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Audio report above by WBUR’s Deborah Becker, text report below by The Associated Press’ Denise Lavoie.
BOSTON — An attorney for former Massachusetts House Speaker Salvatore DiMasi asked a federal appeals court Tuesday to overturn his client's corruption conviction, arguing that the trial judge gave insufficient jury instructions.
DiMasi is serving an eight-year sentence after being convicted in 2011 for using his political power to steer state contracts to Cognos, a Burlington software company, in exchange for payments of $65,000. He was convicted of conspiracy, extortion and theft of honest services by fraud, a bribery charge.
In arguments before the 1st U.S. Circuit Court of Appeals, DiMasi's lawyer, Thomas R. Kiley, said the trial judge failed to clearly define what kinds of activities are legal lobbying. Kiley noted that the government's star witness, former Cognos salesman Joseph Lally, testified that he hoped payments made to DiMasi through his law partner would get him something in return.
"There needs to be an agreement. An expectation, a hope isn't enough," Kiley said.
U.S. District Judge Mark Wolf, who presided at DiMasi's trial, told the jury prosecutors did not have to prove a written agreement or handshake, but that DiMasi understood that the payments were in exchange for him using his position to push for the contracts to go to Cognos.
The defense maintained that the payments made to DiMasi through his law partner were legal referral fees, not bribes, and were not made in exchange for any official acts by DiMasi.
Richard McDonough, a lobbyist for Cognos and close friend of DiMasi, was convicted of conspiracy and fraud. He is now serving a 7-year sentence.
McDonough's lawyer, Martin Weinberg, told the 3-judge appeals panel there were two "profound failures" in the trial judge's instructions to the jury, including a definition of legal lobbying and what kinds of activities do not fall under the bribery law.
Weinberg said that if the trial judge had given the jury instructions on legal lobbying activities, the jury could have determined that McDonough's were unattractive but legal.
"This was a close case," Weinberg said.
John-Alex Romano, a lawyer in the appellate section of the Justice Department's criminal division, told the appeals court that the trial judge properly instructed the jury on the difference between bribery and gratuities, as well as what constitutes lobbying. He said the instructions sought by the defense were overly broad.
The panel, which included retired U.S. Supreme Court Justice David Souter, took the case under advisement and did not indicate when a ruling will be issued.
DiMasi, who is battling tongue cancer, is receiving treatment at the Federal Medical Center in Butner, N.C., which houses inmates with medical problems.
This program aired on February 5, 2013.
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