United States v. McDonough
727 F.3d 143
| 1st Cir. | 2013Background
- Salvatore DiMasi (Mass. House Speaker) and lobbyist Richard McDonough were convicted after a jury trial for participating in a scheme that funneled payments from Cognos (and later Montvale) through intermediaries (Topazio, Vitale) to DiMasi in exchange for official acts favoring Cognos.
- Lally (Cognos/Montvale executive) arranged sham contracts and paid retainers to Topazio and to entities controlled by Vitale; he pled guilty and cooperated at trial; Vitale was acquitted; Topazio was not charged.
- Key official acts: DiMasi lobbied state officials and influenced budget/bond amendments and procurement decisions to secure Cognos pilot and statewide projects (EDW and PM), including ensuring earmarks and funding and meeting with executive branch officials.
- Payments included monthly retainers to Topazio (part of which flowed to DiMasi), $100,000 transfers tied to an EDW deal, a $250,000 line of credit to DiMasi from a Vitale-controlled company, and a $500,000 payment routed to Vitale after the PM contract (from Lally/Montvale).
- After media scrutiny, defendants took actions (withdrawals, advising concealment, denials, frisking each other) which the jury could interpret as consciousness of guilt.
- The district court convicted DiMasi and McDonough of honest‑services mail and wire fraud, conspiracy to commit honest‑services fraud, and DiMasi was also convicted of extortion under color of official right; the First Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for honest‑services fraud & conspiracy | Gov: circumstantial evidence (payments, sham contracts, contemporaneous official acts, post‑investigation conduct) proves quid pro quo and conspiracy | DiMasi/McDonough: testimony of cooperating witness (Lally) unreliable; timing/gaps and lack of explicit quid pro quo defeat sufficiency | Affirmed: a rational jury could infer corrupt agreement, scheme, and causation from payments, acts, and corroborating conduct |
| Extortion under color of official right (§1951) | Gov: payments obtained in return for official acts; receipt completes offense | DiMasi: payments not shown to be a benefit to him or tied to quid pro quo; required explicit promise per McCormick | Affirmed: evidence supported that payments were in return for official acts; any instructional omission on "benefit" harmless beyond reasonable doubt |
| Jury instructions (bribe vs. gratuity; intent to influence; conspiracy formation) | Defendants: requested clarifying instructions (e.g., explicit requirement to show payments caused official to "alter" acts; broader First Amendment/lobbying context; state‑law conflict/ethics instructions) | Court: gave instructions requiring intent to influence and differentiating lawful payments; declined expansive or state‑law instructions as potentially misleading | Affirmed: charge fairly conveyed law; requests either covered by charge or unnecessary/misleading; refusal did not substantially prejudice defendants |
| Evidentiary rulings (officials' testimony; post‑conspiracy statements) | Defendants: testimony by Governor/Secretary about what they would have done irrelevant or unfairly suggested ethics violations; post‑investigation denials should be limited | Gov: officials' reactions probative of materiality; post‑investigation denials and concealment evidence of consciousness of guilt | Affirmed: district court did not abuse discretion admitting the testimony or statements; limiting instructions were given and evidence was relevant to materiality and consciousness of guilt |
Key Cases Cited
- Skilling v. United States, 561 U.S. 358 (Sup. Ct. 2010) (narrowed honest‑services statute to schemes involving bribes or kickbacks)
- McNally v. United States, 483 U.S. 350 (Sup. Ct. 1987) (discussed in context of intangible‑rights fraud)
- Sun‑Diamond Growers v. United States, 526 U.S. 398 (Sup. Ct. 1999) (quid pro quo requirement for public‑official bribery)
- Evans v. United States, 504 U.S. 255 (Sup. Ct. 1992) (officials need not use explicit words; jury can infer quid pro quo from conduct)
- United States v. Ganim, 510 F.3d 134 (2d Cir. 2007) (honest‑services bribery can be shown by ongoing course of conduct and circumstantial evidence)
- United States v. Turner, 684 F.3d 244 (1st Cir. 2012) (discussed bribery/extortion standards and government burden)
- United States v. Urcioli, 613 F.3d 11 (1st Cir. 2010) (treatment of state‑law instructions and honest‑services context)
- United States v. Cianci, 378 F.3d 71 (1st Cir. 2004) (public corruption sentencing cited for district court's comparative reasoning)