A federal appeals court has turned down pleas from Daniel Bucci, 62, and Nigel Potter, 59, to remain free pending appeal.

01:00 AM EST on Friday, November 25, 2005

BY EDWARD FITZPATRICK
Journal Staff Writer

PROVIDENCE -- Former Lincoln Park executives Daniel Bucci and Nigel Potter must report to federal prison today to begin serving sentences for conspiring to bribe former House Speaker John B. Harwood.

Bucci is headed to the Fort Devens prison camp in Ayer, Mass., while Potter is being sent to the Allenwood low-security prison in White Deer, Pa., a defense lawyer said.

Bucci, Lincoln Park's former CEO, and Potter, former CEO of the dog track's British parent company, Wembley plc, were convicted of conspiring to pay up to $4 million to Harwood to secure state approval for more video slot machines and to block a Narragansett Indian casino. The payments were to be disguised as bonuses for Harwood's law partner, Daniel V. McKinnon, who'd done legal work for the track.

On Oct. 28, U.S. District Judge Mary M. Lisi sentenced Bucci to three years and five months in prison, and she sent Potter to prison for three years. She ordered both men to report to federal prison by 2 p.m. today.

Lisi recommended Potter and Bucci be placed in prison camps. Because he's not a U.S. citizen, Potter needs a waiver before he qualifies for a camp facility, and while Lisi recommended that Potter receive such a waiver, it hasn't been granted yet, according to Bucci's lawyer, Anthony M. Traini. Potter's lawyer, C. Leonard O'Brien, could not be reached.

Fort Devens, the only federal prison for men in New England, is a medical facility and satellite camp in central Massachusetts. It is now home to Joseph A. Bevilacqua Jr., the lawyer sentenced to 18 months for leaking an Operation Plunder Dome videotape to a TV newsman and lying about it. It's also home to Frank E. Corrente, the former City Hall aide who was shown on the FBI videotape pocketing a bribe.

Allenwood, a complex that includes a prison camp, low-security and medium-security facilities, has been home to Rhode Island white-collar criminals such as former Johnston Town Councilman Benjamin R. Zanni, who pleaded guilty in 1994 in a corruption investigation, and former Pawtucket Assistant City Solicitor Gerald J. Pouliot, who was convicted in 1993 of trying to extort kickbacks.

Bucci, 62, of Medford, Mass., and Potter, 59, of Sunningdale, England, had asked the 1st U.S. Circuit Court of Appeals to allow them to remain free pending appeal of their convictions.

But the 1st Circuit rejected that request earlier this week, saying, "we are unable to conclude on the basis of the submissions before us that any issue advanced by appellants constitutes a 'close' question or 'one that very well could be decided the other way.' "

In reaction to that ruling, spokesman Thomas M. Connell said the U.S. Attorney's Office "was confident the law was solidly on the government's side."

Traini said, "I think we'll have to wait now and see what the appeal brings. We'll file the briefs and argue the case before the 1st Circuit and wait for their decision."

Defense lawyers had first asked Lisi to allow Potter and Bucci to remain free pending appeal and to halt commencement of their sentences. When she refused, they took their request to the 1st Circuit, in Boston, arguing that their appeal would raise "a substantial question of law or fact" likely to result in reversal or a new trial.

In a legal brief, defense lawyers said a prosecutor had already conceded it was a "close case." At one point during the trial, Assistant U.S. Attorney Craig N. Moore argued for admitting certain evidence, noting the case had resulted in a hung jury when it first went to trial and saying, "it is such a close case in terms of both sides having a great deal to argue with and having different theories, each of which has support."

But the U.S. Attorney's Office said it never conceded there were close issues for appeal. In a legal brief, prosecutors said Moore was referring to issues of fact for the jury to decide -- not any close legal questions. And, prosecutors wrote, "The jury resolved those issues against defendants."

Defense lawyers argued that Lisi should have given the jury instructions "delineating where problematic behavior left off and honest-services fraud might begin." They contended such instructions were required, citing a case in which the 1st Circuit said it wasn't enough to show that lobbyist F. William Sawyer lavished state lawmakers with meals, rounds of golf and other entertainment.

"The payment of a large bonus to an attorney whose partner was a legislator is not inherently illegal under the federal criminal law. It is, however, conduct which many people would find reprehensible," lawyers for Potter and Bucci wrote. "Hence, the need for safeguards which ensure that the jury will premise a guilty verdict solidly upon a finding beyond a reasonable doubt of a specific intent to deprive the public of the honest services of a politician, and not simply engaging in conduct which might present that risk."

But prosecutors said Lisi was right to reject the jury instructions proposed by the defense, and they said the Sawyer case is "light years apart" from the Lincoln Park case.

"This was not a case about a lobbyist cultivating relationships through lavish hospitality," prosecutors wrote. "Rather, as charged and proved, the case involved a planned quid pro quo of up to $4 million tied to concrete official action: approval of a specific number of coin-operated slot machines or VLTs within a specific time frame. In the absence of that action, the payments were to cease entirely."

Not only that, prosecutors wrote, "but both Bucci and Potter -- and particularly Bucci -- were clearly worried that the quo would not be achieved unless the quid were great enough."

Among other issues, defense lawyers argued that, "One gaping hole in the government's case was the dearth of evidence either that John Harwood had any relevant power, or that he would have accepted a payment had it ever been offered."

Defense lawyers said prosecutors "attempted to fill this hole with an inflammatory anti-Harwood editorial from The Providence Journal. This editorial claimed that Mr. Harwood was the 'Ocean State Emperor' who had power to make unspecified things happen in back rooms, out of public sight."

Prosecutors contended that, "the precise nature and extent of Harwood's actual influence is irrelevant. What matters is that defendants plainly anticipated that obtaining his influence would be money very well spent."

Bucci had sent the editorial to Potter along with margin notes saying: "The editorial points to several impt. facts, especially John Harwood's power and influence."

Prosecutors noted Lisi told the jury that the editorial could only be used in assessing the defendants' intent and not the truth of its contents. Also, prosecutors said, "there is no basis for concluding that the jury would have reached a different verdict had the article been redacted."