Former Massachusetts House of Representatives Speaker Salvatore DiMasi asked a federal appeals court to overturn his eight-year sentence for accepting bribes because of insufficient evidence and improper jury instructions.
On February 5, the U.S. Court of Appeals for the First Circuit held combined oral arguments in DiMasi’s and co-defendant Richard McDonough’s appeals.
DiMasi and McDonough, a former lobbyist, were convicted in June 2011 of conspiracy, honest services mail fraud and honest services wire fraud. DiMasi was also convicted of one count of extortion.
The jury found that DiMasi took $65,000 in bribes for helping Canadian software company ULC Cognos, which International Business Machines Corp. later acquired, secure $17.5 million worth of contracts with the commonwealth of Massachusetts. The jury also found that McDonough was involved in the conspiracy and a scheme to hide the payments to DiMasi by using other people as conduits.
In September 2011, Chief Judge Mark Wolf of the District of Massachusetts sentenced DiMasi to the eight-year prison term, plus two years of supervised release. He ordered DiMasi to forfeit $65,000 and pay a $700 special assessment.
Wolf sentenced McDonough to seven years in prison and two years of supervised release. He ordered McDonough to forfeit $250,000 and pay a $50,000 fine.
In November 2011, the First Circuit denied bail to DiMasi.
DiMasi in his brief argues that a former Cognos employee who testified for the government "did not testify that he and [DiMasi] reached an agreement whereby payments to or for DiMasi were to be exchanged for the performance of official acts."
He also argues that there wasn’t enough circumstantial evidence to overcome the lack of direct evidence of a bribery scheme. In addition, DiMasi asserts that because he was a practicing lawyer serving in the legislature part-time, the government was required to prove that he was involved in an explicit quid pro quo agreement.
DiMasi further contends that the jury should have received instructions on quid pro quo and what state lawmakers may do. He notes that, unlike federal legislators, Massachusetts state legislators can act as an attorney or agent for private parties in contract matters with the state.
The government in its brief argues that there was "substantial direct and circumstantial evidence" including the "size, manner, and timing of the corrupt payments."
The government also asserts that the jury instructions "adequately distinguished bribes and extortionate payments from gratuities" and properly noted that payments to compensate for lobbying activity were legal.
Judge Jeffrey Howard sat on the panel, along with Senior Judge Kermit Lipez and retired U.S. Supreme Court Justice David Souter, who heard the case by designation.
Referring to former Cognos vice president Joseph Lally’s testimony that he hoped to get some benefit from the scheme, DiMasi’s lawyer, Thomas Kiley of Boston’s Cosgrove, Eisenberg and Kiley, argued that "a hope or an expectation does not amount to an agreement."
Lipez asked Kiley whether he took the position that quid pro quo means there has to be an explicit link between payment and an official action.
When Kiley answered "no," Lipez asked him to address the government’s theory that the payments were for DiMasi’s benefit with the expectation that he’d do whatever is necessary to secure funding for the software. "That’s a kind of stream of payment theory in return for whatever the official has to do to secure the benefit that the payors are seeking," Lipez said.
Kiley replied, "There needs to be an agreement, an expectation. A hope isn’t enough. It has to be an intent to do whatever it is that the other side wants. There was no agreement."
The government’s lawyer, John-Alex Romano, a trial attorney in the Justice Department’s Appellate Section of the Criminal Division, argued that "Lally’s direct testimony was far more indicative of quid pro quo bribery than the defense is letting on here."
Sheri Qualters can be contacted at firstname.lastname@example.org.