817 F.Supp.2d 9 (D.Mass. 2011), Cr. 09-10166-MLW, United States v. DiMasi

Docket NºCr. 09-10166-MLW.
Citation817 F.Supp.2d 9
Opinion JudgeWOLF, District Judge.
Party NameUNITED STATES of America v. Salvatore F. DiMASI and Richard W. McDonough, Defendants.
AttorneyAnthony E. Fuller, S. Theodore Merritt, Kristina E. Barclay, United States Attorney's Office, Boston, MA, for United States of America. Thomas R. Kiley, William J. Cintolo, Cosgrove, Eisenberg & Kiley, PC, Thomas Drechsler, Kenneth H. Anderson, Byrne & Drechsler, L.L.P., Martin G. Weinberg, Marti...
Case DateOctober 11, 2011
CourtUnited States District Courts, 1st Circuit, District of Massachusetts

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817 F.Supp.2d 9 (D.Mass. 2011)

UNITED STATES of America

v.

Salvatore F. DiMASI and Richard W. McDonough, Defendants.

Cr. No. 09-10166-MLW.

United States District Court, D. Massachusetts.

October 11, 2011

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[Copyrighted Material Omitted]

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Anthony E. Fuller, S. Theodore Merritt, Kristina E. Barclay, United States Attorney's Office, Boston, MA, for United States of America.

Thomas R. Kiley, William J. Cintolo, Cosgrove, Eisenberg & Kiley, PC, Thomas Drechsler, Kenneth H. Anderson, Byrne & Drechsler, L.L.P., Martin G. Weinberg, Martin G. Weinberg, PC, Kimberly Homan, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

WOLF, District Judge.

After a six-week trial, on June 15, 2011, defendants Salvatore DiMasi and Richard McDonough were convicted of conspiracy to commit honest services mail fraud, honest services wire fraud, and/or extortion under color of official right, and of honest services mail and wire fraud as well. In addition, DiMasi was convicted of extortion under color of official right. All of the charges involved payments made in exchange for official acts by DiMasi as Speaker of the Massachusetts House of Representatives to assist Cognos ULC obtain funded contracts for computer software with the Commonwealth of Massachusetts. The essence of all of the charges was that Joseph Lally, a co-defendant who cooperated and testified for the government, conspired with DiMasi, McDonough, and Richard Vitale, who was acquitted, to cause Cognos, and later Lally's company Montvale Solutions, to make payments in exchange for official acts by DiMasi as Speaker to benefit Cognos. As explained in detail in the August 30, 2011 Memorandum and Order denying DiMasi and McDonough's motions for acquittal or for a new trial, there was ample, credible evidence to prove that payments for this corrupt purpose were made to DiMasi personally, in the form of purported referral fees, through his unwitting associate in the practice of law, Stephen Topazio, and in

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the form of kickbacks paid to Vitale and, for the purpose of the charges involving extortion, McDonough. 1

On September 9, 2011, DiMasi was granted a downward variance from a Guideline sentencing range of 235 to 293 months and was sentenced to serve eight years in prison. McDonough was granted a downward variance from a Guideline sentencing range of 188 to 235 months and was sentenced to serve seven years in prison.

After hearing argument on September 23, 2011, the court denied DiMasi and McDonough's motions for bail pending appeal pursuant to 18 U.S.C. § 3143(b). The following is an transcript of that ruling and the reasons have been formalized and others have been information is included in footnote 55.

* * * * * *

I. INTRODUCTION

For the reasons I will describe, the defendants' motions to be released on bail pending appeal are being denied.

I postponed the hearing on these motions, instead of deciding them at the time of the sentencing when these matters are usually decided, because I wanted to consider them particularly carefully. I am called upon to decide whether there is a close question concerning whether I made a mistake and, if so, whether any error is going to make a difference on appeal. I wanted to make this decision thoughtfully, with proper recognition of the possibility that I made legal errors in this case. However, the applicable legal standard requires that to grant bail pending appeal I must find that there is a close question that is reasonably likely to result in an acquittal, a new trial, or a lower sentence. I cannot candidly say that I discern such an issue.

II. LEGAL STANDARDS

The answer to the questions presented is very much influenced by the standards that have to be employed in deciding them. The issue of release from detention pending appeal arises under 18 U.S.C. § 3143(b).2 I find the defendants have proven by clear and convincing evidence that, if released, they are not likely to flee or present a danger to the community.3 Indeed, the government does not dispute this. Defendants have not, however,

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shown that their appeal raises a substantial question of law or fact likely to result in reversal, a new trial, or a lower sentence.4

I have considered all of the issues raised by the defendants in their series of submissions on this matter. I have reached my decision analyzing all of those issues and employing the standard articulated by the First Circuit in Bayko, and the other relevant standards.5 Most of the issues have been discussed in previous oral and/or written decisions by me. I am now going to address only the issues that were argued on September 23, 2011. Defendants have characterized these as the issues with the best prospect of resulting in acquittal, a new trial, or a lower sentence.

The § 3143(b) standards were interpreted in Bayko. 6 The First Circuit held that § 3143(b) has " two distinct requirements: ‘ (1) that the appeal raise a substantial question of law or fact and (2) that if that substantial question is determined favorably to defendant on appeal, that decision is likely to result in reversal or an order for a new trial of all counts on which imprisonment has been imposed.’ " 7

As to the first requirement, the First Circuit has interpreted the words " substantial question of law or fact" to mean " a ‘ close’ question or one that very well could be decided the other way." 8 In Bayko, the First Circuit described the second requirement as " mean[ing] that if error is found, it must not be harmless or unprejudicial error." 9 It also defined the statutory phrase, " likely to result in reversal," as " mean[ing] that ‘ it is more probable than not that’ a favorable decision will result in reversal of the conviction or a new trial." 10

Another important standard for the purpose of this analysis is the standard for deciding a Rule 29 motion for acquittal at the trial level.11 The First Circuit will apply the same standard in analyzing the sufficiency of the evidence on appeal.12 I discussed that standard fully in my August 30, 2011 Memorandum and Order concerning the motions for acquittal or a new trial. 13 Among other things, the First Circuit, on appeal, will " ‘ scrutinize the evidence in the light most compatible with the verdict, resolve all credibility disputes in the verdict's favor, and then reach a judgment about whether a rational jury could find guilt beyond a reasonable doubt.’ " 14 In doing so, it will not " weigh the evidence or make any credibility judgments." 15

Like this court in deciding the Rule 29 motion, the First Circuit will be called upon to decide if the evidence is sufficient to permit a rational jury to find each essential element to have been proven beyond a reasonable doubt.16 However, the government does not have to rule out every

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" ‘ hypotheses ... congenial to a finding of innocence.’ " 17 Moreover, the government is not bound by all of the evidence that it presents. However, if the government introduces evidence contrary to the inferences it wants the jury to draw, it must introduce other direct or circumstantial evidence to relieve itself of the effect flowing from the evidence produced.18 In addition, the acquittal of one defendant on a particular charge is not relevant to the analysis of whether there was sufficient evidence to prove another defendant guilty of any charge, including the same charge, even if the acquittal and the finding of guilt are logically inconsistent.19

Furthermore, when the issue is the alleged insufficiency of the evidence concerning one alleged object of the conspiracy, or one theory concerning how corrupt payments were made, relief would not be granted if the defendant was properly convicted on another count or theory.20 Accordingly, in this case, defendants would not be entitled to relief because of some defect relating to the evidence concerning the alleged conspiracy to commit honest services fraud if the evidence was sufficient to properly prove a conspiracy to commit extortion.21 Similarly, there would be no relief granted if the evidence of the payments to DiMasi through Topazio alone was sufficient to prove either the conspiracy to commit extortion or to commit honest services fraud. In addition, as the parties know, I instructed the jury that it had to be unanimous with regard to any theory concerning allegedly corrupt payments on which it convicted.22

With regard to alleged errors of law and the jury instructions, the First Circuit has held that " [p]reserved claims of instructional error are reviewed under a two-tiered standard: [it] consider[s] de novo whether ‘ an instruction embodied an error of law,’ but ‘ [it] review[s] for abuse of discretion whether the instructions adequately explained the law or whether they tended to confuse or mislead the jury on the controlling issues.’ ' " 23 If an error was made in a jury instruction it is generally subject to harmless error review.24 Omission of an element of the offense is subject to harmless error analysis.25 Similarly, if the jury was instructed on a multiple object conspiracy, if one of the objects is legally flawed, the defect in the resulting

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conspiracy conviction is subject to harmless error review.26 Finally, harmless error review also applies if the court misstated an element of the offense.27 The harmless error inquiry was described by the Supreme Court in Neder. The issue is, " Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?" 28 The appellate court asks " whether the record contains evidence that could rationally lead to a contrary finding with respect to the" instructional error.29

Where the court has refused to give a requested...

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