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United States v. McDonough

United States District Court, D. Massachusetts

March 29, 2018



          WOLF, D.J.


         On September 9, 2011, a jury convicted Salvatore DiMasi and Richard McDonough, a lobbyist, for conspiring to commit honest services mail fraud, honest services wire fraud, and extortion under color of official right, as well as for honest services mail fraud and wire fraud. See 18 U.S.C. §§371, 1341, 1343, 1346, and 1951. The evidence at trial showed, in essence, that McDonough conspired with his client, Joseph Lally, to pay DiMasi to use his official power as Speaker of the Massachusetts House of Representatives to obtain more than $17, 000, 000 in state software contracts for Lally's employer, Cognos Corporation, and later his company, Montvale Solutions. Lally pled guilty, cooperated with the government, and testified at trial against DiMasi, McDonough, and a fourth alleged co-conspirator, Richard Vitale, who was acquitted. The payments to DiMasi were made in the form of purported referral fees through his unwitting associate in the practice of law Stephen Topazio, and through Vitale. See United States v. DiMasi, 810 F.Supp.2d 347, 356-62 (D. Mass. Aug. 30, 2011).

         The court denied the defendants' motions for acquittal and a new trial. Id. DiMasi was sentenced to eight years in prison and McDonough to seven years in prison. The court subsequently denied their motions for release pending appeal. See United States v. DiMasi, 817 F.Supp.2d 9, 12 (D. Mass. Oct. 11, 2011). McDonough began serving his sentence on November 30, 2011. In 2013, the First Circuit affirmed McDonough's conviction and sentence. See United States v. McDonough, 727 F.3d 143, 166 (1st Cir. 2013) . On January 27, 2014, the Supreme Court denied certiorari, and his conviction and sentence became final. See McDonough v. United States, 134 S.Ct. 1041 (2014) .[1]

         On January 26, 2015, McDonough timely filed a petition to vacate his conviction and sentence pursuant to 28 U.S.C. §2255 (the "Petition"). McDonough asserts that his trial counsel, Thomas Drechsler, was constitutionally ineffective because: (1) he "fail[ed] to investigate and present expert testimony regarding the 'blurred' but critical distinction between legal lobbying and the criminal conduct required to maintain [a] conviction for honest services fraud;" and (2) he failed to effectively "demonstrate that [McDonough's] normal professional activities included lobbying all branches of government" and to show that McDonough was "at all times acting within the boundaries of legal lobbying." McDonough asserts that Mr. Drechsler should have done so by: (a) confronting State Representative Robert Coughlin with prior inconsistent statements on cross-examination; and (b) calling Senator Joan Menard to rebut certain testimony given by Lally. Memo, in Supp. of Petition ("Memo.") at 4-5, 19, 19-26.

         In response to the Petition, the government requested that the court find that McDonough waived attorney-client privilege by filing his Petition; order Mr. Drechsler and counsel for DiMasi and Vitale to disclose any information reasonably necessary to enable the government to respond to the Petition; and extend the deadline for the government to do so. See United States' Motion for Order Regarding Waiver of Attorney-Client Privilege and for Extension of Time to File Response (Docket No. 857). McDonough opposed that request. See Response to Government Motion for Waiver to Attorney-Client Privilege (Docket No. 863).

         The court has reviewed McDonough's submissions, as well as the pertinent portions of the record. It finds that the existing record conclusively establishes that McDonough is not entitled to relief under §2255. As explained below, the decisions not to call a lobbying expert, confront Representative Coughlin with past inconsistent statements, or call Senator Menard did not constitute ineffective assistance, and there is not a reasonable likelihood that McDonough would have been acquitted if his counsel had done so. Accordingly, the Petition is being denied. The government's request for information from counsel for defendants is, therefore, moot.


         A. 18 U.S.C. §2255 Proceedings

         A prisoner in federal custody may collaterally attack his conviction under 28 U.S.C. §2255. As the First Circuit has explained:

Section 2255 contemplates four potential bases on which a federal prisoner may obtain relief: (1) "that the sentence was imposed in violation of the Constitution or laws of the United States"; (2) "that the court was without jurisdiction to impose such sentence"; (3) "that the sentence was in excess of the maximum authorized by law"; or (4) that the sentence "is otherwise subject to collateral attack." 28 U.S.C. § 2255(a).

Damon v. United States, 732 F.3d 1, 3 (1st Cir. 2013) (quoting 28 U.S.C. §2255 (a)). In an action under §2255, "[t]he burden of proof is on the petitioner." Wilder v. United States, 806 F.3d 653, 658 (1st Cir. 2015), cert, denied, 136 S.Ct. 2031 (2016).

         When a prisoner files a §2255 petition, 28 U.S.C. § 2255(b) requires that:

Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.

28 U.S.C. §2255(b). As the First Circuit wrote in United States v. McGill, 11 F.3d 223 (1st Cir. 1993):

We have distilled these principles into a rule that holds a hearing to be unnecessary "when a §2255 motion (1) is inadequate on its face, or (2) although facially adequate is conclusively refuted as to the alleged facts by the files and records of the case." Moran v. Hogan, 494 F.2d 1220, 1222 (1st Cir. 1974). In other words, a "§2255 motion may be denied without a hearing as to those allegations which, if accepted as true, entitle the movant to no relief, or which need not be accepted as true because they state conclusions instead of facts, contradict the record, or are 'inherently incredible.'" Shraiar v. United States, 736 F.2d 817, 818 (1st Cir. 1984) (citations omitted).

Id. at 225-26 (some citations omitted); see also United States v. Panitz, 907 F.2d 1267 (1st Cir. 1990); David v. United States, 134 F.3d 470, 478 (1st Cir. 1998) ("To progress to an evidentiary hearing, a habeas petitioner must do more than proffer gauzy generalities or drop self-serving hints that a constitutional violation lurks in the wings."). "Moreover, when...a petition for federal habeas relief is presented to the judge who presided at the petitioner's trial, the judge is at liberty to employ the knowledge gleaned during previous proceedings and make findings based thereon without convening an additional hearing." McGill, 11 F.3d at 225.

         B. Ineffective Assistance of Counsel

         "The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel." Lema v. United States, 987 F.2d 48, 51 (1993) (citing Strickland v. Washington, 466 U.S. 668 (1984)). "But the Constitution does not guarantee a defendant a letter-perfect defense or a successful defense; rather, the performance standard is that of reasonably effective assistance under the circumstances then obtaining." Id. at 51. To succeed on an ineffective assistance of counsel claim, a petitioner must demonstrate: (1) that "counsel's performance fell below an objective standard of reasonableness"; and (2) that the petitioner ...

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