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‘Broken’ DiMasi begs for leniency

But US judge hints sentence may be harsh

Salvatore F. DiMasi arrived at federal court yesterday with stepdaughter Ashley. Salvatore F. DiMasi arrived at federal court yesterday with stepdaughter Ashley. (John Tlumacki/Globe Staff)
By Milton J. Valencia
Globe Staff / September 9, 2011

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Salvatore F. DiMasi tearfully pleaded for mercy yesterday, saying he is a “broken man’’ who deserves the court’s compassion in setting his jail sentence.

“When you reflect upon my entire life’s work . . . I hope you find I am a good man . . . a man who deserves your compassion,’’ DiMasi told US District Court Judge Mark L. Wolf during an impassioned speech, during which he often paused to take drinks of water.

“They say the road to hell is paved with good intentions - I don’t want to go to hell, and I certainly don’t want to go to prison.’’

Wolf said that he will decide on a sentence by 11 a.m. today. And he seemed to signal a tough approach, ruling that DiMasi could be sentenced from 19 to 24 years in federal prison under sentencing guidelines - far more than the 12 years and 7 months that prosecutors had recommended. DiMasi’s lawyers contend that a sentence of three years would be sufficient.

Wolf said he is not bound by the guidelines and indicated he would not go as far as they allow. The judge said he may consider outside factors, such as the seriousness of the allegations and DiMasi’s three decades of positive service in public office.

Wolf engaged in several exchanges with DiMasi’s lawyers, who asked for leniency, arguing that DiMasi has been a longtime public servant.

The judge said he commended the loyalty of the former speaker’s supporters, but questioned whether DiMasi “sold those people out’’ by orchestrating a kickback scheme.

The judge also appeared to take issue with DiMasi’s public statements after the trial, in which the former speaker said he did not have the “intent’’ to commit a federal crime and thought that what he was doing was allowed by state law.

“Show me the state law that says legislators are authorized to take bribes,’’ the judge said, even introducing DVD footage of DiMasi’s statements as evidence. “That’s what this case is. That’s what the jury found.’’

Wolf pointed out that he has in the past encouraged the United States Sentencing Commission to strengthen guidelines for white-collar crimes, in hopes they would serve as a deterrent against corruption.

The judge said DiMasi inherited a responsibility to serve in office honorably and should have been aware that his actions were breaking the law, particularly after his two predecessors were convicted in federal court. Former speakers Thomas Finneran, who was convicted of obstruction of justice, and Charles Flaherty, convicted of tax evasion, did not serve federal sentences.

Knowing he could end up in federal court, “he should have stayed further away from this,’’ the judge said.

Wolf also calculated that DiMasi’s codefendant and friend, lobbyist Richard McDonough, could be sentenced to 15 years under sentencing guidelines, five years longer than proposed by the government.

McDonough’s lawyer, Thomas Drechsler, pleaded that a sentence of two to three years would be appropriate, saying he could find no sentence comparable to what prosecutors proposed for a man who was not an elected official.

McDonough directly apologized to the court, saying he embarrassed and humiliated himself, his family, and the lobbying profession.

“Your honor, I am deeply sorry. I hurt a lot of people and made a lot of mistakes,’’ McDonough said, adding, “Please be as merciful as you can.’’

DiMasi and McDonough, both 66, were convicted by a federal jury in June of conspiracy and honest services fraud - DiMasi was also convicted of extortion - for helping Cognos, a Burlington software company, win two contracts totaling $17.5 million, in exchange for secret payments. The contracts were awarded in 2006 and 2007.

DiMasi received $65,000 directly and prosecutors say he planned to benefit from hundreds of thousands of dollars that were paid to his associates. DiMasi resigned and was indicted in 2009, a year after a Globe series of stories exposed the scandal.

A third codefendant, DiMasi friend and financial adviser Richard Vitale, was acquitted of all charges.

A fourth man, Joseph P. Lally Jr., pleaded guilty and cooperated with prosecutors. He testified about the conspiracy, saying the plan called for him to funnel money to DiMasi, McDonough, and Vitale from the commissions he received for selling the Cognos software.

The trial, lasting about seven weeks, gave an ugly picture of behind-the-scenes dealings on Beacon Hill, with a who’s who list of witnesses, including Governor Deval Patrick.

Yesterday, lawyers argued over how to calculate the sentencing guidelines, with DiMasi’s lawyers arguing that Wolf should not consider Vitale’s alleged role in the scheme. Wolf said he has the authority to do so, and will, because enough evidence of Vitale’s role was introduced at trial.

DiMasi’s lawyers had also tried to minimize DiMasi’s role in the scheme, saying Wolf should consider only the $65,000 that was directly paid to the former speaker in the sentencing. Prosecutors argued that Wolf should consider the money paid to Vitale and McDonough as well.

But Wolf said his calculation will go even further, agreeing with a US Probation recommendation to factor in the $3.6 million that was paid to Lally by Cognos.

Based on that decision, DiMasi’s sentencing guidelines jump to 19 to 24 years.

After sentencing DiMasi and McDonough today, Wolf will decide whether to allow them to remain free pending an appeal of their conviction. Lawyers for the two men will argue that they should, saying their appeal - based on new definitions of honest services fraud - has a chance of success before the appeals courts. Prosecutors argue that the appeal will fail and that DiMasi and McDonough should begin serving their sentences immediately.

DiMasi asked for leniency, telling Wolf he will lose his law license once he is suspended, and his family may lose his pension and health benefits because of his conviction. He asked the judge for the ability to support his family.

But Wolf said he has given out lengthy sentences before, typically mandated sentences for street crimes including gun possession and drug distribution. But the judge questioned the difference between street crimes and white-collar crimes.

“Which person is more dangerous in our country,’’ Wolf asked, “someone who is doing what everyone he knows does, selling crack on a corner, or people who are undermining our democracy by successfully conspiring to sell their public office?’’

Milton J. Valencia can be reached at mvalencia@globe.com. Follow him on Twitter @miltonvalencia.