Judge upholds charges against DiMasi

Defense cited Enron case in bid for dismissal

By Andrea Estes
Globe Staff / January 29, 2011

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For months, former House speaker Salvatore F. DiMasi and three associates have been pinning their hopes on a Supreme Court decision in June that limited the scope of the law being used to prosecute them.

Yesterday, in a series of rulings, the judge in the federal corruption case quickly dashed their hopes.

US District Court Chief Judge Mark Wolf refused to throw out any part of the case against the four men, rejecting more than a dozen defense motions to dismiss or limit the charges.

As a result, DiMasi and his codefendants will stand trial in late April on a slew of charges, including wire and mail fraud, extortion, and conspiracy. They are accused of colluding to steer two multimillion-dollar software contracts to Cognos, a Burlington company, in exchange for cash, including $57,000 allegedly funneled to DiMasi through a middleman.

Defense lawyers said they were disappointed but predicted they will prevail when the case goes before a jury.

“The judge has ruled,’’ said DiMasi’s lawyer, Thomas R. Kiley. “I disagree with the judge, but that’s for later.’’

He added, “I’m planning to win at trial.’’

If convicted, DiMasi faces up to 20 years in prison for eight of the nine charges against him. The ninth charge, conspiracy, carries a maximum penalty of five years.

Wolf rejected the argument defense lawyers had been hoping would drastically weaken the government’s case against DiMasi and the others — Richard D. Vitale, DiMasi’s former accountant; Richard W. McDonough, DiMasi’s friend and Cognos’s former lobbyist; and Joseph P. Lally Jr., an independent sales agent who sold the state the two software contracts.

Their lawyers had argued that the indictments against them did not meet the standard set forth by the Supreme Court in a landmark ruling in June. In that case, involving former chief Enron chief executive Jeffrey Skilling, the court found that the law used to prosecute him — the same law being used to charge DiMasi and the others — was too vague. The court ruled that the so-called honest services fraud law should be used only in cases involving bribery or kickbacks.

DiMasi’s lawyers said the indictment in their case did not allege that DiMasi received bribes in exchange for an official action, and should therefore be thrown out.

But Wolf found that the indictment can stand despite the Supreme Court decision. He found that prosecutors are charging that Cognos paid DiMasi and the others substantial sums of money in exchange for his help securing state contracts for the company, which he said constituted bribery.

Thomas Drechsler, McDonough’s attorney, said arguing the motions before the judge was a useful exercise, even if it didn’t result in a dismissal of charges.

“I’m disappointed,’’ he said. “I think this was a valuable process. We’ve received good guidance from the court’’

Wolf also dismissed a defense motion yesterday to find out what legal instructions were provided to the grand jury before it issued its indictments in 2009. Attorney Robert M. Goldstein, who represents Lally, argued that the indictments should be thrown out because the grand jury acted before the Supreme Court ruled in the Skilling case and may have applied an incorrect interpretation of the law.

On Wednesday, Wolf refused to throw another charge in the case, extortion. And he rejected requests by the defense to eliminate from the indictment mention of a $250,000 line of credit prosecutors say Vitale gave DiMasi in the spring of 2006, a month after Vitale formed a consulting company that would later receive $600,000 from Lally after Cognos won state work.

Andrea Estes can be reached at