Robert A. Urciuoli and Frances P. Driscoll have been free during their appeals. Prosecutors could retry their cases.

Journal files / Mary Murphy

PROVIDENCE — A federal appeals court has overturned the convictions of Roger Williams Medical Center executives Robert A. Urciuoli and Frances P. Driscoll, who had been charged with paying a state senator to push the hospital’s agenda in the legislature.

The First Circuit Court of Appeals in Boston announced yesterday afternoon that the convictions would be vacated because the judge in the case, Senior U.S. District Judge Ernest C. Torres, had given the jury overly broad instructions as to what constituted criminal acts, and that might have led the jury to convict based on actions that the appeals court does not consider to be federal crimes.

A new trial is a now possibility, if the U.S. Attorney decides to retry the case. Despite overturning the convictions, the appeals court took issue only with one part of the prosecution’s case, and in its decision appeared to suggest that the remaining case against Urciuoli, at least, would still be strong if retried.

Thomas Connell, spokesman for U.S. Attorney Robert Clark Corrente, said his office had not yet decided whether to retry Urciuoli and Driscoll.

“We’re reviewing the decision and we will make an appropriate decision as to a path of conduct once we have reviewed and analyzed the import of this decision,” he said.

Urciuoli was found guilty in October 2006 of conspiracy and 35 counts of mail fraud for hiring then-state Sen. John A. Celona to advance the hospital’s legislative agenda at the State House. Driscoll was convicted of one count of mail fraud. Urciuoli was sentenced to three years in prison and Driscoll was sentenced to eight months.

The court had postponed the execution of their sentences pending the results of this appeal, and the hospital officials have been free on bail in the interim.

Urciuoli’s lawyer, Martin G. Weinberg of Boston, said the decision vindicated his client.

“Mr. Urciuoli has consistently represented to me, to the public and to the jury that he is an innocent man,” he said.

With the victory in hand and a key state argument stripped from any subsequent case, Weinberg said that he expects to win any potential second trial.

“We have a great deal of confidence that before a different jury and with a more limited scope, the result will be very different,” he said.

The prosecution’s case was based largely on the testimony of Celona, a once-powerful senator from North Providence who resigned from the Assembly in March 2004. He later pleaded guilty to selling his influence to Roger Williams, the CVS drugstore chain and Blue Cross & Blue Shield of Rhode Island. He is serving a 2½-year federal prison term and faces 18 months in state prison after the federal sentence.

Celona was hired in 1998 as a consultant for an assisted-living facility and nursing home affiliated with Roger Williams. Prosecutors said Celona’s job was a front created to pay him for political favors — and that he was bribed with more than $260,000.

Prosecutors said he paid the hospital back by working to kill legislation, lobbying towns to increase their ambulance runs to Roger Williams and pressuring health insurers to increase their reimbursements to the hospital. The decision, written by First Circuit Chief Judge Michael Boudin with Judge Juan R. Torruella and Senior Circuit Judge Norman H. Stahl, expressed frustration with the federal mail-fraud statute used to try the case, calling it archaic.

The efforts of Torres to explain the boundaries of mail-fraud law to the jury set in motion the events that led to the successful appeal, as the defense built its case around Torres’ use of one phrase: “the cloak of office.”

During the trial, the defense had sought to show that only clearly official legislative acts on behalf of Roger Williams — such as voting on legislation that would benefit the hospital — would amount to Celona’s selling his office to the hospital under the mail-fraud statute.

Torres rejected that assertion during the trial and instead instructed the jury that the “cloak of office” extends to all of Celona’s acts as a legislator — meaning that the jury should consider activities such as Celona’s lobbying town officials to benefit the Roger Williams.

This became an issue when prosecutors raised Celona’s efforts to lure more ambulance traffic to Roger Williams. More ambulances visiting Roger Williams would mean more revenue for the hospital, and the hospital’s finances were troubled at the time.

Celona admitted to influencing mayors and fire chiefs to increase the number of rescue runs to the hospital, by requesting that they abide by a Rhode Island law that allows an ambulance patient to select the hospital of their choice; at the time, several municipalities were ignoring that rule.

Prosecutors argued that Celona’s influence of these local officials was an official act by a legislator undertaken on the hospital’s behalf.

The three-judge panel acknowledged that the statute is murky when it comes to drawing the line delineating misconduct by a legislator, particularly in a state with a part-time legislature like Rhode Island, where conflicts of interest are more prevalent.

But the judges said that Celona’s urging of local officials to obey state law does not amount to using his office to harm the citizens of Rhode Island. Celona was, in that case, upholding the law by informing local officials that they must heed a patient’s request to choose Roger Williams.

“Celona’s conduct falls in a borderland where analogies can easily be drawn both to public and private conduct and there is no indication that Celona invoked any purported oversight authority or threatened to use official powers in support of his advocacy,” the decision read.

However, because the jury was instructed to look at advocacy of rescue runs as potentially criminal conduct, the instructions were overbroad, the panel said.

The federal panel found fault only with that one part of the prosecution’s case, but decided to overturn Urciuoli’s and Driscoll’s convictions in total because the rescue run issue was a key part of the prosecution’s argument. Without the ability to know why the jury made its decision, the entire case is compromised.

“They could have relied on the legislative evidence, they could have relied on the rescue run evidence. We just don’t know,” said Weinberg.

In addition, Urciuoli disputes some parts of Celona’s account, which might play a part in any retrial.

At the same time, the judges noted that the prosecution’s case might still be strong, even without the ambulance issues. “The insurance episodes were properly considered as potentially criminal — as, needless to say, were Celona’s actions in promoting or blocking legislation to favor [Roger Williams].

“The latter alone, involving multiple episodes over a substantial period, probably would have assured conviction, at least or especially of Urciuoli,” the decision stated.

Driscoll, who left the hospital in 2000, is rarely mentioned in the decision.

“Fran Driscoll is a thoroughly decent person and consequently I couldn’t be happier because she is somebody who fully deserves the result that is reached here,” said her lawyer, John A. “Terry” MacFadyen.

Roger Williams Medical Center reached its own plea deal with the government in 2006, requiring it to take responsibility for criminal misconduct and provide $4 million of free health care to the poor.

dbarbari@projo.com