United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
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.
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.
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).
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
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.
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.
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.
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.
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).
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 ...