United States v. McDonough

2013 | Cited 0 times | First Circuit | August 21, 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

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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.

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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

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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

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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.

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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.

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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

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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.

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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

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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

-43-

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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