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United States v. Dimasi

United States District Court, D. Massachusetts

March 31, 2017



         I. SUMMARY

         As authorized by the November 17, 2016 Memorandum and Order, (the "November 17, 2016 Order"), defendant Salvatore DiMasi has moved that the terms of his Supervised Release be revised to replace the at least six months of home confinement with a 7:00 p.m. to 7:00 a.m. curfew (the "Motion"). For the reasons described below, the Motion is being denied without prejudice.

         However, the court is authorizing the Probation Department ("Probation") to allow DiMasi to participate in a cardiac rehabilitation program prescribed by his cardiologist and, if deemed appropriate for him by Probation, the YMCA "Live Strong" program. In addition, the previous authorization for DiMasi to exercise one hour a day is being increased to up to two hours a day to the extent approved by Probation. In the future, DiMasi shall first address any additional requests to participate in programs, or similar requests, to Probation rather than initially to the court. Probation will grant reasonable requests in the future as it has in the past.


         The following background is more fully described in the November 17, 2016 Order. See United States v. DiMasi, 2016 WL 6818346 (D. Mass. Nov. 17, 2016).

         In 2011, the court sentenced DiMasi to serve eight years in prison for extortion and related crimes committed while he was the Speaker of the Massachusetts House of Representatives. DiMasi began serving that sentence in November 2011.

         It was discovered in 2012 that DiMasi had cancer in his neck and tongue. He was treated with chemotherapy and radiation. This treatment resulted in DiMasi needing to receive nourishment through a feeding tube for about a year. DiMasi has been free of cancer since at least July 2013.

         Beginning in 2015, DiMasi and his attorneys made a series of requests that the Bureau of Prisons (the "BOP") file a motion with the court seeking DiMasi's early release pursuant to 28 U.S.C. §3582(c) (1) (A) (i) . That statute authorizes a court, upon motion by the BOP, to reduce a sentence for "extraordinary and compelling reasons." DiMasi's requests were repeatedly denied by the BOP. Most recently, in June 2016, the Assistant Director and General Counsel of the BOP denied DiMasi's request for such a 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 institution was not substantially impaired.

         However, in July 2016, four lawyers representing DiMasi pro bono met with the United States Attorney for the District of Massachusetts. The United States Attorney subsequently spoke to the General Counsel of the BOP who had recently denied DiMasi's request to encourage reconsideration of that decision.

         In August 2016, a medical test was done to evaluate DiMasi's ability to swallow. A BOP doctor interpreted the results as indicating that: DiMasi's throat had narrowed; he had great difficulty swallowing; and his condition was serious, deteriorating, and unlikely to improve. The Medical Director of the BOP subsequently concluded that "it is medically indicated that someone be present to assist [DiMasi] with choking prevention while eating or drinking." Id. at *3. The BOP could have assigned an inmate companion to monitor DiMasi while he was eating or drinking. It chose instead to file a motion for his early release.

         For the reasons fully explained in the November 17, 2016 Order, the court allowed that motion. It explained, in part, that:

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.

Id. at *4 (emphasis added).

         The court found, however, that the reduction of DiMasi's sentence was justified only if certain new conditions of Supervised Release were imposed. More specifically, the court ...

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