Law School Case Brief
United States v. McDonough - 727 F.3d 143 (1st Cir. 2013)
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.S. § 201. In addition, because the illegal conduct is taking or agreeing to take money for a promise to act in a certain way, 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. Such an agreement need not be tied to a specific act by the recipient. 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. Ultimately, what 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. The 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.
After a six-week trial, a jury in the United States District Court for the District of Massachusetts convicted defendant Salvatore F. DiMasi, the former Speaker of the Massachusetts House of Representatives, and defendant 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, pleaded 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 96 and 84 months' imprisonment, respectively. On appeal, each of them advanced a panoply of arguments that fell into four general categories: sufficiency of the evidence, jury instructions, evidentiary issues, and sentencing.
Were DiMasi's and McDonough's sentences and convictions proper?
According to the court of appeals, DiMasi's and McDonough's sufficiency arguments failed with respect to their convictions for honest-services mail and wire fraud, conspiracy to commit fraud, and one defendant's extortion conviction because a rational jury could find beyond a reasonable doubt that defendants took part in a quid pro quo bribery scheme that saw DiMasi, who was a state public official, exchange his official acts for money. The court held that the jury was properly instructed on the charges, and the district court did not err in refusing to instruct the jury on state law since there was a concern that the jury could have been misled into concluding that state law insulated the public official's conduct. The court further held that the district court did not abuse its discretion in admitting testimony from other state officials as well as post-conspiracy statements from one defendant. Finally, the court ruled that the sentences were substantively reasonable.
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