United States v. McDonough , 727 F.3d 143 ( 2013 )

United States Court of Appeals
For the First Circuit
Nos. 11-2130
11-2163
UNITED STATES OF AMERICA,
Appellee,
v.
RICHARD W. MCDONOUGH and SALVATORE F. DIMASI,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Howard, Circuit Judge,
Souter,* Associate Justice,
and Lipez, Circuit Judge.
Martin G. Weinberg, with whom Kimberly Homan was on brief, for
appellant Richard W. McDonough.
Thomas R. Kiley, with whom William J. Cintolo and Cosgrove,
Eisenberg & Kiley, P.C. were on brief, for appellant Salvatore F.
DiMasi.
John-Alex Romano, Attorney, Appellate Section Criminal
Division, United States Department of Justice, with whom Carmen M.
Ortiz, United States Attorney, S. Theodore Merritt, Kristina E.
Barclay, Assistant United States Attorneys, Lanny A. Breuer,
Assistant Attorney General and John D. Buretta, Deputy Assistant
Attorney General, were on brief, for appellee.
*
Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
August 21, 2013
HOWARD, Circuit Judge. After a six-week trial, a jury in
the District of Massachusetts convicted Salvatore F. DiMasi, the
former Speaker of the Massachusetts House of Representatives, and
Richard W. McDonough, a lobbyist, of numerous crimes resulting from
a scheme to funnel money to DiMasi in exchange for political
favors. A third alleged participant, DiMasi's friend and financial
advisor Richard Vitale, was acquitted. A fourth, Joseph Lally,
pled guilty and cooperated with the government. The basic contours
of the scheme saw Lally, as an employee of one company and later as
a principal in another, make payments to DiMasi, who in return took
official actions in his role as House Speaker to benefit Lally's
business concerns. The money was funneled to DiMasi through
McDonough, Vitale and Steven Topazio, an attorney who shared a law
practice with DiMasi and who was not criminally charged.
The district court denied DiMasi's and McDonough's post-
trial motions and subsequently sentenced them to ninety-six and
eighty-four months' imprisonment, respectively. On appeal, each of
them advances a panoply of arguments that fall into four general
categories: 1) sufficiency of the evidence; 2) jury instructions;
3) evidentiary issues; and 4) sentencing. After considering the
extensive arguments of able counsel, we affirm the convictions and
sentences.
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I. FACTUAL BACKGROUND
To the extent that the appellants assert claims of
insufficient evidence, we describe the facts in the light most
favorable to the jury's verdict. United States v. Urcioli, 613
F.3d 11, 13 (1st Cir. 2010) ("Urcioli II"). We first outline the
salient facts underlying the convictions, adding more details later
as necessary.
A state representative since 1979, DiMasi was elected
Speaker of the Massachusetts House of Representatives in September
2004. He was also a practicing attorney, but as his legislative
and political responsibilities increased, his income from his law
practice declined and his personal debt grew. Both McDonough and
Vitale were long-standing friends of DiMasi.
Until February 2006, Lally was a Vice President of Cognos
Corporation, an international software company. Lally was the head
of Cognos's lobbying arm, the aim of which was to boost the sale of
Cognos software to state and local governments. After leaving
Cognos in 2006, Lally formed Montvale Solutions, a reseller of
Cognos software, for which Montvale was paid a twenty percent
commission. Lally and DiMasi were not strangers, as DiMasi had
previously represented Lally in a criminal matter and also attended
his wedding. Cognos was one of McDonough's lobbying clients. He
assisted Lally in gaining access to the government officials who
would make decisions about software purchases and funding.
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In December 2004, McDonough told Lally that he was
looking for a way to supplement DiMasi's income. He suggested that
Lally have Cognos hire DiMasi's law partner Topazio and pay him a
monthly retainer, a portion of which would be transferred to DiMasi
under the auspices of the lawyers' existing fee-sharing
arrangement. DiMasi subsequently told Topazio that McDonough would
soon be referring a new client to him. Later in December,
McDonough and Lally met with Topazio, whereupon they agreed that
Cognos would retain Topazio for six months at a rate of $5000 per
month. Although Topazio's legal practice was focused on real
estate matters and criminal and personal injury cases, McDonough
explained that Cognos would be hiring him for contract work related
to Cognos software. Lally testified that he agreed to the "sham"
contract in order to "funnel money" to DiMasi and that he was
trying to "gain favor with the Speaker, to have him help us close
software, cut deals, and obtain funding for us."
After the deal was struck, McDonough told Lally that it
was important for Lally and Cognos to "find something for []
Topazio to do to sort of cover [their] ass if something ever[] blew
up." As Lally had authority only to hire lobbyists, he told
McDonough that he would hire Topazio for that function, rather than
lawyering, in order to ensure that the hire would be approved by
Cognos. Topazio received a six-month contract from Cognos in March
2005, but was surprised to see that it was a lobbying contract, not
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one for legal services as had been discussed at their earlier
meeting. When Topazio made further inquiries, Lally presented it
to him as a "take it or leave it" proposition. Topazio also called
DiMasi, who instructed him to sign the contract, rather than "screw
up" the arrangement by attempting to negotiate terms with Lally.
Topazio complied.
As provided by the contract, Topazio received the first
$5000 payment from Cognos in early April 2005. Complying with
DiMasi's demand, Topazio paid $4000 to DiMasi as a referral fee, a
figure that was higher than their typical fee-sharing arrangement,
although Topazio subsequently reverted to splitting the payment
evenly with DiMasi. The contract was renewed three times, with
Topazio receiving $125,000 from Cognos and transferring $65,000 to
DiMasi. At one point in time, Cognos failed to make several of the
$5000 payments to Topazio and "caught up" with one payment of
$25,000, which DiMasi demanded from Topazio in its entirety.
DiMasi returned Topazio's $25,000 check, however, and requested
that he send four smaller checks, which Topazio did. At no point
during the time that Topazio was under contract did Cognos, Lally,
or McDonough ask him to perform any work.
In 2005, at roughly the same time as the Lally-McDonough-
Topazio deal was being finalized, the Massachusetts Department of
Education ("DOE") requested proposals for a pilot program known as
Education Data Warehouse ("EDW"), that would employ software to
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aggregate DOE data from multiple databases into a single format.
The DOE's plan was to spread the EDW project statewide, eventually.
Cognos wanted to procure both the pilot and statewide contracts,
from which Lally would receive commissions on payments to Cognos.
Cognos submitted a $5 million bid, with $500,000 for the
software relating to the pilot program and the remaining $4.5
million targeted at the statewide project if the pilot program
proved successful. Cognos was awarded the pilot project in August
2005, but the statewide project would require legislative funding.
Lally then impressed upon McDonough the importance of "get[ting] to
the Speaker [to] get funding for this project that DOE wanted."
Lally also "reminded" McDonough of the relationship with Topazio,
telling him that "it was time for it to pay off." McDonough
responded with a promise to contact DiMasi.
Prior to the award of the pilot contract, DiMasi and
McDonough discussed with Lally the prospect of DiMasi speaking with
DOE Commissioner David Driscoll on Cognos's behalf. Among the
issues that Lally wanted DiMasi to raise with Driscoll was the
claim that a Cognos competitor had provided a poor software product
for the state trial court system. In October 2005, after the pilot
project award, Driscoll spoke with DiMasi about legislation to fund
the statewide project. DiMasi cautioned Driscoll not to choose
"the company that screwed up the courts." When Driscoll told
DiMasi that he thought that Cognos would be selected, DiMasi
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expressed that he "was fine with that" and said, "if we can help,
let us know." DiMasi also contacted House Majority Whip Linda
Hawkins regarding the EDW project, instructing her to inform
Driscoll that DiMasi would ensure that any data collection
enterprise that DOE proposed would be included in the state
budget.
In fact, Massachusetts Governor Romney did not include
the funding in his proposed 2007 budget. Lally conferred with
McDonough about speaking with DiMasi; McDonough told him that he
would "take care of it." DiMasi subsequently had his legal counsel
draft a budget amendment providing $5.2 million for the overall EDW
project, $4.5 million of which was specifically earmarked for
software. The draft amendment was shared with McDonough and Lally.
By this time, Lally had already left Cognos for Montvale.
Before doing so, however, he negotiated a deal with Cognos that
provided him a 20% commission on software deals that he had
arranged, but had not yet closed. EDW was one such deal. Lally
also advised his successor at Cognos, Christopher Quinter, never to
cancel a contract "for a lobbyist named Topazio." He said that
Topazio was a "friend to Sal" and would be helping Lally. Fearing
that an inquisitive Quinter would uncover the details of the scheme
involving McDonough, Topazio and DiMasi, Lally also told Quinter
not to tell McDonough about the Topazio deal, even though,
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obviously, McDonough was privy to it. Lally explained that he
wanted Quinter "to stay as far away from [the deal] as possible."
As the legislative process moved forward, State
Representative Robert Coughlin sponsored the EDW amendment -- with
the software earmark -- because he was "honored" to make a proposal
that was of such importance to the Speaker. DiMasi's staff also
informed the House Ways and Means Committee of the Speaker's
support for the EDW project, and the staff was kept in the
informational loop regarding the legislative progress. At some
point while the legislation was pending, DOE asked that the earmark
be removed from the legislation out of fear that the $4.5 million
designated for software would not leave enough money for
implementation and deployment. Lally voiced objection to DiMasi
because such a move would reduce his commission. DiMasi ensured
that the earmark remained in the legislation.
In May 2006, as the budget -- including the EDW amendment
and software earmark -- neared enactment, McDonough told Lally that
he would have to pay $100,000 each to McDonough and to DiMasi's
friend and financial advisor Vitale after the deal closed.
McDonough told Lally that the money paid to Vitale was to be
shifted to DiMasi through a line of credit that Vitale would extend
to him. Lally received his commission when the budget was signed
into law. He testified that he paid the money because he was "told
that's what I need to do in order to get the deal and the funding
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through the Speaker." DiMasi thanked Lally when the latter
informed him that he had given Vitale a check for $100,000. In
June 2006, a company that Vitale controlled extended a $250,000
line of credit to DiMasi in exchange for a third mortgage on his
home. DiMasi drew on the line of credit, repaying it only after
the media began looking into his relationship with Cognos. Also in
June, but before the budget was passed, Lally played golf with
McDonough and DiMasi. At one point, the Speaker said to the other
two men, "I am only going to be Speaker for so long, so it is
important that we make as much hay as possible." After giving
Lally a "high five," McDonough said, "How about that. You got the
speaker telling you something like that."
As the EDW machinations were concluding, DiMasi,
McDonough and Lally charted a course designed to legislate another
Cognos contract, which would in turn generate a commission for
Lally and payments to McDonough and DiMasi. The plan centered
around obtaining a software licence for Cognos software known as
Performance Management ("PM"), which was designed to improve the
performance of state agencies through substantial data collection.
In Massachusetts, responsibility for statewide technology
matters rests with the Information Technology Division ("ITD") of
the Office of Administration and Finance. Lally began the process
by telling the acting head of ITD, Bethann Pepoli, that DiMasi
wanted to discuss PM. At Lally's urging, Pepoli met with DiMasi
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and his chief of staff. Despite his own lack of computer
sophistication, DiMasi, armed with talking points that Lally had
provided, said that he wanted software on his computer to track
state spending. Despite Pepoli's protests that existing software
could accomplish the task, DiMasi instructed her to work with his
staff to develop a bond bill for the project. Later in 2006,
McDonough received draft legislation from Lally and his partner at
Montvale, Bruce Major, that described the PM software in a way that
helped ensure Cognos's selection for the project. The legislation
also proposed $15 million in funding, $5 million more than ITD's
estimate.
After Governor Patrick took office in early 2007, DiMasi
urged him to include the $15 million in funding in the state's
emergency bond bill, which was usually targeted at immediate needs.
The Governor's office initially balked, since the Governor did not
want the emergency bill laden with non-essential items and because
a general bond bill would be proposed within a short time. The
measure was eventually included in the emergency bill, which was
passed into law in March 2007. State officials testified that the
$15 million would not have remained in the emergency bond bill if
the Speaker had not expressed his interest.
Even after the bond bill passed, Cognos faced competition
from other vendors to win the contract award. Once again DiMasi
got involved, meeting with various state officials and the
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Governor, and recommending that Cognos be selected as the PM
vendor. Phone records also showed calls between Lally, Vitale,
DiMasi and McDonough on one particularly important day of meetings.
Although Administration and Finance Secretary Leslie Kirwan's
concerns over the cost of the contract led her to negotiate a $2
million reduction from the proposed $15 million, Cognos was awarded
the contract. Kirwan expressed to a colleague her hopes that "the
big guy down the hall" -- meaning DiMasi -- was happy. Despite his
expressed interest in funding the project, neither DiMasi nor his
staff ever followed up with state officials about the project or
its implementation after the bill's passage.
Prior to the PM bill's passage, Vitale told Lally that he
would have to be paid $500,000 to ensure the legislation's success.
Upon receiving a $2.8 million commission from Cognos after the bill
passed, Lally paid $500,000 to an entity controlled by Vitale from
which DiMasi would draw funds, as well as $200,000 to McDonough,
who then returned $50,000 to Lally, unbeknownst to Lally's partner.
After the PM contract was signed in August 2007, an
unsuccessful bidder lodged a formal protest, claiming that the bid
was the product of irregularities in the process. After a review,
the contract was voided, and Cognos's successor in interest had to
return the $13 million to the Commonwealth. No replacement project
was sought or funded.
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In March 2008, Boston Globe reporters began raising
questions about the cancelled Cognos contract, eventually
publishing a story on March 10. Before the story ran, each of the
participants involved in securing the deal began covering his
tracks. For example, DiMasi told his press secretary that he did
not know Lally and was unaware of payments to Topazio or of the
Topazio-Cognos contract. He also remarked to Topazio that certain
check register entries reflecting payments to DiMasi should get
"lost." McDonough was present when the Globe called Lally for
comment before publishing the first story.1 McDonough responded,
"Oh, the shit's going to hit the fan now." After the story ran,
McDonough and Lally frisked each other whenever they met to ensure
that neither was "wearing a wire" to record the other. DiMasi also
telephoned a meeting attended by McDonough, Lally and Vitale and
admonished the trio, "If one of us breaks, we all fall." Two
months after the first Globe story, DiMasi withdrew funds from his
retirement account to pay off roughly $179,000 drawn on his line of
credit.
In October 2009, a grand jury returned a superseding
indictment charging DiMasi, McDonough, Vitale and Lally with
conspiring to commit honest-services mail fraud, honest-services
wire fraud, and extortion, in violation of 18 U.S.C. § 371 (Count
1
The Globe subsequently published stories addressing
DiMasi's line of credit with Vitale's company and the Cognos-
Topazio contract.
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1); three counts of honest-services mail fraud, in violation of 18
U.S.C. §§ 1341 and 1346 (Counts 2-4); and four counts of honest-
services wire fraud, in violation of 18 U.S.C. §§ 1343 and 1346
(Counts 5-8). DiMasi was also charged with extortion under color
of official right, in violation of 18 U.S.C. § 1951 (Count 9), and
Lally was charged with money laundering, in violation of 18 U.S.C.
§ 1957. As noted, Lally entered into a plea agreement and Vitale
was found not guilty. The jury convicted DiMasi and McDonough on
the counts that applied to them.
II. LEGAL ISSUES
A. Sufficiency of the Evidence
Both DiMasi and McDonough claim that the evidence was
legally insufficient to support their convictions. We review their
claims de novo, considering the evidence in the light most
favorable to the verdict. United States v. Rios-Ortiz, 708 F.3d
310, 315 (1st Cir. 2013). "[R]eversal is warranted only where no
rational factfinder could have concluded that the evidence
presented at trial, together with all reasonable inferences,
established each element of the crime beyond a reasonable doubt."
Id. (quoting United States v. Symonevich, 688 F.3d 12, 23 (1st Cir.
2012)). We need not conclude "that no verdict other than a guilty
verdict could sensibly be reached," but must only be satisfied that
the verdict finds support in a "plausible rendition of the record."
United States v. Hatch, 434 F.3d 1, 4 (1st Cir. 2006).
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We first address the substantive counts leveled against
both appellants.
1. Honest Services Fraud
Federal law proscribes using the mail or wires in
connection with a "scheme or artifice" to defraud. See 18 U.S.C.
§§ 1341, 1343. As relevant here, a "'scheme or artifice to
defraud' includes a scheme or artifice to deprive another of the
intangible right of honest services." 18 U.S.C. § 1346. In
construing this definition, however, the Supreme Court in Skilling
v. United States held that section 1346 reaches only those schemes
that involve bribes or kickbacks, 130 S. Ct. 2896, 2931-34 (2010),
and "draws content" from, inter alia, federal statutes proscribing
bribery of public officials and witnesses, see 18 U.S.C. § 201, and
kickbacks, see 41 U.S.C. § 8701.
In the context of public officials, a bribe is the
receipt of "anything of value . . . in return for . . . being
influenced in the performance of any official act." 18 U.S.C.
§ 201. In addition, because "[t]he illegal conduct is taking or
agreeing to take money for a promise to act in a certain way,"
United States v. Brewster, 408 U.S. 501, 526 (1972), the government
must prove that an agreement for a quid pro quo existed; that is,
the receipt of something of value "in exchange for" an official
act. United States v. Sun-Diamond Growers of Cal., 526 U.S. 398,
404-05 (1999). Such an agreement need not be tied to a specific
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act by the recipient. See United States v. Terry, 707 F.3d 607,
612 (6th Cir. 2013); United States v. Ganim, 510 F.3d 134, 148 (2d
Cir. 2007). "It is sufficient if the public official understood
that he or she was expected to exercise some influence on the
payor's behalf as opportunities arose." Terry, 707 F.3d at 612
(quoting United States v. Abbey, 560 F.3d 513, 518 (6th Cir. 2009).
Ultimately, "[w]hat is needed is an agreement . . . which can be
formal or informal, written or oral. As most bribery agreements
will be oral and informal, the question is one of inferences taken
from what the participants say, mean and do, all matters that
juries are fully equipped to assess." Id. at 613; see also Evans
v. United States, 504 U.S. 255, 274 (1992) (Kennedy, J., concurring
in part and concurring in the judgment) ("[T]he trier of fact is
quite capable of deciding the intent with which words were spoken
or actions taken as well as the reasonable construction given to
them by the official and the payor."). As there is no dispute that
the transactions at issue used both mail and wire, we focus on the
appellants' contentions regarding the alleged scheme to defraud.
We start by noting that "evidence of a corrupt agreement
in bribery cases is usually circumstantial, because bribes are
seldom accompanied by written contracts, receipts or public
declarations of intentions." United States v. Friedman, 854 F.2d
535, 554 (2d Cir. 1988). Accordingly, "the best evidence of
[DiMasi's] intent to perform official acts to favor [Lally's] and
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[Cognos's] interests is the evidence of [DiMasi's] actions on bills
that were important to [Lally]." United States v. Woodward, 149
F.3d 46, 60 (1st Cir. 1998) (internal quotation marks omitted). We
conclude that a rational jury could easily find beyond a reasonable
doubt that DiMasi and McDonough took part in a scheme that saw
DiMasi exchange his official acts for money. These actions fit
comfortably into what the Supreme Court has described as a "classic
kickback scheme," in which a public official uses a middleman to
help another entity -- here Lally and Cognos -- generate revenue or
commissions and the proceeds are shared with the official and the
middleman. See Skilling, 130 S. Ct. at 2932 (citing McNally v.
United States, 483 U.S. 350, 352-53 (1987)).
Here, the jury was instructed to consider only the
payments to Topazio and Vitale -- but not the payments to McDonough
-- for purposes of the honest services fraud charges. A reasonable
jury could have concluded that the contract with Topazio
constituted a stream of payments intended for DiMasi in exchange
for DiMasi providing benefits to Cognos and Lally. See Ganim, 510
F.3d at 148. Moreover, the payments that McDonough steered from
Lally to Vitale also supported the existence of a scheme, and were
especially close in time to the actions that DiMasi took on behalf
of Lally with respect to the PM project. Finally, the jury could
have drawn inferences of guilt from the defendants' behavior before
and after their arrangements came under scrutiny, including
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DiMasi's instructions to Topazio to deliver smaller checks and his
"suggestion" that a checkbook register should become "lost," as
well as Lally and McDonough's habit of frisking each other for
recording devices and DiMasi's admonition that one of them
"breaking" would result in a "fall" for all of them.
The appellants generally attack Lally's credibility,
referring to him -- with record support -- as a "self-admitted liar
who was proven to have a reputation within Cognos as a liar." They
also highlight the many benefits that he received as a result of
his plea agreement, including a relatively short prison sentence
and avoidance of the forfeiture of his home. The attempt to base
their sufficiency argument on Lally's unsavoriness, however,
necessarily fails. To be sure, as a witness testifying pursuant to
a plea agreement, Lally had incentive to lie. But whatever his
evidentiary warts may have been, Lally's credibility was for the
jury to weigh. United States v. Appolon, 695 F.3d 44, 55 (1st Cir.
2012); see United States v. Rosario-Diaz, 202 F.3d 54, 67 (1st Cir.
2000) (noting that uncorroborated testimony of a cooperating
witness is sufficient to sustain a conviction unless the testimony
is "facially incredible"). Moreover, Lally was subject to
extensive cross-examination, and the jury was instructed to regard
his testimony with caution.
The appellants next argue that the payments to Topazio
cannot support their convictions. They first seize upon one
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sentence in Lally's testimony, in which he said that he made the
payments to Topazio "hoping . . . to reap some benefits." Such a
blind "hope," according to the appellants, cannot form the basis of
the required quid pro quo arrangement. This argument, however,
does little more than isolate a single sentence out of Lally's
testimony -- and a single word within that sentence -- devoid of
the context of his testimony writ large that does suggest such an
arrangement. See, e.g., United States v. Turner, 684 F.3d 244, 258
(1st Cir.) (holding that in light of other evidence, payor's use of
the term "gratitude" did not prevent the jury from finding that
payment was a bribe, rather than a legal gratuity), cert. denied,
133 S. Ct. 629 (2012). For example, the jury could have found that
DiMasi's comment about "making as much hay as possible" was an
expression of his intent to keep the money flowing. Moreover,
Lally's testimony that he was told that he had to pay the money to
get the deals done also supports the jury's verdicts.
And there was more. There can be little doubt that the
Topazio contract was a sham. It first called for the performance
of services that Topazio ordinarily did not render and then
ultimately paid him for doing no work. McDonough set up the
contract and Topazio also made DiMasi -- who knew where Topazio's
legal expertise lay -- aware of it. Additionally, DiMasi at first
took a higher-than-normal referral fee and later told Topazio to
structure the lump-sum payment into smaller amounts, an act which
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the jury could have viewed as an attempt to conceal his misdeeds.
See Urcioli II, 613 F.3d at 14 n.2 (noting that defendant's effort
to hide a business relationship could be evidence to support
honest-services fraud conviction).
The appellants also argue that the timing of DiMasi's
official acts in support of Cognos, as compared to the timing of
payments to DiMasi, should have precluded the jury from finding a
connection between the payments and the acts. They also point to
the period of time during which no payments were made to Topazio
and the period between the lapse of one contract and the signing of
the next as fatal evidentiary defects. We disagree. "[B]ribery
can be accomplished through an ongoing course of conduct, so long
as the evidence shows that the 'favors and gifts flowing to a
public official [are] in exchange for a pattern of official actions
favorable to the donor.'" Ganim, 510 F.3d at 149 (quoting United
States v. Jennings, 160 F.3d 1006, 1014 (4th Cir. 1998)). Here,
the evidence shows a chain of events that began with the 2004
discussion between McDonough and Lally and continued with Cognos's
first payment to Topazio in April 2005 and Topazio's first
"referral" payment to DiMasi shortly thereafter. Lally and
McDonough subsequently spoke with DiMasi about contacting DOE
Commissioner Driscoll before the pilot project was awarded to
Cognos. DiMasi spoke with Driscoll, and had Representative Hawkins
to do the same, about obtaining legislative funding for EDW after
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the pilot project was awarded. Against this backdrop, we have
little trouble concluding that a reasonable jury could have found
that the Topazio payments supported the guilty verdicts.
We reach the same conclusion concerning the payments to
Vitale.2 The appellants argue that the evidence could not support
a finding that the payments to Vitale supported the convictions, as
there was a lack of any nexus between the payments and any benefit
to DiMasi. McDonough also specifically argues that there was no
evidence that he was aware of the putative benefit to DiMasi. As
to the latter, Lally testified that McDonough said that the
$100,000 payment on the EDW deal would inure to DiMasi through the
line of credit.3 As to the former, the evidence established that
2
The payments to either Vitale or Topazio would be
sufficient to support the verdicts. We address both for the sake
of completeness. And to the extent that appellants seek succor
from Vitale's acquittal, there is none to be had. See United
States v. Rogers, 121 F.3d 12, 16 (1st Cir. 1997) ("A not guilty
verdict against one co-conspirator is not the equivalent of a
finding that the evidence was insufficient to sustain the
conspiracy conviction of a second co-conspirator." (citing United
States v. Bucuvalas, 909 F.2d 593, 595-97 (1st Cir. 1990))). If
the evidence is "sufficient to support the verdict against the
convicted defendant, the conviction must stand despite the co-
conspirator's acquittal." Id.3
McDonough argues that Lally's testimony was uncorroborated.
We disagree. The evidence showed that Vitale directed one of his
companies -- Washington North -- to extend a $250,000 line of
credit to DiMasi and his wife; that Montvale paid $100,000 to an
entity controlled by Washington North, and that entity -- WN
Advisors -- was created the same day as the line of credit was
ordered; and that Montvale and WN Advisors entered into what could
have been seen as a sham consulting agreement to legitimize the
$100,000 payment.
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Vitale still had control over the $500,000 received from Cognos's
successor Montvale, and that DiMasi planned to join Vitale's
lobbying firm where, the jury could have found, DiMasi would have
access to the money: Lally testified that Vitale said that he
wouldn't be getting any of the money, but that "it all goes to
Sal." The record evidence sufficiently ties the Vitale payments to
DiMasi and supports McDonough's guilt on the honest services
charge.
2. Extortion
The jury convicted DiMasi of extortion under color of
official right, in violation of 18 U.S.C. § 1951. To secure a
conviction, the government must prove "that a public official has
obtained a payment to which he was not entitled, knowing that the
payment was made in return for official acts." Turner, 684 F.3d at
253 (citing Evans, 504 U.S. at 268). "[T]he offense is completed
at the time when the public official receives a payment in return
for his agreement to perform specific official acts; fulfillment of
the quid pro quo is not an element of the offense." Id. (quoting
Evans, 504 U.S. at 268). Finally, as we observed in Turner, some
courts have held that a quid pro quo or reciprocity is necessary to
support the conviction, "but that the agreement may be implied from
the official's words and actions." Id. at 253-54 (quoting Ganim,
510 F.3d at 143); see also Evans, 504 U.S. at 274 (Kennedy, J.,
concurring) (observing that official and payor "need not state the
-22-
quid pro quo in express terms, for otherwise the law's effect could
be frustrated by knowing winks and nods").4
Here, for the same reasons that we found the evidence
sufficient to support the honest-services fraud convictions, we
hold that the jury was presented with enough evidence to support
DiMasi's extortion conviction. There is no need to repetitively
recite that evidence.
3. Conspiracy
In addition to the substantive honest-services fraud
counts, McDonough and DiMasi were convicted of conspiracy to commit
honest-services fraud. A conspiracy conviction under 18 U.S.C.
§ 371 requires proof that the defendant agreed to commit an
unlawful act and voluntarily participated in the conspiracy, and
that an overt act was committed in furtherance of the conspiracy.
United States v. Gonzalez, 570 F.3d 16, 24 (1st Cir. 2009). Where,
as here, the indictment alleges a conspiracy to commit multiple
offenses, the conviction may be upheld as long as the evidence
supports a conspiracy to commit any one of the offenses. United
States v. Muñoz-Franco, 487 F.3d 25, 46 (1st Cir. 2007). Further,
4
With respect to both the honest-services and extortion
counts, the appellants urge us to follow McCormick v. United States
and require proof that "the payments [were] made in return for an
explicit promise or undertaking by the official to perform or not
to perform an official act." 500 U.S. 257, 273 (1991) (emphasis
added). We decline to do so, however, as we have held that
McCormick applies only in the context of campaign contributions.
See United States v. Turner, 684 F.3d 244, 253-54 (1st Cir.), cert.
denied, 133 S. Ct. 629 (2012).
-23-
an agreement to join a conspiracy "may be express or tacit . . .
and may be proved by direct or circumstantial evidence." United
States v. Rivera Calderón, 578 F.3d 78, 88 (1st Cir. 2009). Such
evidence may include the defendants' acts that furthered the
conspiracy's purposes. United States v. Rodriguez-Reyes, 714 F.3d
1, 7 (1st Cir. 2013).
We have little trouble concluding that the evidence was
sufficient to support the jury's finding of the required agreement
and participation. The jury was instructed on the conspiracy count
that it must find that a defendant, inter alia, agreed to commit a
crime involving payments to DiMasi or payments to another person
that were caused by DiMasi. The appellants argue that the evidence
failed to prove that Dimasi "caused" Lally or Cognos to make the
payments to Vitale or McDonough.5 This argument, however, rests on
a cramped reading of "cause", viz., that term must be considered
literally, i.e., that DiMasi "made it happen." We decline such a
narrow construction. One can "cause" something to happen by
"bring[ing] it about," or by "produc[ing] an effect or result."
Black's Law Dictionary 251 (9th ed. 2009). Under any definition,
however, the evidence that we have already outlined was sufficient
5
On the substantive counts the instruction required a
finding that the scheme involved a thing of value given to DiMasi
or caused by DiMasi to be given to Vitale. The extortion
instruction required that DiMasi caused the payments to Vitale or
McDonough.
-24-
to support a finding that DiMasi caused the payments by agreeing to
perform official acts in exchange for the payments.
In the end, the appellants' sufficiency arguments fail
with respect to their convictions for honest-services mail and wire
fraud, conspiracy to commit honest-services fraud, and DiMasi's
extortion conviction.
B. Jury Instructions
DiMasi and McDonough also assert a host of instructional
errors. We review the preserved errors under a "bifurcated
framework." DeCaro v. Hasbro, Inc., 580 F.3d 55, 61 (1st Cir.
2009). We review de novo whether the instructions "conveyed the
essence of the applicable law and review for abuse of discretion
questions about whether the court's choice of language was unfairly
prejudicial." United States v. Sasso, 695 F.3d 25, 29 (1st Cir.
2012). Withal, an incorrect instruction does not require reversal
if the error was harmless. Id. In the case of an error of
"constitutional dimension," the government is required to establish
beyond a reasonable doubt that the error did not influence the
verdict. Id. Other errors will not warrant reversal "as long as
it can be said 'with fair assurance, after pondering all that
happened without stripping the erroneous action from the whole,
that the judgment was not substantially swayed by the error.'" Id.(quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)).
Regardless of the nature of the error, we analyze the challenged
-25-
instruction "in light of the evidence, and determine whether, taken
as a whole, the court's instructions fairly and adequately
submitted the issues in the case to the jury." United States v.
Tom, 330 F.3d 83, 91 (1st Cir. 2003) (internal quotations and
citations omitted).
Here, the appellants challenge the trial court's refusal
to give particular instructions, which, as noted, is reviewed for
abuse of discretion. We will reverse only if the requested
instruction was: 1) substantively correct; 2) not substantially
covered in the charge as delivered; and 3) integral to an important
point such that the failure to give the instruction seriously
undermined the defendant's ability to present a particular defense.
See United States v. De La Cruz, 514 F.3d 121, 139 (1st Cir. 2008).
When an instruction is refused, reversal is not warranted unless
the defendant suffers substantial prejudice. Id. We address the
appellants' ten instructional plaints in turn.
1. Distinguishing Between Bribes and Gratuities
McDonough argues that the trial court's instructions did
not sufficiently differentiate between illegal bribes and legal
gratuities. See Ganim, 510 F.3d at 146 (describing a legal
gratuity as something "given to curry favor because of an
official's position"). As relevant here, the district court
instructed the jury that the government must do more than prove
that "Cognos and/or Lally made a payment to DiMasi or Vitale only
-26-
to cultivate a business or political relationship with DiMasi or
only to express gratitude for something DiMasi had done."
McDonough does not contend that this instruction was incorrect.
Instead, he argues that the jury should have been given clearer
guidance as to what constituted legal behavior. He requested the
jury be instructed that:
providing money to a public official merely as
a reward for some future act that the public
official will take (or may have already
determined to take), or to build a reservoir
of good will, or to curry favor, hoping it
would affect future performance, or for a past
act that he has already taken, does not
constitute honest services fraud.
This requested instruction was "substantially covered in
the charge actually given." De La Cruz, 514 F.3d at 139. In our
view, the charge's exclusion from illegal conduct efforts to
"cultivate a business relationship" or "express gratitude"
sufficiently encompasses McDonough's specific references so as to
pass muster. The district court was not required to provide an
exhaustive list of conduct that would not be illegal. There was no
abuse of discretion.6
6
McDonough places great weight on the changes Skilling
brought to bear on honest-services cases. Essentially, McDonough
argues that the jury should have been instructed on the actions
that, post-Skilling, no longer fit within the ambit of an honest-
services conviction. We disagree. Contrary to McDonough's
argument, the jury was instructed on the nature of a gratuity
consistent with his defense, and McDonough argued the point to the
jury. No more was required.
-27-
2. Theory of Defense
McDonough next argues that the district court failed to
adequately instruct the jury on his main theory of defense -- that
he was at all relevant times acting as a lobbyist engaged in legal
behavior central to his job. As to this argument, the district
court first instructed the jury that "any payment to Vitale only to
lobby public officials, meaning to advocate positions to public
officials or to provide strategic advice to clients seeking public
contracts or for business advice is not a basis for a mail or wire
charge." The court also charged the jury that, "[i]t is also not
unlawful for a person to receive a payment he genuinely believes
was made only to compensate him for lobbying public officials or
for providing strategic advice to clients seeking public contracts
or for providing business advice."7
As with the previous instruction, McDonough does not
claim that the court's instruction was legally incorrect. Instead,
he asserts that a more complete instruction describing more aspects
of lobbying, including its protection by the First Amendment, was
required in order for him to assert his defense. We disagree.
Read as a whole, the instructions adequately conveyed to the jury
7
Since the district court did not allow the jury to consider
the payments to McDonough as part of the honest-services fraud
counts, those payments were not included in the first instruction
quoted above. Nevertheless, McDonough could have been found guilty
if the jury believed that he participated in a scheme to provide
money either to Topazio or Vitale for DiMasi's benefit.
-28-
the lawfulness of the activities that McDonough stressed to the
jury through witnesses and arguments, specifically his having
referred Lally to Vitale and his role in the relationship between
Lally and Topazio. Nothing in the instructions prevented the jury
from concluding that McDonough's conduct with respect to the
payments made to Topazio or Vitale fell within the confines of
lawful lobbying. By the same token, however, the jury was also
free to reject the defense.
3. The "Sole Purpose" Instruction
Both McDonough and DiMasi take aim at the court's
instructing the jury, after giving some examples, that "[i]n
essence, any payment made or received by a defendant solely for one
or more lawful purposes is not a basis for a mail or wire fraud
charge." They argue that because this instruction did not mention
the government's burden of proof, the burden was effectively placed
on them to prove that the sole purpose of the payments was a lawful
one. The very next words spoken by the trial judge are fatal to
this argument: "However . . . people at times act with a mixture
of motives. If the government proves beyond a reasonable doubt a
payment made in exchange for an official act, it is not required to
prove that this was the only reason for the payment." The
government's burden was also repeated numerous times throughout the
charge. There was no error.
-29-
McDonough also argues that the definition of honest-
services fraud neither sufficiently described what was not illegal
nor specifically named McDonough such that a jury would be able to
apply his defensive arguments. We rejected these arguments in
connection with other instructions and do so again here.
4. Silent Understanding
McDonough's next argument relates to the conspiracy
count. The court instructed the jury, in relevant part, that "the
evidence to establish the existence of a conspiracy need not show
that the conspirators entered into an express agreement . . . . It
is sufficient if an agreement is shown by conduct evidencing a
silent understanding to share a purpose to violate the law."
McDonough argues that the term "silent understanding" invited the
jury to find an agreement where none existed.8 We disagree. The
court provided the instruction in recognition of the defense's
argument that Lally's testimony was entirely unreliable and the
government's fallback position that a conspiracy could be proved by
circumstantial evidence.
McDonough's argument that the jury would use the
instruction improperly to tie DiMasi's actions to a non-existent
8
We reject McDonough's argument that the phrase has been
"resurrected . . . from obscurity." It is well-settled that an
agreement can be based on a tacit understanding. See,e.g., United
States v. Maryea, 704 F.3d 55, 76 (1st Cir. 2013) (observing that
a tacit understanding between conspirators can support a
conviction). We see no meaningful difference between a "tacit"
agreement and a "silent" one.
-30-
agreement falls short because, as previously noted, the court
thoroughly instructed the jury both on the nature of lawful
payments and, with great specificity, on the requirement that the
evidence prove "that the members [of the conspiracy] in some manner
came to a mutual understanding to try to accomplish their unlawful
purpose" and that it was "not sufficient for the government to
prove that a person merely acted in a way that happened to further
some purpose of the conspiracy." Finally, any loose ends were tied
up with the instruction that a conspiracy conviction could not be
based on "mere[] associat[ion] with someone committing a crime[,]
. . . [or] mere[] kn[owledge] of illegal activity by other people."
Viewed in the context of the whole, there was no error in the
"silent understanding" instruction.
5. Intent to Alter
McDonough next argues that the district court erroneously
refused to instruct the jury that, in order to find quid pro quo
bribery, it must find that a payment was made "with the specific
intent of causing Mr. DiMasi to alter his official acts, to change
his official position that he otherwise would not have taken or to
take official actions that he would not have taken but for the
payment."9 The district court's actual instruction was that
9
This language essentially quotes the instruction that was
given in Urcioli II. 613 F.3d at 118. There, however, we did not
hold that such an instruction was required, and reiterated that the
government must establish that payments were made "with the
specific purpose of influencing [the official's] actions on
-31-
the government must prove beyond a reasonable
doubt a scheme to exchange one or more
payments for one or more official acts by
DiMasi on behalf of Lally or Cognos. . . .
[T]he government does not have to establish
that DiMasi would not have taken official
action as Speaker to promote the acquisition
of an Educational Data Warehouse, business
intelligence software or performance
management software, including Cognos
software, without [the charged] payments.
McDonough argues that the instruction conflicts with our
precedent, as set forth in United States v. Sawyer, 85 F.3d 713(1st Cir. 1996). There, after noting that the jury must be
adequately informed that "cultivation of business or political
friendship" is not bribery, we observed that
[o]nly if instead or in addition, there is an
intent to cause the recipient to alter her
official acts may the jury find a theft of
honest services or the bribery predicate of
the Travel Act. Absent some explicit
explanation of this kind, the conventional
charge will be slanted in favor of conviction.
Id. at 741. Nowhere in Sawyer, however, did we equate "alter" with
"doing something the official would not have otherwise done." See
also City of Columbia v. Omni Outdoor Adver., 499 U.S. 365, 378
(1991) (observing, in dicta, that "[a] mayor is guilty of accepting
a bribe even if he would and should have taken, in the public
interest, the same action for which the bribe was paid"). Indeed,
elsewhere in Sawyer we noted that the jury had to find an "intent
official matters." Id.-32-
to otherwise influence or improperly affect the official's
performance of duties," id. at 729, which tracks the instructions
given in this case, in which the court defined "intent to defraud"
as "to act with an intent to deprive the public of DiMasi's honest
services by exchanging a payment for an official act. In other
words, the defendant must have intended that a payment would be
made to influence an official act and would be received with the
intent to influenced . . . ."10 We find no error in the court's
refusal to give the requested instruction.
6. Series of Payments
With respect to the honest-services fraud charges, the
jury was instructed as follows:
[I]t is not necessary for the government to
prove that the scheme involved making a
10
McDonough directs us to the Third Circuit's decision in
United States v. Wright, 665 F.3d 560 (3d Cir. 2012), in which the
court ruled that an honest services bribery conviction required the
jury to conclude, inter alia, that "the payor provided a benefit to
a public official intending that he will thereby take favorable
official acts that he would not otherwise take." Id. at 568. As
support for that proposition, Wright, in turn, cited United States
v. Bryant, 655 F.3d 232, 240-41 (3d Cir. 2011). But in Bryant, the
court explicitly rejected the appellants' argument that a jury
instruction was erroneous because it failed to require a finding
that the payor intended to "'alter' the conduct of the public
official . . . " Id. at 244. Instead, the court held that
instructions which "made clear that an intent to influence was
required for a finding of guilt" were sufficient. Id. at 245. As
especially relevant here, the court noted that "there is no
meaningful difference between an intent to 'alter,' and an intent
to 'influence,' official acts." Id. at 245 n.14. Here, as in
Bryant, the instructions adequately conveyed that an intent to
influence/alter was required, and thus the district court did not
err in refusing to give the requested instruction.
-33-
specific payment for a specific official act.
Rather it would be sufficient if the
government proves beyond a reasonable doubt a
scheme to make a series of payments in
exchange for DiMasi performing official
actions benefitting Lally and Cognos as
opportunities arose or when DiMasi was called
upon to do so.
McDonough argues that this instruction "diluted" the
distinction between bribes and gratuities. This argument is a
branch from the same tree as the earlier claim that the evidence of
the Topazio payments was insufficient to support the conviction.
As we have already held that the evidence was sufficient to support
the convictions and that the instructions as a whole adequately
differentiated between bribes and gratuities, we need go no further
with this particular argument.
7. Merits of Cognos's Products
At trial, the defendants requested that the court
instruct the jury that "[t]he quality of the Cognos product" and
the "merits of the idea of Performance Management" were a
"circumstance to be considered in the case." While the court
permitted the defense to argue that DiMasi "had a legitimate motive
for anything and everything he did that resulted in Cognos getting
the contract," it refused to explicitly instruct the jury as the
defense requested. McDonough, without citing any supporting
authority, argues that the jury was thus deprived of guidance on
taking into account information that could have led them to
-34-
conclude that the defendants were acting in good faith rather than
with criminal intent. We do not find an abuse of discretion.
As the district court correctly instructed, the charges
related to a "scheme to deprive the citizens of Massachusetts of
DiMasi's honest services, rather than a scheme to deprive the
Commonwealth of Massachusetts of money." The issue in this case is
not whether the defendants truly thought the software was a benefit
to the Commonwealth; instead it is whether they intended to
exchange payments to DiMasi for assistance to Cognos. See United
States v. Shields, 999 F.2d 1090, 1096 (7th Cir. 1993) (observing,
in a judicial bribery case, that issuing a legally correct judgment
is not a defense to a bribery charge and that because a party with
a good case still "buys certainty," a legally correct decision
conveys no useful information about the likelihood of a bribe).
The district court correctly instructed the jury on the
charged offenses. And the appellants were not precluded from
arguing to the jury that the merits of the Cognos products was a
mark in their favor. But they were not "entitled to an instruction
'on every particular that conceivably might be of interest to the
jury.'" United States v. Duval, 496 F.3d 64, 78 (1st Cir. 2007)
(quoting United States v. Rosario-Peralta, 199 F.3d 552, 567 (1st
Cir. 1999)).
-35-
8. Benefit to DiMasi
DiMasi claims that the district court committed
prejudicial error when it refused to instruct the jury, with
respect to the extortion charge, that the payments to Vitale or
McDonough must have been a "benefit" to him.11 The district court
relied on United States v. Green, 350 U.S. 415 (1956), in which the
Court stated that extortion "in no way depends on having a direct
benefit conferred on the person who obtains the property." Id. at
420. DiMasi argues that Green leaves open the requirement for at
least an indirect benefit. The Third and Fifth Circuits have
rejected this argument. See United States v. Jacobs, 451 F.2d 530,
535 (5th Cir. 1971) ("Under § 1951 . . . it is not necessary to
show that a person charged with extortion or attempted extortion
actually received any benefit."); United States v. Provenzano, 334
F.2d 678, 685-86 (3d Cir. 1964) ("We hold that it is not necessary
to prove that the extortioner himself, directly or indirectly,
received the fruits of his extortion or any benefits therefrom.").
On the other hand, the Eighth Circuit has indicated that at least
indirect payments may be required. See United States v. Evans, 30
F.3d 1015, 1019 (8th Cir. 1994) ("The Hobbs Act requires proof,
11
By contrast, the district court ruled that a benefit to
DiMasi was required to prove the honest services fraud counts, and
because evidence of benefit to DiMasi was lacking with respect to
the payments to McDonough -- as opposed to those made to Topazio
and Vitale -- the payments to McDonough were only considered for
the extortion count.
-36-
among other elements, that the defendant received a benefit in
exchange for the performance or nonperformance of an official
act.").
We need not resolve this issue, however, as any error is
ultimately harmless. See Neder v. United States, 527 U.S. 1, 9
(1999) (noting that an instruction that omits an element of the
offense "does not necessarily render a criminal trial fundamentally
unfair or an unreliable vehicle for determining guilt or
innocence." (emphasis in original)). "Harmless error review
requires ascertaining 'whether it appears beyond a reasonable doubt
that the error complained of did not contribute to the verdict
obtained.'" United States v. Newell, 658 F.3d 1, 17, n.19 (1st
Cir. 2011) (quoting Neder, 527 U.S. at 15). Here, assuming that a
benefit to DiMasi was a required element, the evidence was "more
than sufficient to support the convictions." Id. First, the
payments through Topazio -- which are not claimed to be subject to
the referred "benefit" instruction -- indisputably benefitted
DiMasi. Second, given that the jury had to find that payments were
"given to Vitale for DiMasi's benefit" to sustain the convictions
on the honest services fraud counts, we are confident that the same
result would have obtained if they were so instructed on the
extortion charge.
-37-
9. McCormick Instruction
DiMasi resurrects the argument that McCormick requires
an explicit agreement between him and Lally, and that the jury
should therefore have been so instructed. Having already rejected
the argument that an explicit agreement is required, we must also
conclude that the jury instruction claim necessarily fails.
10. State Law
DiMasi next argues that the district court should have
instructed the jury on Massachusetts law concerning conflict of
interest and attorney-client confidentiality. This issue came to
the fore as a result of testimony from Governor Patrick and
Secretary Kirwan that they would have handled the PM contract
differently had they known of the payments to DiMasi and Vitale.
DiMasi maintains that state law permits him to represent clients --
like Cognos -- on matters where the state is a party. He also
suggests that he is not required by state law to disclose his
private law practice clients. Thus, he argues that a "full
explication of Massachusetts law was required to allow the jury to
distinguish between bribery and other permissible and impermissible
acts, to understand Dimasi's disclosure requirements and to
differentiate DiMasi's official acts from his private acts."
Specifically, DiMasi requested an instruction noting that
Massachusetts law allows legislators to "represent clients in their
dealings with the state pursuant to a provision of the state's
-38-
conflict of interest law." See Mass. Gen. Laws. ch. 268A, § 4. We
conclude, however, that the outcome here is controlled by Urcioli
II, in which the appellant claimed that the jury should have been
instructed on Rhode Island law that allows, inter alia, a state
legislator to engage in private employment without creating a
conflict of interest. Urcioli II, 613 F.3d at 15. The appellant
there further argued that state law might outline the contours of
a state legislator's duties such that the jury could better analyze
whether the legislator had failed to perform them. Id. We
concluded that the instruction was unnecessary because the
appellant was charged with quid pro quo bribery, not for failing to
disclose a conflict, and that "[n]othing in Rhode Island law
purports to authorize or protect such conduct." Id. (quoting
United States v. Urcioli, 513 F.3d 290, 298-99 (1st Cir. 2008)
("Urcioli I")). Moreover, we observed that such an instruction
could have "misled the jury into thinking [the state law] could
excuse bribery." Id. at 16.
The same result obtains here. As we have already
determined, the jury was properly instructed on the bribery and
extortion charges. The concern that the jury could have been
misled into concluding that state law insulated DiMasi's conduct is
just as apparent here as it was in Urcioli II. In addition, the
jury was instructed that payments to DiMasi for providing legal
services or referrals could not form the basis for a conviction.
-39-
To the extent that failure to disclose a conflict of interest was
an issue, it arose only in the context of the government's burden
of proving that the putative scheme to defraud involved a material
falsehood, which includes non-disclosures. See Neder, 527 U.S. at
25. While DiMasi argues that the court's instruction could have
resulted in the jury convicting him for an undisclosed conflict --
a result which could run afoul of Skilling -- the record shows that
the jury was instructed to consider the undisclosed conflict only
for purposes of materiality and, most importantly, after it had
found that DiMasi had participated in a scheme involving payments
exchanged for official acts. There being no indication that
Massachusetts law would allow DiMasi not to disclose bribes
("payments made for official acts"), there was no error in refusing
to instruct the jury on the Massachusetts law as DiMasi requested.
C. Evidentiary Issues
We review the district court's admission of evidence for
abuse of discretion.12 United States v. Tavares, 705 F.3d 4, 15
(1st Cir.), cert. denied, 133 S. Ct. 2371 (2013). Two evidentiary
claims are presented.
12
The parties clash over whether certain of DiMasi's
evidentiary claims are unpreserved and should therefore be reviewed
only for plain error. Because the arguments fail under even the
less deferential abuse of discretion standard, we decline to
resolve the dispute.
-40-
1. Testimony by Patrick and Kirwan
As previously noted, both Secretary Kirwan and Governor
Patrick testified that the Patrick administration would not have
executed the PM contract if they had known that DiMasi was
receiving referral fees that originated from Cognos in exchange for
his work in steering the contract to Cognos or if they knew that
Vitale was receiving a $500,000 payment from the deal. The
Governor also testified that he would have obtained advice from the
state Ethics Commission regarding the $500,000 payment. Each
official's testimony was admitted over defense objections.
DiMasi argues that the testimony should not have been
admitted because he had no obligation to disclose the relationship
among himself, Cognos, and Topazio. He further contends that the
reference to the Ethics Commission created a risk that he would be
convicted for an ethics violation such as an improper conflict of
interest. We disagree. There is no dispute that materiality is an
element of honest services fraud, and the reactions of two state
officials integral to the contract process were relevant to that
issue. And at the risk of repetition, we again note that the jury
was charged with assessing whether DiMasi had been involved in a
quid pro quo bribery scheme, not whether he had failed to disclose
a conflict of interest. There was no reversible error in the
admission of the testimony. To the extent that DiMasi argues that
the court improperly balanced the testimony's probative value
-41-
against any unfair prejudice, it suffices to observe that "Only
rarely -- and in extraordinarily compelling circumstances -- will
we, from the vista of a cold appellate record, reverse a district
court's on-the-spot judgment concerning the relative weighing of
probative value and unfair effect." United States v. Pires, 642
F.3d 1, 12 (1st Cir. 2011). This is not one of those rare
occasions.
2. Post-Conspiracy Statements
DiMasi argues that his post-conspiracy statements to
Topazio, his Communications Director David Guarino and his Chief of
Staff Maryann Calia after the March 2008 press inquiries began
should not have been admitted as either proof of the conspiracy or
to show consciousness of guilt. Topazio testified that after media
accounts were published about the Cognos contract, DiMasi said to
him that it "would have been nice if [Topazio] had lost" the
portion of his check register that showed the $25,000 payment to
DiMasi and also that Topazio should insert case names into the
register to, in effect, legitimize the transactions after the fact.
Guarino testified that during discussions in the aftermath of the
newspaper articles, DiMasi did not reveal his involvement with
state officials in the PM procurement, denied speaking with Pepoli,
denied knowledge of Lally's involvement with Cognos, and said that
he was unaware of a relationship or payments between Topazio and
Cognos. During cross-examination by the government, Calia
-42-
confirmed her grand jury testimony that DiMasi had denied knowledge
of the Cognos matter or Topazio's connection to it. The court's
general instructions included the following:
With regard to the allegedly false statements,
you should first decide whether the statement
was made and whether it was false. Similarly,
you should decide whether a defendant did
something to conceal information. If so, you
should decide whether any false statement or
action to conceal is evidence of consciousness
of guilt concerning any or all of the crimes
charged in this case. You should consider
that there may be reasons for a person's
actions that are fully consistent with
innocence of the crimes charged in this case.
In addition, feelings of guilt may exist in
innocent people and false statements do not
necessarily reflect actual guilt of particular
crimes. It is up to you to decide if there is
proof of false statements or acts of
concealment and if so whether they show a
consciousness of guilt concerning the crimes
charged here. If these facts are proven, you
must decide what weight or significance to
give them.
DiMasi first argues that the district court erred in
denying his request for a so-called Anderson-Munson limiting
instruction that would have cabined the jury's consideration of
such evidence to the individual whose statement or actions were in
dispute. See Anderson v. United States, 417 U.S. 211 (1974);
United States v. Munson, 819 F.2d 337 (1st Cir. 1987). We reject
the argument for the fundamental reason that DiMasi fails to
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explain how this instruction would apply in this case, since the
statements at issue were made by him.13
Aside from the instruction, DiMasi argues that the
statements were inadmissible because the government's case lacked
a sufficient foundation of extrinsic evidence to support an
inference of guilt of the crimes with which he was charged. He
draws this requirement from cases involving flight evidence. See,
e.g., United States v. Otero-Méndez, 273 F.3d 46, 53 (1st Cir.
2001). But to the extent that such a requirement may apply here,
we refer back to our discussion of the sufficiency of the evidence
and find a sufficient predicate to support the inference. DiMasi
further argues that his statements to Guarino and Calia were
"possibly overly narrow, but literally true." This argument misses
the mark, as the jury was instructed to determine first the falsity
of the statements before determining what, if any, weight to give
them. By acknowledging that he was at least being cagey with his
close associates, DiMasi essentially concedes, as he must, that the
matter was worthy of the jury's consideration.
Regarding the comments to Topazio about the check
register, even if, as DiMasi points out, Topazio said he thought
DiMasi was being sarcastic, not literal, the jury was fully capable
of assessing the import of the comment. And while there are
13
The government argues that this shortcoming constitutes
waiver. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990). Regardless of the reason, it is a fatal defect.
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multiple possible interpretations of DiMasi's request that Topazio
add the client names, we believe that the jury instructions
ameliorated any possibility of improper use of the testimony.
D. Sentencing
DiMasi was sentenced to ninety-six months' imprisonment,
and McDonough received an eighty-four month sentence. Both men
challenge the substantive reasonableness of their sentences.14 We
review the sentences for abuse of discretion, taking into account
the totality of the circumstances. United States v. Zavala-Martí,
715 F.3d 44, 50 (1st Cir. 2013). "When it comes to substantive
reasonableness, 'a sentencing court's ultimate responsibility is to
articulate a plausible rationale and arrive at a sensible result.'"
Rodriguez-Reyes, 714 F.3d at 11 (quoting United States v. Carrasco-
de-Jesús, 589 F.3d 22, 30 (1st Cir. 2009)). The appellants face a
heavy burden to "adduce fairly powerful mitigating reasons and
persuade us that the district court was unreasonable in balancing
pros and cons despite the latitude implicit in saying that a
sentence must be 'reasonable.'" United States v. Madera-Ortiz, 637
F.3d 26, 30 (1st Cir. 2011).
14
DiMasi's Sentencing Guideline range was 235 to 293 months;
McDonough's totaled 188 to 235 months. The calculation for each
was identical, save for the application of a lower base offense
level to McDonough because he was not a public official. We
include this information for context, as neither appellant
challenges his respective Guidelines calculation. DiMasi and
McDonough had requested sentences of 36 and 24 months,
respectively, while the government sought sentences of 151 and 120
months.
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1. DiMasi
Although his arguments contain scant detail, DiMasi
asserts several basic points. First, he argues that his eight-year
prison term is a significant increase over other sentences imposed
in the District of Massachusetts for what he describes as "similar
crimes."15 Relatedly, he argues that Lally's 18-month sentence is
evidence that DiMasi was punished for going to trial. Neither
argument persuades us. As to the first, we have observed that
consideration of sentencing disparity primarily targets disparities
among defendants nationally. United States v. Dávila-Gonzalez, 595
F.3d 42, 49-50 (1st Cir. 2010). As to the second, the fact that
Lally pleaded guilty and testified in accordance with a negotiated
agreement places the two men in distinctly different legal
postures. Id. at 50; see also United States v. Rodríguez-Lozada,
558 F.3d 29, 45 (1st Cir. 2009) (observing that a "material
difference" between defendants who plead guilty pursuant to a plea
agreement and those who do not undercuts a claim of sentencing
disparity).
DiMasi also argues that he was punished for post-verdict
public statements expressing his disagreement with the verdict
15
Sentencing disparity is a factor a district court is to
consider under 18 U.S.C. § 3553(a). Ordinarily, section 3553
factors are part of the analysis for claims of procedural error.
See, e.g., United States v. Flores-Machiote, 706 F.3d 16, 20 (1st
Cir. 2013). Even though DiMasi has eschewed any claim of
procedural error here, we will consider the issue to the extent
that it bears on the reasonableness of his sentence.
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against him. But as the district court explained, DiMasi's
protestations of innocence had no bearing on the sentence.
Instead, the court noted DiMasi's insistence that his conduct was
permitted by state law, a claim that the district court permissibly
found had "nothing to do" with the crimes for which he was
convicted, and which, the court observed, demonstrated that DiMasi
did not appreciate the gravity of his conduct.
Next, DiMasi argues that the district court impermissibly
considered the fact that he was the third consecutive Massachusetts
House speaker to be convicted of a federal crime. In the context
of deterrence, however, the district court observed that the
shorter sentences received by his predecessors might have actually
emboldened DiMasi. The court also referred specifically to
Providence, Rhode Island Mayor Vincent "Buddy" Cianci, who received
a five-year sentence after an extortion conviction. See United
States v. Cianci, 378 F.3d 71 (1st Cir. 2004).16 The district court
observed that both DiMasi and McDonough were likely aware of
Cianci's sentence but were apparently undeterred, a consideration
that in the court's view called for a "materially higher sentence."
Indeed, the district court indicated that it thought that the
government's twelve-and-a-half year recommendation was reasonable,
16
The court also considered, inter alia, the six-and-a-half
year sentence given to former Illinois Governor George Ryan, and
the nine-year sentence meted out to former Bridgeport, Connecticut
Mayor Joseph Ganim. See Ganim, 510 F.3d at 136.
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but concluded that eight years was more in line with prior public
corruption sentences elsewhere. We see no abuse of discretion in
either the district court's approach or its sentence.17
2. McDonough
McDonough's sole sentencing argument repeats the
disparity claim as it relates to Lally's sentence. For the same
reasons that we rejected the argument as advanced by DiMasi, we
reject it here.
III. CONCLUSION
The issues presented at trial and on appeal were myriad
and complex. The evidence was sufficient to support the
appellants' convictions. The district court ably dispatched the
evidentiary, instructional and sentencing issues well within the
latitude properly afforded trial judges. Accordingly, the
appellants' convictions and sentences are affirmed.
17
On appeal, DiMasi asserts that "all the harsh sentences in
the world will not deter conduct state legislators think lawful."
We agree with the district court's outright rejection of a similar
argument made below, noting that there are no state laws that allow
officials to take bribes, and that DiMasi's behavior, "from start
to end, showed that he knew" his actions were illegal.
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