Judge Mark Wolf opted against making an immediate ruling on the defense motion.
Former Massachusetts House Speaker Salvatore DiMasi arrives at federal court in Boston Friday for the continuation of his corruption trial.By KYLE CHENEY
BOSTON, JUNE 2, 2011… - Payments that went from a software company in 2006 and 2007 to associates of House Speaker Salvatore DiMasi were no different than companies hiring ex-senators or former military generals as lobbyists on public policy issues – a far cry from illegal bribes, lawyers for DiMasi and two codefendants insisted Thursday, urging Judge Mark Wolf to toss the case against their clients.
“The fact that large fees are paid to friends of insiders and lobbyists is not a criminal case,” argued Martin Weinberg, the lawyer for Richard Vitale, DiMasi’s longtime friend and accountant, a codefendant in the matter. “There’s simply not a quid pro quo.”
Wolf opted against making a ruling on the defense motion but he allowed defense attorneys and prosecutors to argue the matter for more than an hour, interjecting occasionally to add his own legal opinions and interpretations of relevant case law. He indicated that the arguments presented on both sides would help inform his instructions to the jury once the case concludes, as expected, later this month.
Prosecutors have spent the last four weeks attempting to convince a jury that DiMasi, Vitale and lobbyist Richard McDonough conspired to use DiMasi’s power to steer state contracts to Cognos Corp., a Canadian software company, in exchange for hundreds of thousands of dollars in kickbacks. The three men face charges of conspiracy, honest services wire fraud and honest services mail fraud. DiMasi faces a count of extortion as well.
Prosecutors say DiMasi’s efforts to steer two contracts – a $4.5 million contract in 2006 and a $13 million contract in 2007 – to Cognos netted him $65,000, funneled through his law partner Steven Topazio, who was hired to a lobbying contract with Cognos but never performed work for the company. Topazio paid DiMasi $4,000 a month derived from Cognos, part of a fee-sharing arrangement, a system defense attorneys have described as a legal agreement.
Prosecutors say McDonough received $300,000 for his role in the conspiracy and that Vitale received $600,000, some of which may have been set aside for DiMasi, who they argued was preparing to leave state government and join Vitale in the private sector.
After the prosecution concluded its argument Thursday, lawyers for the three defendants filed a 21-page motion asking the judge to throw out all charges against their clients, arguing that evidence presented by prosecutors was insufficient to convince “a rational factfinder” that the men are guilty “beyond a reasonable doubt.”
“The defendants are, accordingly, entitled to the entry of judgments of acquittal on all counts,” the defense lawyers argued in their motion.
Prosecutors flatly rejected the motion, arguing that the defense omitted ample evidence that would lead jurors to conclude a conspiracy took place. Anthony Fuller, one of the three assistant U.S. attorneys prosecuting the case, summarized the evidence presented over the last month and said that if jurors viewed the facts as the government presented them, they could easily conclude that a criminal conspiracy took place and that DiMasi used his official power as speaker to advance the alleged scheme.
“A lot of facts were omitted from what the defendants were arguing,” Fuller said. He added later, “There’s a whole wealth of sort of the cover-up evidence in the case that has been neglected [by the defense] to this point, which again, at this stage in the proceedings are worth mentioning.”
In their motion, Weinberg, McDonough’s attorney Thomas Drechsler and DiMasi’s attorney Thomas Kiley argued that the charges against DiMasi, Vitale and McDonough could not stand in a “post-Skilling” environment – a reference to a U.S. Supreme Court decision in 2010 that sharply limited the scope of honest services allegations.
In addition, the lawyers contended that the prosecution’s star witness, Cognos salesman Joseph Lally – who pled guilty in March to being part of the alleged conspiracy – never claimed that there was “an agreed quid pro quo in exchange for DiMasi’s using his legislative power to further Cognos’ interests.” Such a quid pro quo, they said, is an essential element of proving honest services fraud and conspiracy allegations.
“Absent that, the whole case falls apart,” said Vitale’s attorney Martin Weinberg, during an hour of defense arguments on the motion.
Defense lawyers said they considered the Cognos payments to McDonough and Vitale legal “gratuities” intended to curry favor and help the company gain access to DiMasi. The payments to Topazio, they said, fall into the same category.
In addition, Thomas Kiley, DiMasi’s lawyer, said there was not “any evidence whatsoever” that “official acts” by DiMasi were performed in exchange for payments from Cognos or to further an alleged conspiracy, in part because there was no pending legislation to conceivably benefit Cognos at the time the alleged conspiracy began.
“How can one infer an intent to form an agreement to perform official acts when there are none pending and none foreseeably coming before you?” Kiley wondered.
Wolf suggested that prosecutors need to decide whether they are more interested in bringing their case to the Supreme Court to help further develop case law that emerged from the Skilling decision or whether they “want to get a conviction and make sure it’s as bullet-proof as possible.”
“There may be some gray areas,” Wolf said.