The DiMasi Verdict: Higher Burden Of Proof On 'Honest Services' Fraud Charge

By Frannie Carr


June 15, 2011

BOSTON — A federal jury has convicted former Massachusetts House Speaker Salvatore DiMasi of conspiracy and other charges in a scheme to steer two state contracts worth $17.5 million to a software firm in exchange for payments to the powerful lawmaker and two friends.

In addition to being found guilty of conspiracy and extortion, DiMasi was convicted of theft of honest services by fraud.

“This is applied in cases — like DiMasi’s — where prosecutors feel they can prove that a politician has deprived his constituents of his honest services,” said Sarah Kelly, an attorney who specializes in white-collar crime at Boston law firm Nutter McClennen & Fish, in an interview with WGBH's Emily Rooney.
Okay, but what does that mean?
Jurors wondered that very same thing on Tuesday when they asked Judge Mark Wolf to repeat his instructions.
A U.S. Supreme Court ruling last year raised some of the same questions about the vague standard of honest services – and prompted the high court to raise the burden of proof.

That ruling, in the case of former Enron executive Jeffrey Skilling, concluded that a failure to disclose a conflict of interest doesn’t necessarily constitute a crime.

“When the Supreme Court heard Skillings’ case, they curtailed the statute quite a bit, saying it couldn’t just be a deprivation of honest services. What the government had to prove was that the person being prosecuted — the defendant — had to either have taken a bribe or a kickback,” Kelly said.
But as the focus shifts to DiMasi’s sentencing, which is set for August 18, Kelly says since it’s still “unclear what constitutes a bribe or a kick-back (under honest services) there’s still going to be fighting among the government and the defense attorneys as to what exactly constitutes this statute.”
DiMasi faces up to 25 years in jail.
According to the Boston Globe, DiMasi’s is the first full honest services case to go to trial since the Skillings ruling in June 2010. 

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