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United States v. Dimasi

United States District Court, D. Massachusetts

November 17, 2016

UNITED STATES OF AMERICA,
v.
SALVATORE F. DIMASI, Defendant.

          MEMORANDUM AND ORDER

          WOLF, D.J.

         TABLE OF CONTENTS

         I. SUMMARY...................................................1

         II. PROCEDURAL HISTORY ....................................... 14

         III. THE RELEVANT STANDARDS...................................21

         A. 18 U.S.C. §3582 (c) (1) (A) (i) .........................21 B. The Sentencing Guidelines ........................... 22

         IV. THE BUREAU OF PRISONS COMPASSIONATE RELEASE PROGRAM, PROCESS, AND PRACTICES............................................24

         V. THE FACTS................................................29

         VI. DISCUSSION...............................................45

         A. Extraordinary and Compelling Reasons Warrant a Reduction of DiMasi's Sentence to Time-Served ................. 45

         B. Supervised Release ......................... ......... 60

         VII. CONCLUSION...............................................68

         VIII. ORDER....................................................69

         I. SUMMARY

         In 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 DiMasi's sentence.

         For the 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.

         DiMasi's 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 observances.

         If 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 confinement.

         As 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.

         In 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.

         In 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.

         However, 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.

         In 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.

         Beginning 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 traditional practices.

         Before 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.

         The 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 warranted.

         In June 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 substantially diminished.

         Bureau 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.

         However, 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.

         On August 3, 2016, the first medical test to measure DiMasi's ability to swallow since 2014 was performed.

         An 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.

         On 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.

         On 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 conditions.

         Such a 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.

         Rather, 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 law.

         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.

         It is 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.

         Nevertheless, 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.

         The 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 sentence.

         Although 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.

         DiMasi's 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 custody.

         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.

         The 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.

         The 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.

         It 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.

         Rather, 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.

         However, 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.

         The 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.

         The 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.

         DiMasi's 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.

         Finally, 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 decision.

         In 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.[1] 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.

         The 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.

         The 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).

         The 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.

         As 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.[2] 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 eating.

         In 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.

         As also 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.

         In July 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.

         As 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."[3]Docket No. 873 at 1-2.

         It is 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.

         As 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, infra.

         In 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.

         Accordingly, 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.

         The 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.

         As the 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 ...

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