by Zachary Deubler
After an eight-day jury trial in December 2017, the defendant was found guilty on thirty-one counts related to money laundering and wire fraud. He was sentenced to a total of 96 months imprisonment, followed by three years of supervised release.
Shortly after his sentencing in January 2017, but before his incarceration for his underlying conviction, the defendant suffered a grand mal seizure. A subsequent CT scan showed a mass in the right temporal lobe of his brain, and a later MRI showed an infiltrative mass-like lesion suggestive of glioblastoma multiforme (GBM). That same January, the defendant underwent subtotal tumor resection which postponed his incarceration.
A postoperative MRI showed that the bulk of the tumor had been removed, though some residual tumor was still seen in scans. After his surgery and his initial round of radiation therapy, the defendant self-reported to the Bureau of Prisons to begin his sentence. Subsequent tumor pathology conducted in prison showed that mass was consistent with a high-grade (WHO Grade III) GBM.
In July 2018, the prison’s doctors evaluated the defendant and projected that he had less than 18 months to live.
That’s when DiMuroGinsberg began its hard-fought battle to obtain a compassionate release for this dying prisoner. On December 21, 2018, the President signed the First Step Act of 2018 into law. Among other reforms, the First Step Act amended 18 U.S.C. § 3582 to permit defendants to file their own motions for compassionate release when, among other requirements, there are extraordinary and compelling reasons to warrant the reduction of the prisoner’s sentence to time served. Among the accepted “extraordinary and compelling reasons” to justify a reduction in sentence is the diagnosis of a terminal illness, such as brain cancer.
Though a defendant might qualify under the First Step Act for a reduction in sentence, the defendant must nevertheless prove that they are deserving of such a reduction; by no means is the diagnosis of a terminal illness grounds for an automatic reduction in sentence. As was the case here, the government often fights the release of those who seek compassionate release under the new First Step Act.
The type of cancer the our client suffered from tends to present mild symptoms—headaches, mild seizures, and fatigue—until the very end life where the patient can suffer from a sudden and sharp decline in health. This presents its own obstacles in convincing a court that a particular defendant is sick enough to warrant a reduction in their sentence, when at first glance they appear to be fine. Though the defendant’s symptoms in this particular case were initially mild, his health deteriorated while in prison; an MRI in August 2019 showed an enhancing mass, and an MRI in November 2019 showed a new brain mass. Given his disease progression, the prisoner’s oncologist took him off the standard chemotherapy regimen and placed him on different drug regiment in a last-ditch attempt to stave off the cancer—it was still a fight to get the release.
In February 2020, the defendant was found unconscious on his cell floor by his cellmate, suffering from yet another grand-mal seizure. After the defendant was brought to the prison’s urgent care center, he continued to suffer from uncontrollable seizures that did not respond to anti-seizure medication. When he was partially stabilized the prison’s medical staff transferred him to a local hospital’s ICU where he was subsequently intubated and placed in a medically induced coma surrounded by prison guards and cut off from all non-approved contact.
This sudden progression of his illness was enough to finally secure a reduction in his sentence. The defendant subsequently died several days later in the hospital ICU. It was March 4, 2020.
Even though DiMuroGinsberg is pleased to have secured his release, which enabled his family to see him in his final days, we are reminded of those still suffering in our nation’s prisons who are unable to spend their final moment surrounded by those who care for them.
DiMuroGinsberg received an Outstanding Achievement Award from the Washington Lawyers’ Committee for the work we did on this compassionate release case. This was done pro bono by DimuroGinsberg’s Nina Ginsberg and Zachary Deubler in conjunction with the FAMM (Families Against Mandatory Minimums), Washington Lawyers’ Committee, NACDL Compassionate Release Clearinghouse.