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Case: 1:07-cr-00716 Document #: 182 Filed: 02/04/09 Page 1 of 13 PageID #:625

UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA
v.
DONALD J. McGUIRE

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No. 07 CR 716
Hon. Rebecca R. Pallmeyer

GOVERNMENTS POSITION PAPER AS TO SENTENCING FACTORS


The UNITED STATES OF AMERICA, by and through its attorney, PATRICK J.
FITZGERALD, United States Attorney for the Northern District of Illinois, respectfully submits this
position paper as to sentencing factors, and asks this Court to impose a sentence of 262 months
imprisonment.
I.

BACKGROUND
From the 1960s until 2008, McGuire was a Catholic priest, and part of the Society of Jesus

(the "Jesuits"), stationed in Chicago. He taught for a number of years at Loyola Academy. Between
approximately the 1980s and 2003, McGuire spent much of his time traveling the world, leading
spiritual retreats. He was affiliated with Mother Teresa of Calcutta, India, and held himself out as
one of her primary spiritual advisers and teachers. When not traveling, McGuire lived at Canisius
House, a Jesuit residence in Evanston.
A.

Dominick

Dominick was born in February 1986. McGuire baptized Dominick and was his godfather.
Dominick's mother raised him alone, and Dominick had no father figure in his life. In June 1999,
when Dominick was 13 years old, Dominick's mother sent him to Chicago to visit McGuire. From
that point forward, McGuire assumed the role of Dominick's father and guardian, making decisions
for Dominick, including where he lived, where he went to school, and how he spent his school

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vacations, among other things. McGuire also controlled and limited Dominick's communication
with his mother.
McGuire took Dominick with him on his travels around the world, keeping Dominick close
at his side. McGuire typically required Dominick to sleep with him, usually in the same room and
in the same bed. From early in the summer of 1999, McGuire began grooming Dominick for sexual
abuse.
McGuire started his abuse of Dominick in the context of confession. In or about June 1999,
McGuire asked Dominick to make a "general confession," recapitulating the sins of Dominick's life.
When Dominick confessed masturbation, McGuire seized on it, telling Dominick that he had an
"addiction," and that McGuire needed to help him. McGuire told Dominick that if he didn't conquer
this addiction, Dominick would go to hell. McGuire also said that he needed to "inspect" Dominick,
to see if Dominick had harmed himself by masturbating. After locking the door, McGuire told
Dominick to take off his pants. McGuire used a magnifying glass to inspect Dominick's penis.
McGuire used baby oil to rub Dominick's penis, telling Dominick that this was to heal any damage
that Dominick had done to himself by masturbating.
After the general confession, McGuire began speaking to Dominick at length about sexual
topics, purportedly to alleviate Dominick's desire or need to masturbate. McGuire showed Dominick
pornographic magazines such as Playboy, Penthouse, and Hustler, and hard-core pornographic
movies. McGuire couched this as "education," telling Dominick that if he were more educated about
sex, he wouldn't have the desire to masturbate.
McGuire required Dominick to touch McGuire's naked body, telling Dominick that he
needed "massages" for his health conditions. Specifically, McGuire required Dominick to use baby

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oil to touch McGuire's penis, testicles, and scrotum. From there, in combination with the other
grooming activities, McGuire turned the tables, and began touching Dominick. McGuire used his
hands to touch Dominick's penis, testicles, and anus, and McGuire performed oral sex on Dominick.
Among other places, McGuire sexually molested Dominick on a trip to Switzerland and Austria in
December 2000 (Count One of the indictment), and on a trip to Buffalo, Minnesota in August 2001
(Count Two of the indictment).
B.

Other Victims

McGuire sexually molested many boys over many years. The government's investigation
has identified many of these victims, as well as suspected victims. Some of McGuires other victims
Peter, Michael, John, and David testified at the trial in this case, reporting how the defendant
used his position as a priest not only to gain access to them, but also to twist their notions of family
and religion in a way that permitted him to exploit them and silence them for years:

Peter: In 1998, at age 17, Peter began traveling with McGuire as his assistant.

McGuire flooded Peter with pornography and sexually explicit discussion, telling Peter that this was
necessary in order to address Peter's confession that he had engaged in masturbation. McGuire
required Peter to massage McGuire's penis and testicles.

Michael: Michael began traveling with McGuire as an assistant when he was 13

years old, in approximately 1989. After telling Michael in confession that Michael had a "neuroses"
because he masturbated, McGuire began molesting Michael. In the context of showing Michael
pornography and requiring naked massages and massages of his genitals from Michael, McGuire
repeatedly touched Michael's penis, when Michael was between the ages of 13 and 17.

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David:

David began traveling with McGuire as an assistant when he was

approximately 15 or 16 years old, in approximately 1991. After initiating the topic of masturbation
with David in the confession, McGuire began molesting David.

McGuire showed David

pornography frequently, touched David's penis and anus, and performed oral sex on David.
McGuire also required David to massage McGuire's naked body, including his genitals.

John: John began traveling with McGuire as an assistant when he was approximately

15 years old, in approximately 1993. McGuire began talking to John about sexual topics during
confession, and extended that to a discussion of sexual topics and pornography outside the
confession. McGuire required John to massage McGuire's naked body and genitals, and counseled
John to masturbate in front of McGuire. McGuire also touched John's testicles, although John could
not remember with specificity on which of two occasions that occurred.
In addition to those who testified at the trial in this case, defendant victimized other boys.
Some of those boys are described in the Governments Version, which is under seal. The
government anticipates that victims and their family members will attend the sentencing and address
the Court, either directly or through impact statements presented by the government.
II.

GOVERNMENTS POSITION ON SENTENCING


As a matter of process, the district court must properly calculate the Guidelines range, treat

the Guidelines as advisory, consider the Section 3553(a) factors, and adequately explain the chosen
sentence, including an explanation for any variance from the Guidelines range. Gall v. United
States, 128 S. Ct. 586, 596-97 (2007).

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A.

Properly Calculated Guidelines Range

Under the November 2008 Guidelines Manual, the probation officers calculation is:
Base offense level
Supervisory control
Undue influence
Sexual contact
Abuse of trust
Repeat and dangerous sex offender
TOTAL

24
[2G1.3(a)(4)]
+2
[2G1.3(b)(1)]
+2
[2G1.3(b)(2)(B)]
+2
[2G1.3(b)(4)(A)]
+2
[3B1.3]
+5
[4B1.5(b)(1)]
__________________
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PSR at 5-8. The government agrees with the offense-level calculation.


The probation officer calculated defendants criminal history category to be category I. PSR
at 11. Defendant was convicted of five counts of indecent behavior with a child in Walworth
County, Wisconsin, in 2006. PSR at 9. The convictions arose out of defendants repeated sexual
abuse of two minor students at Loyola Academy, in 1967 and 1968. Id. Defendant was sentenced
to seven years imprisonment, but that sentence is currently stayed pending defendants appeal to
the Wisconsin Supreme Court. Id. Although defendants conviction and sentence would ordinarily
garner three criminal history points under Guideline 4A1.1(a), he receives only one point, under
Guideline 4A1.2(a)(3), because the sentence is stayed. Thus, instead of being in criminal history
category II which more accurately reflects defendants criminal history defendant is in criminal
history category I.
With an offense level of 37 and a criminal history category I, defendants guidelines range,
based on the probation officers calculation, is 210 to 262 months. If defendants guidelines range
were calculated based on a criminal history category II, his guidelines range would be 235 to 293
months. The statutory maximum sentence is 15 years on each count, for a total statutory maximum
sentence of 30 years imprisonment.
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B.

Nature and Circumstances of the Offense

Defendants offense was monstrous. Defendant was part of Dominicks life since Dominick
was an infant. Defendant baptized Dominick, and was his godfather. In just those first months of
Dominicks life, the defendant assumed the role of spiritual and familial protector: one who would
guide this child in his life, and in his religion, and care for him. With Dominick, as with so many
others, defendant embraced those roles not so that he could truly care for Dominick as a priest or
a godfather, but as a way to access and control Dominick, and use Dominick for defendants own
deviant purposes.

Defendant brought Dominick totally within his control as a young,

impressionable, and vulnerable boy, and used that power to subject Dominick to repeated sexual
activity. The defendant lied and hid and concealed his criminal conduct, and taught Dominick to
do the same. For years this continued.
C.

History and Characteristics of Defendant; Need for Sentence to Reflect


Seriousness of the Offense, Promote Respect for the Law, and Provide Just
Punishment, Afford Adequate Deterrence, and Protect the Public from Further
Crimes of Defendant

Defendants crimes against Dominick capped off a lifetime of evil deeds. Without question,
there are people who would say, even today, that defendant did good deeds, too. His ministry was
broad, and it is uncontroverted that he reached many as a spiritual leader and adviser. He did so,
however, while concealing from the vast majority of people his repeated crimes against children.

All of his adult life, defendant worked in jobs that provided access to minor boys. Whether
as a priest or as a teacher, he put himself in positions where he could gain the confidence of boys
and their parents. Where he saw vulnerability usually, some trouble in the family, such as a single
mother who was relying on him to provide a fathers influence he pounced. Even for some
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children with solid family lives, he relied on the childrens strict conservative Catholicism to shield
his activities, betting wisely that the parents would trust and revere him, the children would be
too ashamed to discuss sexual matters like this with their strict parents, and he would be protected.
Nothing stopped the defendant. He had close calls over the years, being moved from school
to school, and being warned by his superiors at the Jesuits. In 1993, he was evaluated at a
psychiatric facility, and the doctors concluded that defendant had a sexual disorder, and paranoid,
narcissistic and compulsive traits. Defendant then received in-patient treatment at a facility that
provided psychiatric evaluation and treatment for priests. Defendant spent close to a year at the
residential facility, when he was released with an "after-care plan." As part of that plan, he
acknowledged that he had "allowed boundaries to be crossed" with young teenage boys, and that he
was supposed to stop all traveling with and sleeping in the same room with anyone under 18.
Indeed, the Jesuits directed the defendant repeatedly beginning in 1991 not to travel or share
rooms with minors. Despite all this treatment, however, and all these warnings, the defendant
continued with his predatory activities, victimizing Dominick, James, John, Peter and others after
his stay at the in-patient residential facility.1/
On the issues of promoting respect for the law and deterrence, in particular, one of the most
striking characteristics of defendants is his abject refusal to take responsibility for his crimes. This
characteristic has revealed itself throughout the defendants life, but most recently in the judicial
system. Defendant has faced accusations for years that he molested boys. He met those accusations,
repeatedly, with defiance; he cast aspersions on the victims, and cloaked himself in his office to

1/

The probation officer requested defendants permission to review the psychiatric treatment
records at issue, but defendant refused to authorize the probation officer to do so. PSR at 16.
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protest his innocence. Law enforcement first became involved in 2005, when the State of Wisconsin
charged defendant with molesting two boys in the 1960s, while defendant was a priest and teacher
at Loyola Academy. Defendant was convicted. At sentencing, defendant told the court that his task
was to guard and defend the truth, Tr. 71 (attached as Ex. 1), and that his practice was to examine
my life in the light of the truth, Tr. 75. The defendant compared himself to Jesus Christ. Tr. 74,
76. He concluded by telling the court, with respect to the two victims he sexually abused, I want
my accusers to be sentenced. Tr. 77.
On the heels of the Wisconsin case, the federal government began investigating more recent
allegations of McGuires sexual abuse of children. The government reached out to multiple boys
from the defendants past, and over and over again, the facts were the same. Boys who had never
met each other some of whom had never even heard of each other and who interacted with
defendant over a spread of at least 20 years, ended up describing a clear and consistent modus
operandi that defendant had employed to groom them for sexual abuse. Their information was
corroborated not only through each other, but through other witnesses who glimpsed bits and pieces
of defendants double life over the years.2/
Still, defendant persists, and protests his innocence. Defendant, like all criminal defendants
charged with a crime, had a right to a trial. He had a right to persist in his plea of not guilty, and
have the government call its witnesses and prove the crimes charged beyond a reasonable doubt.
The government does not in the slightest contest those principles, or suggest that they did not apply

2/

This included, for example, defendants long-time secretary who testified at trial, Nancy
Tanner. Ms. Tanner described at trial how she stumbled upon pornography in the defendants bags,
and had conversations with the defendant in which he insisted on traveling with minors instead of
adults, despite the Jesuits restrictions on him.
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to defendant. It is certainly relevant, however, the manner in which defendant exercised his rights
at trial. He mounted a vicious attack on Dominick, seeking to portray Dominick as a money grubber
who took advantage of the defendants generosity and made up allegations of sexual abuse in order
to win a financial settlement or verdict from defendant and/or the Jesuits. The attack was groundless
and false. Yet when this boy, Dominick, courageously took the stand and testified as to the years
of horrific abuse he suffered at the defendants hands, the defendant pounced once again, with lies
and taunts meant to smear, embarrass, and shame Dominick. Defendant did the same thing to the
other victims who testified at trial.
Despite being convicted, he has shown no remorse at all. He has never apologized to the
victims. He has never apologized to their families, who so trusted him. He has never apologized
to all the people who believed in him over the years.
Finally, on the issue of just punishment, the Court should consider how defendants crimes
have affected his victims and their families. Hearing the victims in this case is wrenching, because
the defendants crimes have so permeated their lives. During their most formative years, the
defendant turned upside down the core values these boys had been taught to respect. Defendant
interfered with his victims inner lives, their religious lives, and their family lives, in ways that
persist to this day. Some of the victims are still so wrought with emotion and pain from defendants
conduct that they are unable to appear at sentencing or to address the court. Others are making the
trip to Chicago in order to tell the Court, for themselves, how defendants crimes affected them.
D.

Need to Avoid Unwarranted Sentence Disparities

Section 3553(a) requires the court to impose a sentence that is sufficient, but not greater
than necessary, to comply with the purposes of sentencing. In order to determine the particular

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sentence to impose, the court must consider the familiar statutory factors listed in 3553(a)(1)-(7).
One of those factors is the advisory range set by the Sentencing Guidelines, and another is the
Commissions policy statements. 3553(a)(4), (a)(5). Although the Sentencing Guidelines are
advisory only, [a]s a matter of administration and to secure nationwide consistency, the Guidelines
should be the starting point and the initial benchmark. Gall, 128 S. Ct. at 596. For two reasons,
this court should give serious consideration to the advisory Guidelines range.
First, the Sentencing Guidelines are the sole factor in 3553(a) that provides any objective
sentencing range that can practicably promote the overall goal of minimizing unwarranted
sentencing disparities, which is itself a statutorily mandated factor, 3553(a)(6). See United States
v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005) (The Guidelines remain an essential tool in creating
a fair and uniform sentencing regime across the country.); see also Booker v. United States, 543
U.S. 220, 250 (2005) (Congress basic statutory goal a system that diminishes sentencing
disparity); id. at 253 (Congress basic goal in passing the Sentencing Act was to move the
sentencing system in the direction of increased uniformity); id. at 267 (rejecting other remedial
alternatives because they were inconsistent with the basic objective of promoting uniformity in
sentencing). The Supreme Court created the advisory system to continue to move sentencing in
Congress preferred direction, helping to avoid excessive sentencing disparities while maintaining
flexibility sufficient to individual sentences where necessary. Booker, 543 U.S. at 264-65. The
only way to prevent widespread unwarranted disparities is to give serious consideration to the
Guidelines. U.S. v. Boscarino, 437 F.3d 634, 638 (7th Cir. 2006) (when Guidelines are followed,
sentencing disparities are minimized); see also United States v. Miller, 450 F.3d 270, 275-76 (7th Cir.
2006) (same).

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Second, the Guidelines generally deserve serious consideration because they are the product
of careful study based on extensive empirical evidence derived from the review of thousands of
individual sentencing decisions. Gall, 128 S. Ct. at 594. It is true that there is no presumption
that a Guidelines sentence is the correct sentence, Rita v. United States, 127 S. Ct. 2456, 2465
(2007), and that there is broad sentencing discretion post-Booker. United States v. Demaree, 459
F.3d 791, 794-95 (7th Cir. 2006). However, the Commission is a respected public body with access
to the best knowledge and practices of penology; its judgments should not lightly be disregarded.
United States v. Wachowiak, 496 F.3d 744, 753 (7th Cir. 2007) (internal quotation and citation
omitted). Furthermore, the Commission is charged by statute to periodically review and revise the
Guidelines as the Commission collects comments and data from numerous sources in the criminal
justice system, 28 U.S.C. 994(o), and these ongoing efforts to refine the Guidelines are another
reason to seriously consider the advisory range.
E.

Need for the Sentence to Provide the Defendant with Needed Medical Care

The PSR provides information about defendants medical history and current physical
condition. PSR at 14-15. During the trial in this case, defendant made much of his physical
infirmities, falsely claiming that his age and physical condition made it impossible for him to have
done what the victims alleged. Defendant's age and health are not mitigating, however, because he
committed the instant offense and many others like it while an older man with various chronic
health issues. None of defendant's health issues, such as diabetes or back problems, made it
impossible or even hard for him to sexually abuse minors. Indeed, he used his health condition to
justify to outsiders and the victims' parents why he supposedly "needed" a boy to travel with him
and stay in his room. Defendant has portrayed himself for over 40 years as someone whose health

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was failing and who was in a desperate medical condition. While defendant may have medical
needs, those needs have been met and will continue to be met while he is in prison. Nothing about
defendants health or age serves to outweigh the other factors in Section 3553(a), all of which
counsel an extremely serious sentence.
III.

CONCLUSION
For the foregoing reasons, the United States respectfully requests this Court impose a

sentence of 292 months imprisonment.


Dated: February 4, 2009

Respectfully submitted,
PATRICK J. FITZGERALD
United States Attorney
By:

s/ Julie B. Ruder
JULIE B. RUDER
Assistant U.S. Attorney
219 South Dearborn Street, Room 500
Chicago, Illinois 60604
(312) 353-5300

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CERTIFICATE OF SERVICE
The undersigned Assistant United States Attorney hereby certifies that the following
document:
Governments Position Paper as to Sentencing Factors
was served on February 4, 2009, in accordance with FED. R. CRIM. P. 49, FED. R. CIV. P. 5, LR 5.5,
and the General Order on Electronic Case Filing (ECF) pursuant to the district courts system as to
ECF filers.

s/ Julie B. Ruder
JULIE B. RUDER
Assistant United States Attorney
219 South Dearborn Street
Chicago, Illinois
(312) 886-1317