United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
PROCEDURAL HISTORY ....................................... 14
THE RELEVANT STANDARDS...................................21
U.S.C. §3582 (c) (1) (A) (i) .........................21
B. The Sentencing Guidelines ........................... 22
BUREAU OF PRISONS COMPASSIONATE RELEASE PROGRAM, PROCESS, AND
Extraordinary and Compelling Reasons Warrant a Reduction of
DiMasi's Sentence to Time-Served ................. 45
Supervised Release ......................... ......... 60
2011, the court sentenced defendant Salvatore DiMasi to serve
eight years in prison for extortion and related crimes
committed while he was the Speaker of the Massachusetts House
of Representatives. On October 13, 2016, the government filed
on behalf of the Director of the Bureau of Prisons (the
"Director") a motion to reduce DiMasi's
sentence to time served (the "Motion"). It was
filed pursuant to 18 U.S.C. §3582(c)(1)(A)(i), which
gives the court the authority to reduce a sentence if the
Director moves for a reduction and the court finds that
"extraordinary and compelling reasons warrant such a
reduction." Absent a motion by the Director pursuant to
the statute the court does not have the authority to reduce
reasons described in detail in this Memorandum, the Motion is
being allowed. The court is ordering that DiMasi be released
on November 22, 2016, in North Carolina, to the custody of
his wife Deborah DiMasi. Mr. and Mrs. DiMasi shall return
forthwith to their residence in Massachusetts.
conditions of Supervised Release are being modified to
require a period of six months home confinement and that Mrs.
DiMasi assure that DiMasi is monitored while eating or
drinking, by a member of his family or a health care
professional his family may hire, to protect against the risk
he will choke and be harmed. DiMasi, who will not be subject
to electronic monitoring, may leave his residence for any
medical emergency or, with the prior approval of the
Probation Office, for medical appointments and religious
requested, after three months, the court will consider
reducing DiMasi's 24-hour home confinement to a curfew.
It may also consider extending his period of home
ordered previously, DiMasi is prohibited from associating
with his convicted co-defendant Richard McDonough. In
addition, DiMasi's conditions of Supervised Release are
being modified to prohibit him from working with his
acquitted co-defendant Richard Vitale, and to prohibit DiMasi
and his family from receiving anything of value from Vitale,
to whom DiMasi directed hundreds of thousands of dollars
DiMasi extorted in this case.
summary, the reasons for these decisions are as follows.
DiMasi began serving his eight-year sentence in November,
2011. With credit for "good time, " DiMasi would
ordinarily be released in November 2018.
2012, DiMasi was found to have cancer in his neck and tongue.
DiMasi was treated with chemotherapy and radiation. This
treatment required that DiMasi receive nourishment through a
feeding tube for about a year. Tests have shown DiMasi to be
free of tongue and neck cancer since at least July 2013.
the radiation treatment caused a narrowing of DiMasi's
throat. Although there have been nine procedures to dilate
it, his throat remains narrow and DiMasi has substantial
difficulty swallowing. It has been recommended that he eat
only pureed food. Nevertheless, he is at risk of choking when
he eats. He is also at risk of having food go into his lungs,
which has in the past caused pneumonia and could again.
2015, DiMasi was found to have prostate cancer. It was
treated with radiation. Tests have shown DiMasi to be free of
prostate cancer since at least August 2016.
in 2015, DiMasi and his attorneys filed a series of requests
for a motion, pursuant to §3582 (c) (1) (A) (i), for his
early release. These requests were repeatedly denied by the
Bureau of Prisons, evidently as a result of the Bureau's
interpretation of its established standards and its
2013, pursuant to Bureau of Prisons policy and practices,
motions for compassionate release were generally filed only
for inmates who were terminally ill. Such motions were rare,
averaging about 24 a year.
Bureau of Prisons' restrictive policy for filing
§3582 (c) (1) (A) (i) motions was criticized by the
Department of Justice Inspector General and various
organizations, including Human Rights Watch. In 2013, the
Bureau's policy was broadened to make inmates who are not
terminally ill eligible for consideration, including elderly
inmates with a serious medical condition. However, the
Department of Justice Inspector General found in February
2016 that few aging inmates have been the beneficiaries of
motions for compassionate release under the expanded policy.
In an amendment which became effective on November 1, 2016,
the United States Sentencing Commission encouraged the Bureau
of Prisons to file motions for compassionate release more
often and, therefore, to permit courts to decide more often,
after considering the legally required factors and the
Commission's guidance, whether a reduction of sentence is
2016, Kathleen Kenney, the Assistant Director and General
Counsel of the Bureau of Prisons, denied DiMasi's then
most recent request for a compassionate release motion. She
noted that his cancers were in remission, and that he had no
physical or work limitations. She concluded that DiMasi did
not meet the criteria for a motion for a reduction in
sentence because his health was not deteriorating and his
ability to function in a correctional setting was not
of Prisons regulations provide that if the Bureau determines
that a motion for compassionate release is otherwise
justified, the United States Attorney who prosecuted the case
will be consulted to determine whether he or she objects to
the motion being filed. Therefore, because the Bureau denied
DiMasi's request for a compassionate release motion, the
United States Attorney ordinarily would not have become
involved in this matter.
in July 2016, the four lawyers representing DiMasi pro
bono met, for at least the second time, with the United
States Attorney for the District of Massachusetts, Carmen
Ortiz. Ms. Ortiz then spoke with Ms. Kenney to encourage the
Bureau of Prisons to reconsider its denial of DiMasi's
request for early release. The Bureau responded promptly and,
ultimately, positively to this request.
August 3, 2016, the first medical test to measure
DiMasi's ability to swallow since 2014 was performed.
August 9, 2016 Bureau of Prisons standard report indicated
that DiMasi's medical condition was stable, that he had a
chronic illness that required at least quarterly evaluation,
and that he was able to function independently.
August 11, 2016, however, DiMasi's Bureau of Prisons'
doctor characterized DiMasi's medical condition as
unstable and wrote that DiMasi was in the category of fragile
outpatients who require daily to monthly clinical attention.
Interpreting the August 3, 2016 swallowing test, the doctor
noted that: DiMasi's throat had narrowed; he had great
difficulty swallowing; and DiMasi reported repeated choking
while eating. The doctor characterized DiMasi's condition
as chronic, serious, deteriorating and unlikely to improve
with treatment. He stated that DiMasi's ability to
function while in custody was diminished. The doctor
concluded that DiMasi was "probably" appropriate
for a motion for a reduction in his sentence.
August 15, 2016, at the request of the Associate General
Counsel of the Bureau of Prisons, the Bureau's Medical
Director reviewed DiMasi's record. The Medical Director
wrote the attorney that "it is medically indicated that
someone be present to assist [DiMasi] with choking prevention
while eating or drinking." DiMasi is in custody at a low
security level facility in Butner, North Carolina. Butner has
a companion program in which inmates provide assistance to
other, impaired inmates. Therefore, the Bureau of Prisons
could, if medically necessary, assign an inmate to monitor
DiMasi when he is eating. However, the Medical Director
concluded that DiMasi's health was deteriorating and
substantially diminished his ability to function in custody.
Therefore, he found DiMasi satisfied the criteria for a
reduction in sentence motion for elderly inmates with medical
motion was filed on October 13, 2016. The Motion gives the
court the authority to reduce DiMasi"s sentence. It does
not, however, make such a reduction automatic. Nor does it
give the court unfettered discretion.
the court is required to weigh the applicable statutory
sentencing factors and make a decision that is consistent
with the relevant advisory Sentencing Guidelines. The
relevant statutory factors include, among others: the
defendant's history and characteristics; the need to
provide him with any required medical treatment in the most
effective manner; the need for the sentence to reflect the
seriousness of the defendant's crimes; and the related
needs to avoid unwarranted disparities in sentences between
similarly situated individuals and to promote respect for the
court issued a series of orders that required the parties to
submit evidence and argument regarding the relevant factors.
A hearing on the Motion was also held.
undisputed that DiMasi is not now terminally ill. Tests
indicate that he does not now have throat or prostate cancer.
DiMasi is being held in a low security facility, rather than
in a Bureau of Prisons medical center. With the significant
exception of DiMasi's difficulty in swallowing, he is
able to function fully and independently.
the court finds extraordinary and compelling reasons warrant
reducing DiMasi's sentence to the five years he has
served if certain modifications are made to the conditions of
his Supervised Release.
throat and prostate cancer DiMasi has experienced while in
custody were unforeseen when he was sentenced in 2011. If he
had then been suffering from cancer, the court would have
considered imposing a sentence of less than eight years. The
cancers that DiMasi developed while serving his sentence, and
the fact that they could recur, are now part of his history
and characteristics, and weigh in favor of reducing his
now cancer free, DiMasi is suffering from a serious medical
condition. The treatment for his cancer has narrowed his
throat, requiring a special diet. He is, however, still at
risk of choking whenever he eats. As previously noted, the
Medical Director of the Bureau of Prisons found that "it
is medically indicated" that DiMasi be monitored while
eating. This opinion is central to the court's conclusion
that DiMasi's release is justified. The Bureau of Prisons
could provide an inmate companion to monitor DiMasi when he
eats. However, the court finds that it would be more
effective for his family, and professionals it may hire, to
perform this function.
release will also serve the interest of providing him with
the most effective medical treatment in another way. Inmates
have a constitutional right to adequate medical care. They do
not have a right to optimal medical care or to the doctors of
their choice. While on Supervised Release, DiMasi will have
the liberty of selecting the doctors and hospitals he wants
to treat him, and will have the opportunity to obtain what
may be better medical care than he would if he remained in
extorting payments in return for using his official power to
cause the Commonwealth of Massachusetts to spend $17, 000,
000 on unneeded and unwanted software, DiMasi committed very
serious crimes. Those crimes had victims. As the court said
at DiMasi's sentencing, those victims included elderly
individuals needing services, and students needing
scholarships, that were not funded because DiMasi corruptly
caused $17, 000, 000 to be misspent. As the First Circuit
agreed, in 2011 an eight year sentence was appropriate to
recognize the seriousness of DiMasi's crimes. However,
there is always a range of reasonable sentences in a
particular case. The five years DiMasi will have served as a
result of the reduction of his sentence is also a significant
sentence. In view of the developments that were unforeseen
when DiMasi was sentenced, the court now finds a five-year
sentence sufficient to reflect the seriousness of his crimes.
court also finds that five-year sentence sufficient to deter
comparable corrupt conduct by others. Deterrence was an
important consideration in determining DiMasi's original
sentence. He was the third consecutive Speaker of the
Massachusetts House of Representatives to be convicted of a
federal crime. His predecessors were not sentenced to serve
time in custody. A then recent five-year sentence imposed on
a corrupt Mayor was not sufficient to deter DiMasi. However,
DiMasi's medical problems while in prison have now been
highly publicized. Knowledge of his experience should
strongly discourage public officials and others from
emulating DiMasi's example.
court has also considered whether reducing DiMasi's
sentence will be consistent with the important statutory
interests of avoiding unwarranted sentence disparities and
promoting respect for the law. As indicated earlier, motions
for compassionate release were very rare before the Bureau of
Prisons revised its policy in 2013, and have continued to be
rare for inmates, like DiMasi, who are not terminally ill.
Since 2013, the Bureau has moved for a reduction of sentence
for only 11 inmates in DiMasi's "Elderly with
Medical Conditions" category and each of them appears to
have been more debilitated than DiMasi.
appears that the Bureau of Prisons' June 2016 denial of
DiMasi's request for a motion for reduction in sentence
was consistent with its usual--and criticized--restrictive
interpretation of its policy and its standard procedures. The
Bureau's attitude and actions concerning DiMasi changed
beginning in July 2016. The record does not indicate that it
was influenced by DiMasi's former status or by the two
public officials who wrote to the Bureau on his behalf. Nor
does the record suggest that the Bureau was affected by the
Sentencing Commission's encouragement to file motions for
compassionate release more often.
the conduct of the Bureau of Prisons changed after
DiMasi"s lawyers persuaded the United States Attorney to
intervene, and she encouraged the Bureau's General
Counsel to reconsider the denial of DiMasi's request for
a motion to reduce his sentence. This was a deviation from
the process prescribed by the Bureau's regulations. It
suggests that the decision to file the Motion for a reduction
of DiMasi's sentence was driven more by the judgment of
lawyers than of medical professionals.
the government has represented that DiMasi did not get
preferential treatment. It asserts that the United States
Attorney frequently meets with defense counsel and takes
actions on their behalf if persuaded it is appropriate. The
Bureau of Prisons states that it filed the Motion on behalf
of DiMasi because of his medical condition and would do the
same for any inmate similarly situated. Although the
involvement of the United States Attorney means the Bureau
did not follow its established procedures with regard to
DiMasi, its judgment is supported by the opinions of doctors
and, therefore, deserves some deference.
future conduct of the United States Attorney and,
particularly, the Bureau of Prisons will determine whether
releasing DiMasi now will be consistent with the court's
obligation to avoid unwarranted disparities in sentencing. If
in the future the Bureau evaluates the requests of elderly,
ill inmates more generously and files §3582 (c) (1) (A)
(i) motions more frequently, DiMasi's release will not be
injurious to this important interest.
future, of course, cannot be foretold. The Sentencing
Commission, the Department of Justice Inspector General, and
organizations including Human Rights Watch have encouraged
the Bureau of Prisons to file motions for compassionate
release more often when an inmate's health seriously
deteriorates while he is in custody. This would allow courts
to perform their traditional role in weighing all of the
competing considerations and deciding what sentence is
sufficient and no more than necessary for that inmate. The
court hopes that the decision in this case will contribute to
the humane administration of §3582 (c) (1) (A) (i) by
the Bureau of Prisons in the future.
release is justified, however, only if his conditions of
Supervised Release are modified to, among other things,
address the changes in circumstances that weigh most heavily
in favor of his release. Pursuant to statute and Bureau of
Prisons policy, eligible inmates usually serve the last six
months of their sentences in a Residential Re-Entry Center
and, at times, in home confinement. It is particularly
important that DiMasi be treated similarly. The Bureau of
Prisons substantially justified its decision to file the
Motion on the view it developed in August 2016 that DiMasi
should be monitored while eating. The court's decision to
release DiMasi now rests in meaningful measure on its
conclusion that the required monitoring will be better
provided, for at least a usual period of home confinement, by
members of his family and professionals they may hire.
the court is ordering that DiMasi be released, in North
Carolina, to the custody of his wife, and that they return
home promptly and directly. Ordinarily, granting the Motion
would result in DiMasi being transported by bus to
Massachusetts, with many stops at Bureau of Prisons
facilities that may not be familiar with, or able to meet,
the medical needs which justify DiMasi's early release.
That would be inconsistent with the primary purpose of this
conclusion, the court finds that it is permissible and
appropriate to grant the Motion and order DiMasi's early
release. It hopes that this decision will not prove to
provide unusually favorable treatment for DiMasi, but rather
that it will contribute to the enlightened and appropriately
compassionate administration of justice for comparable
inmates in the future. II. PROCEDURAL HISTORY After a
six-week trial, on June 15, 2011, defendants Salvatore DiMasi
and Richard McDonough were convicted of conspiracy to commit
honest services mail fraud, honest services wire fraud,
and/or extortion under color of official right, and of honest
services mail and wire fraud as well. In addition, DiMasi was
convicted of extortion under color of official right. All of
the charges involved payments made in exchange for official
acts by DiMasi as Speaker of the Massachusetts House of
Representatives to assist Cognos ULC obtain funded contracts
for computer software with the Commonwealth of Massachusetts.
Sentencing Guideline range for DiMasi's crimes was 235 to
293 months in prison. The government recommended a 150-month
sentence. After a two-day sentencing hearing, the court found
an eight-year sentence, 96 months, to be sufficient but no
more than necessary to serve the required statutory purposes
of sentencing. See Sept. 8 and 9, 2011 Transcripts
("Tr.") . In addition, the court considered
DiMasi's known medical condition, including his heart
problems, and the medical condition of his wife as well.
See Sept. 9, 2011 Tr. at 28-29 (Docket No. 674 at
38-39) . Based on these considerations, it recommended that
DiMasi serve his sentence in Massachusetts at Federal Medical
Center ("FMC") Devens. Id. at 17.
court subsequently denied DiMasi's request for release
pending appeal. See United States v. DiMasi, 817
F.Supp.2d 9 (D. Mass. 2011), aff'd No. 11-2163
(1st Cir. Nov. 14, 2011). DiMasi began serving his sentence
on November 30, 2011. The First Circuit later affirmed his
conviction and sentence. See United States v.
McDonough, 727 F.3d 143 (1st Cir. 2013).
Bureau of Prisons did not follow the court's
recommendation that DiMasi serve his sentence in
Massachusetts at FMC Devens. Rather, it assigned DiMasi to
the Federal Medical Center in Lexington, Kentucky.
described in more detail in §V, infra, in 2012
DiMasi was diagnosed with throat cancer. He was then
transferred to the Federal Medical Center in Butner, North
Carolina, where his throat cancer was treated with radiation
and chemotherapy. Tests show he has been free of throat
cancer since at least July 30, 2013. See Docket No.
907-1, Ex. B at 1. However, the radiation and chemotherapy
caused a narrowing of DiMasi's esophagus. This condition
has required repeated dilations, the last of which was on May
31, 2016. See Docket No. 907-3 at 2, 7.
Despite the dilations, it remains difficult for DiMasi to
swallow even pureed food and he is at risk of choking while
2015, DiMasi was found to have prostate cancer. It was
treated with radiation until February 2016. Tests have shown
that DiMasi has been free of prostate cancer since at least
August, 2016. See Docket No. 907-1, Ex. B at 1, 2.
discussed in more detail below, beginning in 2015, DiMasi,
personally and through his attorneys, requested that the
Director of the Bureau of Prisons file a motion for his
compassionate release pursuant to 18 U.S.C. §3582 (c)
(1) (A) (i). Those requests were repeatedly denied, most
recently in June 2016 by the Assistant Director and General
Counsel of the Bureau of Prisons, Kathleen Kenney.
See Docket No. 885-13.
2016, DiMasi's attorneys met for at least the second time
with the United States Attorney for the District of
Massachusetts, Carmen Ortiz. See Docket No. 885-15
at 1; Nov. 1, 2016 Tr. at 26, 29. Ms. Ortiz subsequently
spoke with Ms. Kenney. Docket No. 885-15 at 1. An additional
medical test of DiMasi's ability to swallow was conducted
on August 3, 2016. On August 15, 2016, the Medical Director
of the Bureau of Prisons wrote that DiMasi met the medical
criteria for a reduction of sentence under the "Elderly
Inmates with Medical Conditions" provision of the
Bureau's compassionate release policy. See
Docket No. 907-1, Ex. G. He specifically noted that it is
"medically indicated that someone be present to assist
[DiMasi] with choking prevention while eating and
drinking" and that he "requires assistance with his
Instrumental Activities of Daily Living." Id.
stated earlier, on October 13, 2016, the government filed on
behalf of the Director of the Bureau of Prisons a motion,
pursuant to §3582 (c) (1) (A) (i), to reduce
DiMasi's sentence to time served. The Motion states, in
part, that DiMasi "is a senior who has served 56 months
(58%) of his 96-month term of imprisonment and is
experiencing deteriorating physical health that substantially
diminishes his ability to function in a correctional
facility." Docket No. 872 at 2. The Motion was not
accompanied by an affidavit or a supporting memorandum as
required by Rule 7.1(b)(1) of the Local Rules of the United
States District Court for the District of Massachusetts.
Therefore, as the court stated in its October 17, 2016
Memorandum and Order, "the government ha[d] provided the
court only unverified statements, but not any
evidence, regarding DiMasi's medical history in
prison, current medical condition, prognosis, or ability to
function in prison."Docket No. 873 at 1-2.
important to the administration of equal justice, and public
confidence in it, that established standards be employed and
standard procedures, including the requirements of Local Rule
7.1(b), be followed in every case. As Supreme Court Justice
Louis Brandeis wrote, "[k]nowledge is essential to
understanding, and understanding should precede
judging." Jay Burns Baking Co. v. Bryan, 264
U.S. 504, 520 (1924) (Brandeis, J., dissenting); see also
United States v. Sampson, 300 F.Supp.2d 275, 276 &
n.3 (D. Mass. 2004) (Wolf, D.J.) ("I always try to
understand the people that I am called upon to judge.
Usually, knowledge is a foundation for understanding.").
The requirements of Local Rule 7.1(b) that all motions be
accompanied by evidence and argument are intended to provide
judges with the information necessary to make decisions that
are based on proven facts and according to law, both of which
are essential to administering equal justice under law.
discussed at the November 1, 2016 hearing, it was
particularly important that the requirements of Local Rule
7.1 be satisfied in this case. First, motions for
compassionate release are very rare and, therefore,
unfamiliar. This court cannot recall receiving one in its 31
years of service. Nor have most of its colleagues ever been
presented with such a motion. Indeed, the instant Motion is
the first filed in the District of Massachusetts since the
Bureau of Prisons liberalized its stated compassionate
release policy in 2013, as discussed in §IV,
addition, as explained in §111.A, infra, in
deciding the Motion the court is required to consider the
need to avoid unwarranted disparities in sentencing.
See 18 U.S.C. §3582 (c) (1) (A) (i) and
§3553 (a) (6). Because motions for compassionate release
have historically been rare, the court has been required to
consider "whether the Director's decision to file
the Motion was influenced by DiMasi's former status as
the Speaker of the Massachusetts House of Representatives and
the stature of some who may be advocating for his
release." Docket No. 873 at 4. The Motion did not,
however, provide any information, let alone evidence,
concerning these issues.
on October 17, 2016, the court ordered the government to file
one or more affidavits, evidence, and a memorandum
addressing, among other things, the issues that the court had
identified and explained. Id. at 7-8. The court
offered DiMasi an opportunity to address the merit of the
Motion as well. Id. at 8.
government and DiMasi submitted responses to the October 17,
2016 Memorandum and Order on October 27, 2016. On October 28,
2016, the court ordered that, by October 31, 2016, the
parties address additional questions presented by those
submissions. See Docket No. 883. The responses to
that Order prompted the court to direct the government to
file another document from DiMasi's medical record.
See Docket No. 893. A hearing on the Motion was held
on November 1, 2016.
court wrote in the October 17, 2016 Memorandum and Order:
The decision to sentence DiMasi to serve eight years in
prison was made carefully, after the required weighing of all
of the §3553(a) factors. See Sept. 8 and 9, 2011
Transcripts. That sentence was affirmed on appeal. See
United States v. McDonough, 727 F.3d 143, 165-66 (1st
Cir. 2013). However, when sentencing DiMasi, the court could
not have foreseen that he would, as represented in the
Motion, develop cancer while in prison. The Motion presents
the court an opportunity to decide whether the eight-year
sentence that was most appropriate in 2011 should now be
reduced because of an unanticipated deterioration of
DiMasi's health. That decision too must be ...