Tuesday, February 23, 2016

Sentencing delayed for Maggio bribery case

Posted By on Tue, Feb 23, 2016 at 12:07 PM

click to enlarge MAGGIO: Hoping to withdraw guilty plea in federal bribery case.
  • MAGGIO: Hoping to withdraw guilty plea in federal bribery case.

A sentencing hearing in the federal bribery case of former Conway Circuit Judge Mike Maggio was delayed today.

U.S. District Judge Brian Miller ordered that Maggio's sentencing, originally scheduled for Friday, be continued. Miller will instead use the hearing, set for 10:30 Friday morning, to consider Maggio's motion to withdraw his guilty plea. 

Maggio pleaded guilty to federal bribery charges in U.S. District Court last year but then filed a motion earlier this month to withdraw his plea. Maggio's new attorney, James Hensley, originally argued that Maggio's previous attorneys had given him bad advice in suggesting a guilty plea. However, in a new filing on Sunday, Hensley withdrew this claim about bad counsel and stated that Maggio was innocent, that the federal bribery statute was not applicable to Maggio's alleged activities, and that "Maggio's version of events has never changed."

In response to Maggio's motion to withdraw his plea, federal prosecutors on Friday told Miller that Maggio broke the terms of his plea agreement and is now trying to avoid the consequences. Maggio's original negotiated plea was predicated on his cooperation with the government. Prosecutors said that Maggio told the government he'd fully cooperate, but then failed to do so. Breaking the terms of the plea agreement could mean a tougher sentence. 

The record indicates that Fort Smith nursing home owner Michael Morton gave campaign money to Maggio on the encouragement of former Republican Sen. Gilbert Baker. Maggio reduced a $5.2 million verdict against a Morton nursing home to $1 million. Neither Baker nor Morton have been charged with a crime. Both have said they did nothing wrong.

Prosecutors said that Maggio failed a polygraph test on January 19 regarding the extent of his contact with "Individual B" in the events surrounding his alleged corruption. It's widely assumed that Individual B is Gilbert Baker, who served as an intermediary between Maggio and "Individual A," widely assumed to be Michael Morton. In late January, the government confronted Maggio's attorneys about Maggio's failure to provide key information about Mr. A and Mr. B (again, presumably Baker and Morton). Shortly thereafter, Maggio ditched his previous attorney, hired Hensley, and started backtracking on his plea.

In addition to Hensley's legal argument that the federal bribery statute in question doesn't apply in Maggio's case, his filing Sunday flatly states that Maggio is innocent of corruption of any kind short of a "conflict of interest" and "allowing improper considerations creep into the exercise of his judicial discretion." He only admitted to the bribery charge under pressure and because he was worried his wife would be indicted, Hensley asserts. From his Sunday filing: 

Maggio asserts that he is innocent of the charge brought against him and that he did not corruptly solicit or demand, or accept or agree to accept, anything of value from any person, intending to be influenced or reward in connection with any business, transaction, or series of transactions of the State of Arkansas, the Twentieth Judicial District, Second Division or any other state or local government or agency thereof.

He also asserts that he did not solicit or accept anything of value in order to be influenced to remit the judgment in a civil case. He only admitted the he did because he was pressured by his previous counsel and threatened by the U.S Attorney with the indictment and prosecution of his wife.

We have to remember that Maggio’s version of events has never changed. He admitted to having a conflict of interest and allowing improper considerations creep into the exercise of his judicial discretion. He never admitted to meeting the specific elements of bribery under §666. 

The government counters that, yes, the federal bribery statute applies and that Maggio pleaded guilty because he was "presented with evidence of his own guilt." They called allegations that he was pressured by threats to indict his wife false and "theatrical." From prosecutors' response on Friday: 

except for a self-serving, one sentence, unsworn allegation, Maggio, a former attorney and judge, provides no detail or evidence suggesting he was forced to plead guilty or accept the statement of facts while protesting his innocence. If necessary, the United States will present testimony of Maggio’s former counsel that Maggio was never threatened, as he theatrically alleges in his motion, with the indictment and prosecution of his wife. Rather, Maggio was presented with the evidence of his own guilt, and the United States offered him the option to proceed by Information and Plea prior to presenting any Indictment. 

The government notes that Maggio himself testified to the opposite of these claims: 

At the Change of Plea Hearing, the Court inquired whether Maggio was “satisfied with the legal representation you have received,” and Maggio replied, “Yes, sir.” Plea Tr. at 3. The Court also asked Maggio, “Have any threats or promises been made to you to get you to plead guilty?” to which Maggio replied, “No, sir.” Id. at 15. The Court further asked, “Are you pleading guilty because it’s what you want to do?” and Maggio responded, “Yes, sir.”

"With respect to the timing of Maggio’s motion to withdraw, the timing of his filing in conjunction with the sequence of events makes clear that Maggio is simply seeking to avoid the consequences of his breach of the Plea Agreement and Addendum," prosecutors wrote. 

If Miller does not allow Maggio to withdraw his plea, a new sentencing date will be set on Friday. If he accepts the motion, on the other hand, the case will presumably go to trial. 

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