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1st Circuit rejects former lawmaker's third collateral attack on convictions.

Byline: Kris Olson

This past July one day short of the 23rd anniversary of the 28-count indictment of his client, former state Rep. Francis H. Woodward Boston attorney Bruce A. Singal found himself arguing before the 1st U.S. Circuit Court of Appeals on Woodward's behalf.

A jury had acquitted Woodward of 23 of those 28 counts, and Singal and his co-counsel had managed to get three more dismissed through various post-trial motions.

Singal thought he had just the hammer to knock out those two remaining convictions, for honest-services mail and wire fraud, which the U.S. Supreme Court had fashioned with its 2016 decision in McDonnell v. United States.

However, first a U.S. District Court judge, and then the 1st Circuit, disagreed.

Woodward was first elected to the House in 1977 and served on the Legislature's Joint Committee on Insurance from 1985 to 1991.

Prosecutors alleged that, from 1984 through 1992, Woodward had accepted more than $9,000 in gratuities from lobbyists for the John Hancock Mutual Life Insurance Co. and the Life Insurance Association of Massachusetts. Most of the "gratuities" had taken the form of meals, rounds of golf, and other entertainment.

According to prosecutors, Woodward then turned around and did Hancock and LIAM's bidding in the Legislature.

As a result of his convictions, Woodward was sentenced to six months of community confinement, followed by two years of supervised release. Perhaps of more consequence, the State Board of Retirement in 2002 rescinded his pension benefits, a decision that the Supreme Judicial Court upheld in 2006.

The case recently decided by the 1st Circuit is Woodward's third collateral attack on his convictions and the second one using a writ of error coram nobis.

Singal noted that, in McDonnell, the Supreme Court had narrowed the definition of "official act" in the context of honest-services fraud prosecutions. He argued that his client's actions, like those of former Virginia Gov. Robert F. McDonnell, had not crossed the line the Supreme Court had now drawn.

Specifically, Singal took issue with what he said were "impermissibly expansive" jury instructions.

But the definition of "official acts" given to Woodward's jury "any decision or action in the enactment of legislation" was sufficiently narrow, the 1st Circuit found.

The court also relied on what Singal suggests is a problematic standard to obtain coram nobis relief. Judge Juan R. Torruella noted the Supreme Court's references to such relief as "strong medicine" and an "extraordinary remedy."

"The problem is the 1st Circuit has repeatedly demanded a higher standard for coram nobis petitions when there is a change in the law," Singal says. "The longer period of time that elapses, the more exacting the standard is."

Singal says that the bar his client is now being asked to clear is significantly higher than he would have confronted on a direct appeal, had the change in the law occurred prior to his conviction.

Torruella wrote that, to the extent that the jury instructions had not perfectly anticipated McDonnell, there was not enough "daylight" between the two definitions of "official acts" to say that an error of "the most fundamental character" had been committed.

Singal also challenged the sufficiency of the evidence to sustain his client's convictions, given that at least some of the conduct had not taken place within the statute of limitations period.

But the 1st Circuit highlighted the fact that the government had not needed to prove a "tight nexus between any particular gratuity and a specific official act." Rather, bribery could be proven under a "stream of benefits" theory. Rejecting one of Singal's arguments, the court concluded that such a theory was still valid post-McDonnell.

From 1985 through 1990, in the pre-statute-of-limitations period, Woodward had annually led the opposition and helped thwart a bill proposing mandatory discounts on life insurance for non-smokers, which Hancock and LIAM opposed, the 1st Circuit noted.

Within the statute of limitations period, in the summer of 1990, that same bill was on the verge of becoming law when the House recommitted it to the Insurance Committee, where it languished into the New Year.

In a previous decision, the 1st Circuit had determined that the jury could have reasonably inferred that Woodward prevented any further action on the bill, given his past opposition and the fact that Woodward's co-chair, Linda J. Melconian, supported the bill.

There was also evidence that Woodward had received benefits from Hancock's senior legislative counsel during the statute of limitations period, including having a lobbyist leave behind his credit card at a conference in Arizona in 1991 so that Woodward's golf and meal expense would be paid.

The 1st Circuit also rejected Woodward's contention that the District Court had "incorrectly identified his role in tanking the non-smokers bill as a post-McDonnell official act."

Actively preventing a vote from taking place on a particular piece of proposed legislation "falls well within McDonnell's definition of 'official acts,'" the court found.

That Woodward had "carried" pro-industry bills through the legislative process also constituted "official acts," the court added.

Singal says that while "tangibly" the case is about restoring Woodward's pension, more broadly it's about a man nearing 80 trying to clear his name of charges that Singal believes would not have been brought in a post-McDonnell world.

Singal says he and his client will continue to review their options, up to an including petitioning the Supreme Court for certiorari.

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Title Annotation:Francis H. Woodward, former Massachusetts State Representative
Author:Olson, Kris
Publication:Massachusetts Lawyers Weekly
Date:Oct 25, 2018
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