Judge Mark Wolf said he intends to instruct the jury about the distinction between “lawful” lobbying and participating in an honest services scheme.
U.S. District Court Judge Mark L. Wolf is seen during a visit to Springfield in 2008.By KYLE CHENEY
BOSTON - Judge Mark L. Wolf said Wednesday he’s does not expect to instruct the jury that former House Speaker Salvatore DiMasi had to “cause” payments to be made to his codefendants – lobbyist Richard McDonough and accountant Richard Vitale – in order for a jury to convict him on charges that he violated his duty of “honest services” to the Massachusetts public.
Wolf’s remarks at the outset of the last day of witness testimony in DiMasi’s trial on corruption charges may prove a setback to defendants’ hope that jurors would be instructed that DiMasi could only be found guilty of those charges if DiMasi knowingly “caused” McDonough and Vitale to receive kickbacks. Wolf noted that his thinking on the issue could change as he debates matters with lawyers in the coming days.
Lawyers for the defendants ripped the broader analysis of the law – which has been embraced by prosecutors – and argued that the prosecution had reversed its original legal analysis, potentially putting the defendants at a disadvantage on the last day of the trial.
“They can’t do a one-eighty on the last day of testimony,” argued Martin Weinberg, Vitale’s attorney, who argued that the prosecution’s current analysis of causation “flies in the face of everything they have asked the court to instruct this jury.”
“To wait until the last defense witness to change horses … I don’t think at the end of a case based on the evidence that came in, they should be allowed to change,” added Thomas Drechsler, McDonough’s lawyer.
Thomas Kiley, DiMasi’s lawyer, added that the prosecution’s argument “sweeps so broadly” that “every passage of every bill where there is a paid lobbyist is implicated.” Technically, he said, anytime a lobbyist is paid for helping a bill get passed, it would satisfy the prosecution’s definition of “causation.”
Wolf noted he intends to instruct the jury about the distinction between “lawful” lobbying and participating in an honest services scheme.
The fight over “causation” is a technical but potentially critical element of the prosecution’s case against DiMasi. Prosecutors charge that DiMasi used his power as speaker to steer a pair of state contracts – a $4.5 million deal in 2006 and a $13 million deal in 2007 – to Cognos Corp., a Canadian software company. In exchange, prosecutors say, DiMasi received $65,000 in kickbacks funneled through a law partner, his accountant Vitale got $600,000 through a consulting agreement with Cognos and McDonough, DiMasi’s longtime friend and a Cognos lobbyist, got $300,000 on top of his $25,000-a-month lobbying fee.
The payments to McDonough and Vitale were made by Joseph Lally, a Cognos salesman who was a codefendant in the matter until he pleaded guilty in March. Lally provided crucial testimony for the prosecution last month, placing DiMasi at the center of the alleged scheme and batting back suggestions by defense lawyers that he is too dishonest and desperate to be believed.
The debate among the lawyers honed in on whether DiMasi “caused” or “directed” Lally to pay McDonough and Vitale in exchange for DiMasi’s efforts in support of Cognos, or whether Lally made the payments on his own, hoping to curry favor. Prosecutors say DiMasi didn’t need to direct Lally to make the payments but had to be aware that his actions could result in the payments in order to be found guilty of honest services fraud.
In a Tuesday filing, prosecutors argued that as long as the jury finds “that any payments to McDonough or Vitale were made in return or exchange for DiMasi taking official actions,” DiMasi’s role in “causing” the payments is not a factor. Knowledge of the payments alone, prosecutors said, is sufficient.
But Weinberg argued that the government’s case had been premised for years on the suggestion that DiMasi “directed” payments to McDonough and Vitale. He noted the prosecution’s indictment contends that DiMasi engaged in a scheme “to receive, and cause others to receive, money from Lally and Cognos in return for performing official acts as a member and Speaker of the Massachusetts House of Representatives that would further the interests of Lally and Cognos in the commonwealth of Massachusetts.” Defense lawyers, Weinberg said, had prepared to rebut the case built on that charge.
Weinberg said that the 11th-hour switch by prosecutors “dilutes” the government’s burden of proof and raises questions about whether the defendants had been denied due process and adequate notice of the charges against them.
But Judge Wolf disagreed.
“The due process notice requirement is satisfied by the obligation of the government to prove that what was done was done knowingly, willfully and with a specific intent to both defraud the public of DiMasi’s honest services and to deceive the public,” Judge Wolf responded.
In a nod to defendants, however, Wolf wondered whether the wording of the indictment – which he suggested had been crafted, in part, to provide “great stories for the media” – obligated the government “to prove more than the statute and the Supreme Court precedents require.”
Prosecutor Theodore Merritt countered that regardless of the legal argument, the prosecution’s case against DiMasi would have been the same.
“The same evidence from the government would be presented proving that [the payment to Vitale] is a kickback. The evidence would be the same,” Merritt said. “[DiMasi] has to take official action in return for the payments to his friend. He doesn’t have to think it up but it’s the taking of the official action in exchange for the kickback is what the government has to prove.”
Wolf added that he expects to instruct jurors that the alleged conspiracy did not have to “achieve its goals” in order for the defendants to be found guilty.