DiMasi defense targets a controversial law

During a hearing Wednesday in US District Court in Boston, lawyers for DiMasi and a codefendant, Richard Vitale, an accountant and former DiMasi campaign treasurer, said the 1988 statute that undergirds the “honest services’’ fraud charges against the four defendants is hopelessly vague and being misused by prosecutors.

The defendants are accused of scheming to rig multimillion-dollar state contracts for a Burlington software company, Cognos ULC, in exhange for hundreds of thouands of dollars, including $57,000 for DiMasi, who allegedly deprived Massachusetts residents of his honest services. But the lawyers said the 28-word statute that criminalizes “a scheme or artifice to deprive another of the intangible right of honest services’’ is so broad as to be meaningless and does not apply to DiMasi and his associates.

The lawyers plan to ask the court to dismiss the charges. If that fails, they will probably mount a challenge in the US Court of Appeals for the First Circuit, which, like other federal appeals courts, has grappled with the meaning of the federal law.

“We will be bringing a motion to dismiss challenging the statute for unconstitutional vagueness and challenging the statute as applied to these defendants,’’ Vitale’s lawyer, Martin Weinberg of Boston, said in a brief interview. “The courts are struggling to create some limit to this generic statute. And we believe that at a time when the courts are narrowing the statute, the government is trying to expand it in this case.’’

DiMasi’s lawyer, Thomas R. Kiley, said the defense attorneys made clear to District Court Chief Judge Mark L. Wolf at the hearing that there is a “general discomfort with the statute around the country, in all the circuits.’’

Assistant US Attorney Brian T. Kelly, chief of the office’s public corruption unit, said Friday he could not discuss the DiMasi case. Speaking generally, he said, “Honest-services fraud prosecutions are based on well-settled law, and we see no reason not to continue pursuing them. Congress has made its intent clear, and we intend to utilize the tools that are available to us.’’

Among those who have been convicted of theft of honest services charges in recent years are former Connecticut governor John G. Rowland, disgraced Washington lobbyist Jack Abramoff; and Canadian-born media baron Conrad Black. Federal prosecutors in Massachusetts used the statute to bring charges against former state senator Dianne Wilkerson in a pending case.

The June 2 indictment of DiMasi, Vitale, and two friends laid out a detailed alleged scheme to rig state contracts for Cognos in exchange for payments, some in monthly installments. All four allegedly received significant payouts when the contracts were signed by the state.

Weinberg said authorities have misapplied the statute because “there was no pattern of gifts to the speaker that caused him to deviate from honest services, there was no concealment that was illegal.’’

Whether defense lawyers in the DiMasi case will succeed by putting the 21-year-old law itself on trial is an open question.

Harvey A. Silverglate, a prominent Boston civil liberties lawyer and frequent critic of federal prosecutions, called the statute a “garbage pail’’ and said the Supreme Court has signaled that it is troubled by how prosecutors apply it.

In a recent case in which the high court declined to review the conviction of former Chicago city workers who made patronage hires, Justice Antonin Scalia wrote in a dissent: “Without some coherent limiting principle to define what “the intangible right of honest services’ is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators, and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct.’’

“What Scalia pointed out is that not every conduct which seems either immoral or unethical or even in violation of state law is automatically a violation of the federal fraud statute,’’ said Silverglate, who criticizes the statute in his soon-to-be-released book “Three Felonies a Day: How the Feds Target the Innocent.’’

Joseph F. Savage Jr., a Boston defense lawyer and former chief of the US Attorney’s Office public corruption unit, said critics of the law have legitimate concerns about how prosecutors apply it. He noted that the Supreme Court recently indicated that it will address some of those concerns when it agreed to review the 2007 conviction of Black. But Savage said the court “appears to be focused on private parties, not the public sector,’’ in its effort to clarify the law.

The law has a complicated history. In the 1970s and 1980s, federal prosecutors began using wire- and mail-fraud statutes to cover not only loss of money and property but fraud that deprived citizens of honest services. In 1987, the Supreme Court ruled against such practices and said the fraud statutes were limited to the protection of money and property.

A year later, Congress enacted the honest services statute that is frequently used today. Prosecutors love the law for the same reason that defense attorneys hate it: The government need not prove a loss of money or property, only that fraud deprived people of an intangible right to another’s honest services.

Federal prosecutors have not limited its application to public officials, such as former Illinois governor Rod Blagojevich, who faces theft of honest services charges in connection with his alleged scheme to sell President Obama’s vacated Senate seat. Prosecutors have also applied it to corporate executives in cases involving kickbacks or allegations that executives cheated a company. And in the 1990s, the government successfully brought a charge against three Baylor University basketball coaches for a scheme to obtain scholarships and credits for players in violation of National Collegiate Athletic Association rules. Baylor, the court found, was deprived of honest services.

Weinberg said defense lawyers in the DiMasi corruption case will seek to dismiss the charges in a motion arguing that the honest services statute is unconstitutional on its face and does not cover the allegations against their clients.

“Congress didn’t really tell us what the limits of the statute were,’’ Weinberg said. “And the indictment doesn’t tell us precisely how the defendant violated the federal statute.’’

Saltzman can be reached at jsaltzman@globe.com.