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High Court corruption ruling a challenge to DiMasi prosecutors

Limits law used in bribery trials

The ruling will narrow the range of activities considered to be a crime and might alter how prosecutors try the case involving Salvatore DiMasi. The ruling will narrow the range of activities considered to be a crime and might alter how prosecutors try the case involving Salvatore DiMasi.
By Shelley Murphy
Globe Staff / June 25, 2010

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A US Supreme Court ruling yesterday that limits the scope of a federal law used in corruption cases will not prevent prosecutors from going forward in the case against Salvatore F. DiMasi, the former House speaker, and three other men, but it might make the prosecutors’ job harder, according to lawyers familiar with the case.

The justices found that the law, which makes it a crime to “deprive another of the intangible right of honest services,’’ was too vague and should be used only to prosecute cases involving bribery and kickback schemes. DiMasi is accused of getting kickbacks for steering state contracts to a Burlington software firm.

The court ruled in separate cases involving former Enron chief executive, Jeffrey Skilling; a former newspaper executive, Conrad Black; and a former Alaska legislator, Bruce Weyhrauch. The court found all three were wrongly convicted of honest services fraud because their alleged misconduct did not involve bribes or kickbacks and sent their cases back to lower courts to determine whether their convictions on other charges should stand.

The cases were being closely watched by lawyers in the upcoming DiMasi trial who had asked the judge to dismiss all the honest services fraud charges against him and his codefendants on the grounds that the law was unconstitutional.

Thomas R. Kiley, the Boston lawyer who represents DiMasi, said he was heartened by the Supreme Court ruling because it narrowed the honest fraud services law “to its core.’’ The ruling, he said, makes it clear that it is not enough for prosecutors to accuse a public official of having a conflict of interest and not disclosing it.

DiMasi, who resigned as speaker in January 2009, was indicted a year ago on charges that he conspired with three associates to steer two state contracts worth $17.5 million to the software firm, Cognos, and in exchange had $57,000 funneled to him through a former law associate.

His three codefendants are Richard Vitale, DiMasi’s friend and former accountant; Joseph Lally, an independent sales agent for Cognos; and Richard McDonough, a former lobbyist for Cognos. A spokeswoman for the US attorney’s office declined to comment yesterday on what impact, if any, the ruling will have on the case.

Jack Falvey, a former federal prosecutor, said the Supreme Court’s ruling narrows the range of activity that is considered a crime under the honest services fraud statute and will probably affect how prosecutors present the DiMasi case to a jury.

“They are going to need to provide evidence that the payments that went to DiMasi’s law firm were intended and accepted as a quid pro quo for official conduct or something very close to that,’’ said Falvey, a partner in Goodwin Procter’s Litigation Group who specializes in white collar criminal defense.

He said the law had been widely criticized for being so vague and overly broad that prosecutors were using it to turn potential ethics violations into federal crimes.

“To my mind, it requires prosecutors to have powerful evidence of intentional wrongdoing in order to bring a case,’’ Falvey said.

“And most people would say that’s an appropriate line to draw for what is criminal conduct versus what is not criminal conduct.’’

Martin G. Weinberg, the Boston lawyer who represents Vitale, said the Supreme Court ruling helps the defense team in the case against DiMasi, Vitale, and the others because “it prohibits the government from proceeding on certain of their alleged theories of prosecution.’’

Lally’s lawyer, Robert M. Goldstein of Boston, said the ruling “eradicates one of the three foundations of the government’s prosecution and creates future challenges to the indictment.’’

He said the ruling prevents the government from arguing that undisclosed conflicts of interest by his client, DiMasi, and the others amounted to honest services fraud.

Thomas Drechsler, the Boston lawyer who represents McDonough, said the ruling clarifies a law that was controversial and will help narrow the scope of the government’s case.

In a motion filed in November, defense lawyers representing DiMasi and his codefendants urged the trial judge to dismiss the honest services fraud charges, arguing that the law was “unconstitutionally vague’’ and should be stricken.

Prosecutors argued that the law was constitutional and was enacted by Congress “because it believes local corruption is a matter of significant federal interest.’’

US District Chief Judge Mark L. Wolf, who is presiding over the DiMasi case, did not decide the issue because he was waiting for yesterday’s ruling by the Supreme Court.

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