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Federal judge rejects DiMasi appeal for bail

Former House speaker Salvatore F. DiMasi faces eight years in prison. Former House speaker Salvatore F. DiMasi faces eight years in prison. (Steven Senne/Associated Press)
By Milton J. Valencia
Globe Staff / September 24, 2011

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Disgraced former House speaker Salvatore F. DiMasi lost his bid yesterday to remain free pending an appeal of his conviction on political corruption charges and must report to a federal prison Nov. 16.

In rejecting DiMasi’s request for bail, US District Court Chief Judge Mark L. Wolf said he found no likelihood that the former lawmaker will be successful in his appeal to have his conviction overturned or his sentence reduced.

Wolf also ordered that DiMasi codefendant Richard McDonough report to federal prison Nov. 16.

“The defendants have not shown their appeal raises a question of law or fact likely to result in a new trial or a reduction in sentence,’’ Wolf said following an hours-long hearing yesterday. “I find it is not a close question.’’

Once one of the most powerful politicians in the state and the first Italian-American to be elected Massachusetts speaker, DiMasi will serve eight years in prison for steering state software contracts to a Burlington software company in exchange for secret payments. DiMasi, describing himself as a “broken man,’’ begged for leniency before his sentencing earlier this month.

Thomas Kiley, a lawyer for DiMasi, would only say yesterday that “we’re going to continue to fight to prove Sal’s innocence.’’ DiMasi did not comment on the ruling.

Martin Weinberg, who is a lawyer for McDonough and is leading the defense team in the appeals process, said they will ask the US Court of Appeals for the First Circuit to stay Wolf’s order that the men report to prison until their appeal can be heard.

Weinberg said that appeals courts have overruled district court judges before and added that DiMasi’s case is testing new legal standards set by a 2010 US Supreme Court decision. His case is one of the first to go to trial since that decision, and he has grounds for an appeal, Weinberg said.

“We will argue that there remain compelling issues that need to be addressed,’’ Weinberg said. “There are issues we consider profoundly important that test the [new standards] of the Supreme Court decision.’’

The ruling narrowed the scope of evidence allowed in honest services prosecutions - the nature of the case against DiMasi - to require that prosecutors show that a public official knowingly caused payments to be made to him or an associate in exchange for official acts.

DiMasi and McDonough, both 66, were convicted in June of conspiracy to defraud the United States, as well as honest services mail fraud and wire fraud for helping the software company Cognos win state contracts. DiMasi was also convicted of extortion.

DiMasi received the longest federal sentence handed out to an elected official in Massachusetts. McDonough was sentenced to seven years in prison.

Cognos won $17.5 million in contracts, with DiMasi’s support. DiMasi received $65,000 directly from a former salesman, though prosecutors say he planned to benefit from the payments to his associates after he retired.

A third codefendant, Richard Vitale, was acquitted of all charges.

A fourth man, former Cognos salesman Joseph P. Lally Jr., cooperated with prosecutors and testified about the alleged scheme in exchange for a sharply reduced sentence. Prosecutors are expected to ask that he serve two to three years in prison. He is to be sentenced next month.

The core of DiMasi’s appeal is that prosecutors failed to prove he knowingly caused payments to be made in exchange for his support of Cognos, and defense lawyers say the only evidence of that was provided by Lally, a self-admitted liar. They argue that poor jury instructions and a lack of evidence warrant a new trial.

But Wolf ruled yesterday that he gave proper jury instructions, and that the federal jury in the case found enough evidence to convict DiMasi of honest services fraud and extortion.

“All of this evidence would be able to convince a jury and an appeals court that these payments were kickbacks and that Mr. DiMasi is the one who was causing these payments to be made,’’ said Assistant US Attorney S. Theodore Merritt.

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