DiMasi, Vitale seek dismissal of charges

They contend fraud law vague

By Andrea Estes
Globe Staff / November 11, 2009

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Former House speaker Salvatore DiMasi and Richard Vitale, his friend and former financial adviser, asked a federal judge yesterday to dismiss the corruption charges against them, challenging the law that US prosecutors have used to go after politicians and business leaders.

In a 17-page motion filed in US District Court, their lawyers argued that the “honest services fraud’’ law being used to prosecute DiMasi, Vitale, and two other men is “unconstitutionally vague.’’

The defendants are charged with scheming to steer multimillion-dollar contracts to a Burlington software firm, Cognos, in exchange for hundreds of thousands of dollars in payments, including $57,000 for DiMasi. They have been charged under a law that makes criminal “a scheme or artifice to deprive another of the intangible right of honest services.’’

“When taken on its face, the concept of honest services is virtually limitless,’’ wrote attorneys Thomas Kiley and Martin Weinberg, “as almost any act by a state employee, including state legislators and third parties who deal with them, that involves any trace of dishonesty or a remote element of self-interest can be recharacterized as a failure to live up to the fiduciary obligation to provide ‘honest services.’ ’’

DiMasi, Vitale, and two others - Richard McDonough, a former Cognos lobbyist and DiMasi friend, and Joseph Lally, an independent sales agent for the company - are scheduled to be arraigned tomorrow on a superseding indictment handed down in October.

Prosecutors have not yet filed their opposition to the motions.

That indictment added a new charge of extortion to the original charges, issued in June. It also alleged that DiMasi had a secret financial interest in a real estate firm, Genesis Management Group LLC, that managed the state Transportation Building in Park Square. According to the new indictment, the partners agreed to pay DiMasi a share of the profits because he “could help Genesis get business.’’

Lawyers for DiMasi and Vitale also filed a motion to dismiss the new charge involving Genesis, a company that won a three-year, $1.4 million contract to run the Transportation Building a few months after it was formed by Vitale in January 2006.

In the motion, the lawyers asked the judge to “strike all allegations’’ pertaining to Genesis, because prosecutors never demonstrated that DiMasi did anything to help the company win any contracts.

“Nowhere in the indictment does it allege that DiMasi, or anyone acting on his behalf, made so much as a telephone call to promote the prospect of Genesis being awarded contracts to manage government buildings, whether local, state, or federal,’’ the lawyers wrote.

In addition, prosecutors showed no connection between DiMasi’s advocacy for Genesis to DiMasi’s official duties as speaker of the House, Kiley and Weinberg argued. To be charged with honest services fraud in connection with Genesis, they wrote, DiMasi had to do something in his official capacity “to promote Genesis’s efforts to acquire building management contracts.’’

Weinberg has said that Vitale did nothing wrong and that there was nothing irregular when the state Division of Capital Asset Management awarded Genesis the contract in 2006. When Genesis was awarded the job, it beat out a company that had operated the building since 1992.

The Globe reported last March that federal investigators were looking at Genesis and whether DiMasi played a role in getting contracts for the firm. State officials have denied being contacted by DiMasi or his staff in connection with the contract.