Monday, July 11, 2016

Maggio asks appeals court to withdraw guilty plea in bribery case

Posted By on Mon, Jul 11, 2016 at 3:33 PM

APPEALING: Mike Maggio, shown here with his wife after federal district court sentencing on a bribery charge, is trying to overturn that sentence.
  • APPEALING: Mike Maggio, shown here with his wife after federal district court sentencing on a bribery charge, is trying to overturn that sentence.

Former Circuit Judge Mike Maggio of Conway today filed his argument to withdraw his guilty plea to a bribery charge for reducing a $5.2 million verdict in a nursing home negligence case to $1 million in return for campaign contributions.

Maggio entered a plea bargain in the case, but later tried to withdraw his guilty plea. The request was denied by Judge Brian Miller, who handed down a 10-year sentence in March.

In a brief today to the 8th U.S. Circuit Court of Appeals, Maggio’s court-appointed attorney, John Wesley Hall of Little Rock, argued that there was no factual basis for Maggio’s plea. He said the judge abused his discretion in refusing the withdrawal of the guilty plea because the government had failed to prove a “nexus” between bribe and action by Maggio. He also said the judge’s decision to enhance Maggio’s sentence was “unreasonable.” 

Only Maggio has been charged in the case. He’s accused – though the others were not named – of taking campaign contributions arranged by former Republican Sen. Gilbert Baker of Conway for his race for Court of Appeals. The money came from Michael Morton of Fort Smith, a nursing home owner whose properties include the Greenbrier nursing home sued for failing to send an ailing elderly woman to the hospital. She died in pain and a unanimous jury verdict awarded her family $5.2 million. Maggio considered and ultimately reduced the claim as efforts were  underway to move Morton money to Baker and then to PACs supporting Maggio. Neither Baker nor Morton has been charged with a crime and both have denied wrongdoing. Maggio remains free pending appeal.

Hall argued that Maggio was not an agent of the state as a judge and the government couldn't establish that a campaign contribution was a bribe, thus he had standing to appeal the refusal to grant his motion to withdraw the plea. The judge’s decision to reduce the nursing home verdict was not, he also wrote, "in connection with any business, transaction or series of transactions" of a government agency. Hall cited the recent U.S. Supreme Court decision in the case of former Virginia Gov. Bob McDonnell that held financial benefits the governor received from a company hoping to do business weren't criminal.

The government made a bribery charge in part resting on the fact that state courts in Arkansas receive federal money. But Hall asked: “What does a legally proper remittitur after a civil jury trial, between a personal representative of a deceased person and the nursing home where she died, have to do with federal funds received by the circuit court for drug or juvenile court?”  Without that connection, Maggio has a “fair and just” reason to ask to withdraw his guilty plea.

Under the statute by which Maggio was charged, Hall said, the government had to prove he
was an agent of government, solicited something of value intending to be influenced in connection with transactions of government and the agency of government received more than $10,000 in federal money. Some court precedent has held there need not be a connection between a bribe and federal funds. But Hall contended the statute is unconstitutional without that connection. “Otherwise, we have overcriminalization and free ranging prosecution with no proof whatsoever of a federal interest.”

Any ambiguity about the federal statute should be decided in favor of the defendant, Hall argued. If bribery occurred, there’s ample state law to prosecute the charge. Without a rule limiting overbroad laws, “couldn’t anything potentially be a federal crime, federal nexus or not? Any judge who rules in favor of a campaign contributor during the period of the campaign is at risk of a prosecution like Maggio’s, even if the judicial act was completely justified by fact and law and within precedent. And that’s just what this case boils down to.” (In defending a civil suit over Maggio’s verdict reduction, an expert witness for lawyers for Morton and Baker, former federal Judge Jim Moody, has said that the verdict reduction he entered could be justified by law.)

Hall quoted a text message from Baker to Maggio shortly before the verdict reduction, part of the indictment against Maggio.

The message about “Win, lose or draw, you have Individual A’s support” underscores that there simply was no bribe. Yes, it looks bad because of the timing and who it came from like McDonnell looked bad, but it just cannot be a crime based on these facts without nexus. 

In arguing for withdrawal of the plea, Hall contended Maggio was innocent and had admitted guilt only under pressure by previous counsel.

Although Maggio admitted to having a conflict of interest and allowing improper considerations to creep into the exercise of his judicial discretion, he never admitted to meeting the specific elements of bribery under § 666(a)(1)(B.

Maggio’s delay in seeking to withdraw the plea came because it was only after he had new trial counsel that “he fully understood and appreciated the legal issues in his case. “

On the sentencing issue, Hall argued the judge had improperly given Maggio a sentence enhancement, from 63 to 120 months. He said guideline already took into account that he was an elected official.

Yes, the District Court undeniably makes a valid point: “What is worse: A dope dealer on the phone talking about a dope deal, or a dirty judge? There’s no question. In society a dirty judge is by far more harmful to society than any dope dealer.” But, that’s already factored into the guidelines, and it is substantively unreasonable to double up and enhance Maggio yet again for that.”

The prosecution will have time to respond to Maggio's arguments. Hall asked for oral arguments on the appeal. Should he succeed on either withdrawal of the guilty plea or sentencing, he asked that the case be returned to district court for reconsideration.

Here's the full brief.

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