. See DSM-V at 131 (“Diagnosis of bipolar I disorder is
differentiated from bipolar II disorder by determining whether
there have been any past episodes of mania.”); DSM-V at 132-33
(describing the diagnostic criteria for Bipolar II disorder to
include a hypomanic, not a manic episode). Once an individual
sustains a manic episode, he is considered to be Bipolar I.
Bipolar II is characterized by hypomanic or depressive episodes.
DSM-V at 132-33.
Dr. Channell testified he personally observed Mahoney
during a manic episode. 1/27/2017 Hrg. Tr. 2-117:10-14. At least
two of these manic episodes lasted at least one week. 1/26/2017
Hrg. Tr. 128:4-9. During these manic episodes, Dr. Channell
described that Mahoney “experienced rapid speech, inflated selfesteem, grandiosity, violent behavior [and] difficulty
sleeping.” 1/26/2017 Hrg. Tr. 128:4-9. Dr. Channell also noted
that “[t]here have been multiple notations over the years of
periods of time where [Mahoney has] only needed three or four
hours of sleep at night . . . which is classic bipolar
disorder.” 1/27/2017 Hrg. Tr. 2-41:11-21. Based on Dr.
Channell’s review of Mahoney’s case file and conversations with
Mahoney’s treatment providers, Dr. Channell testified that at
least twelve other individuals have diagnosed Mahoney with
either Bipolar I or Bipolar NOS: MCI Concord in 2009; Stratford
County Jail; the Massachusetts Department of Corrections; Dr.
12

Mart in 2011; Dr. Goodwin in 2012; Dr. Kambampati in 2012; Dr.
Beaulieu, his treating psychologist, in 2013; Dr. Kriegman in
2014; Dr. Kissin in 2015; Dr. Tillbrook in 2015 and 2016; and
his current treating psychologist, Dr. Gorham. Dr. Channell
agrees with these diagnoses. At least three doctors have
described Mahoney as “manic.” Dr. Eric Mart, gov’t ex. 107, BOP_Mahoney 00132 and gov’t ex. 136, BOP_Mahoney 00136; Dr.
Kambampati, gov’t ex. 110; and Dr. Channell.
According to Dr. Channell, there have only been two doctors
who have diagnosed Mahoney with Bipolar II -- Dr. Kissan and Dr.
Kazim. 1/27/2017 Hrg. Tr. 2-26:10-15. Dr. Kissin originally
diagnosed Mahoney with Bipolar II in July 2011. Gov’t ex. 107,
BOP_Mahoney 00128. In 2015, Dr. Kissin changed her diagnosis to
Bipolar I in concurring with the risk panel assessment
diagnosis. Gov’t ex. 103. Between these two time periods Dr.
Kissin reviewed more of Mahoney’s records and also participated
in the risk panel interviews with Mahoney. Dr. Kazim diagnosed
Mahoney with Bipolar II in 2015. On November 4, 2015, the
“Behavioral Health Treatment Plan Worksheet” from FMC Devens
categorized Mahoney’s “working diagnosis” as Bipolar II
Disorder. Def. ex. 3. Dr. Channell’s understanding of this
worksheet is that it represented Dr. Kazim’s own diagnosis, not
the treatment team’s diagnosis, which was Bipolar NOS. 1/27/2017
Hrg. Tr. 2-96:16-2-97:4.
13

Dr. Hoffman’s testimony is not credible because he based
his testimony on the review of a small subset of Mahoney’s files
in this case. He reviewed only 50 of the 3000 pages related to
Mahoney’s case2 and only met with Mahoney once for an hour. Based
on this limited record review, he disagreed with (or was unaware
of) the diagnosis of other psychologists and psychiatrists who
had treated Mahoney in the past eight years. He also did not
know about the manic episodes or the sleep disturbance. Based on
Dr. Channell’s testimony and the evidence in the record, the
Court continues to find that Mahoney suffers from a form of
Bipolar Disorder, either Bipolar I or Bipolar NOS.
III.

Substantial Risk of Danger
The Court has serious concerns about Mahoney’s ability to

function safely in society upon release. A recent incident
report indicates that he continues to threaten staff members at
FMC Devens and is unable to control his temper, most notably
when he is not compliant with his medication. Mahoney’s
unwillingness to comply with his current treatment and his
repeated statements that he will not comply with conditions of
release support the government’s contention that he cannot be
released safely. Before Dr. Hoffman’s diagnosis, when Mahoney
was participating in treatment and taking his prescribed 900mg

2

Dr. Hoffman requested records from Mahoney’s FMC Devens
social worker but he only received a limited number of files. 

14

of Seroquel, he appeared to be improving. There were no incident
reports filed against Mahoney for ten months, resulting in the
risk assessment panel’s initial recommendation that Mahoney
should be conditionally released. However, since that
assessment, Mahoney went through a period of non-compliance with
his medication, he refused treatment, an incident report for
threatening another with bodily harm was filed against him, and
he stated vehemently that he was unwilling to follow any
conditions of release.3 Unfortunately, his uncle can only house
him for one month. I find Mahoney has not met his burden to show
that if released, he will no longer pose a substantial risk of
bodily injury to others in the community.
ORDER
The Court DENIES Mahoney’s motion for discharge under 18
U.S.C. § 4247 (Docket No. 185).

/s/ PATTI B. SARIS_______________
PATTI B. SARIS
Chief United States District Judge

3

Defense counsel argues the Court cannot compel Mahoney to
comply with his medication. Docket No. 218. Since the Court
finds Mahoney is currently compliant with his medication at this
time, it need not address this issue. 

15