Maggio’s conviction upheld
Ex-judge’s freedom ‘will soon change,’ appeals court says
A federal appeals panel upheld former Judge Michael Maggio’s bribery conviction and 10-year prison sentence Monday.
The decision by a threejudge panel of the 8th U.S. Circuit Court of Appeals in St. Louis came 2 1/2 years after Maggio, 56, pleaded guilty to bribery in U.S. District Court in Little Rock before Judge Brian Miller. A former circuit judge for Faulkner, Van Buren and Searcy counties, Maggio has yet to serve a day in prison.
“Harsh words and lengthy sentence notwithstanding, the district court allowed Maggio sixty days to get his affairs in order, and then granted Maggio’s motion for release pending this appeal. The district court also had allowed Maggio to remain free for the fourteen months between his guilty plea and sentencing,” said the panel’s opinion, written by Judge William Jay Riley.
“As the government makes a point of informing us, Maggio has not yet served any time for his misdeeds. That will soon change,” Riley added.
“We’re going to try to get Maggio in prison as quickly as we can,” acting U.S. Attorney Patrick Harris said Monday.
In a January 2015 plea agreement, Maggio admitted taking a bribe in July 2013 to lower a Faulkner County jury’s $5.2 million judgment in a negligence lawsuit against a Greenbrier nursing home owned by Michael Morton of Fort Smith.
On the same day that Maggio heard the Morton attorneys’ request to reject or reduce that judgment, July 8, 2013, Morton signed off on checks totaling $24,000 for Maggio’s latest judicial election campaign. On July 10, 2013, Maggio cut the award to $1 million.
Maggio implicated Morton and Gilbert Baker, a lobbyist and fundraiser from Conway, in the plea agreement, which referred to them only as Individuals A and B, respectively. Morton and Baker have said they believe that Maggio was referring to them but have denied any wrongdoing. Neither is charged with a crime.
Asked Monday if the investigation of Individuals A and B continues, Harris replied, “I think the investigation of Mike Maggio is not over with.”
Harris also said that if Maggio decides to cooperate with the federal government after he goes to prison, the U.S. attorney’s office would have the right to ask Miller to reduce the sentence.
Harris said there is a fiveyear statute of limitations on any case related to Maggio’s bribe.
In an email Monday, Morton spokesman Matt DeCample said, “Federal investigators have not had follow-up contacts with Morton’s team since the initial Maggio investigation, so we have no knowledge of where anything will or will not go next.”
In a text message, Baker’s attorney, Bud Cummins, said, “We would merely note that even under the pressure Michael Maggio described surrounding his original change of plea, Michael Maggio never claimed-then or now-that any illegal agreement was ever discussed with anyone.
“Gilbert Baker adamantly maintains he was never a party to any such discussion or agreement and has unequivocally stated so under oath,” Cummins wrote.
By the time 2016 and a sentencing date approached for Maggio, he was backing out of the plea agreement. He said he had been pressured into it. Miller rejected that argument.
Maggio had also grown unhappy with the attorneys who advised him on the plea deal and eventually retained a Conway lawyer, James Hensley Jr., instead. As the deadline for appealing the case neared, that attorney asked to be replaced by another lawyer, Wesley Hall.
Hall acknowledged that his having joined the case so late in the process had hampered his ability to represent Maggio as well as he might have otherwise. By then, for instance, Maggio had already waived his right to appeal on most grounds and had signed off on a stipulation of facts.
In that stipulation, for instance, Maggio had agreed that he was an agent of the state and the 20th Judicial Circuit when he was a judge. Maggio also stipulated that the judicial circuit had received more than $10,000 in federal funding in the years relevant to his case.
Both were facts that allowed the federal government to prosecute Maggio under a federal bribery statute — 18 U.S. Code 666 — and were facts that Maggio later unsuccessfully tried either to dispute or attack their relevance.
“The claim that Maggio was not an agent of the state government is belied by his stipulation that he ‘was an agent of the State of Arkansas and the Twentieth Judicial District,’ ” Riley wrote.
The appeals panel also rejected Maggio’s argument that he did nothing wrong because the $5 million judgment truly was too much and it was, therefore, legally correct for him to lower it.
“Finally, Maggio’s undeveloped suggestion that he did nothing wrong because ‘the remittitur was legally required’ reflects a fundamental misunderstanding of his crime,” Riley wrote. “Simply put, Maggio admitted he took money intending it to color his judgment in a case. That was illegal, whether or not a judge who was not corrupt might have ruled the same way.”
Hall said he would talk with Maggio this week about whether to appeal. Maggio could ask the full appeals court to hear his case, or he could ask the U.S. Supreme Court to hear it. If Maggio appeals, Hall also could ask that Maggio continue to remain free.
Of the two appeal options, Hall said the more likely would be the Supreme Court.
“If over-criminalization is the issue, the Supreme Court is more sensitive to that right now than the 8th Circuit,” he said. “I also don’t know what effect Judge Riley’s snarkiness [in the written opinion] is going to have” on the full appeals court.