U.S. court or­ders Mag­gio to be­gin bribery sen­tence

Northwest Arkansas Democrat-Gazette - - FRONT PAGE - DE­BRA HALE-SHEL­TON

A court or­dered for­mer Cir­cuit Judge Michael Mag­gio on Mon­day to sur­ren­der to fed­eral au­thor­i­ties by Wed­nes­day af­ter­noon to be­gin serv­ing a 10-year prison sen­tence for bribery, more than two years af­ter Mag­gio pleaded guilty.

A short time later, Mag­gio’s at­tor­ney asked for more time be­fore Mag­gio must sur­ren­der. Act­ing U.S. At­tor­ney Pa­trick Har­ris said ear­lier Mon­day that the pros­e­cu­tion would “ve­he­mently op­pose” more de­lays, and it did.

U.S. District Judge Brian Miller gave Mag­gio un­til 2 p.m. Wed­nes­day to sur­ren­der to the U.S. mar­shal in down­town Lit­tle Rock. “Fail­ure to re­port as di­rected will re­sult in a war­rant be­ing is­sued,” Miller wrote.

De­fense at­tor­ney John Wes­ley Hall asked Miller to de­lay Mag­gio’s sur­ren­der date un­til July 26 to give Hall time to file a pre­vi­ously planned pe­ti­tion for re­hear­ing in the 8th U.S. Cir­cuit

Court of Ap­peals in St. Louis.

On July 3, a three-judge panel of that court up­held Mag­gio’s guilty plea and his prison sen­tence and, as the pros­e­cu­tion noted Mon­day, “con­tem­plated that Mag­gio would be taken into cus­tody in short or­der.”

As of late Mon­day, Miller had not ruled on the Hall’s mo­tion to post­pone Mag­gio’s re­port date. Nor had the ap­peals court ruled on whether it would grant Hall more time to file a re­hear­ing pe­ti­tion. That pe­ti­tion could ask for the same three-judge panel or the full court to hear Mag­gio’s case. Hall said he had not de­cided which route to pur­sue.

The ap­peals court also had not ruled on whether Hall could wait to file the re­hear­ing re­quest next week

in­stead of Mon­day, but he said it nor­mally ap­proves such ex­ten­sions. The pros­e­cu­tion did not ob­ject to this re­quest. Hall said he is busy with an un­re­lated case go­ing to trial to­day.

The Fed­eral Bureau of Pris­ons has not yet as­signed Mag­gio to a spe­cific prison. Miller agreed last year to rec­om­mend that Mag­gio be in­car­cer­ated in the fed­eral prison at Texarkana, Texas, but the de­ci­sion is up to the bureau.

In the in­terim, the U.S. mar­shal would have Mag­gio held in the Pu­laski County jail or a lockup in Ten­nessee, Har­ris said.

The govern­ment ap­pointed Hall to rep­re­sent Mag­gio af­ter Mag­gio was de­clared a “pau­per.” Hall suc­ceeded at­tor­ney James Hensley of Con­way, who briefly rep­re­sented Mag­gio af­ter dis­agree­ments be­tween Mag­gio and his orig­i­nal at­tor­neys.

Mag­gio has con­tended that he was pres­sured into plead­ing guilty and has un­suc­cess­fully sought to with­draw his plea.

Asked if past de­ci­sions in­volv­ing Mag­gio and other at­tor­neys were ham­per­ing his abil­ity to rep­re­sent Mag­gio as well as he might wish, Hall re­cently said they were. “I’m good, but I’m not a mir­a­cle worker,” Hall said.

Mag­gio, who turned 56 on Sun­day, was a judge in the 20th Ju­di­cial Cir­cuit when ques­tions sur­faced about thou­sands of dol­lars that nurs­ing-home owner Michael Mor­ton of Fort Smith gave to sev­eral po­lit­i­cal ac­tion com­mit­tees. Mor­ton said he in­tended for the money to go to Mag­gio’s ju­di­cial cam­paign for a state ap­pel­late court seat, and some of it later did.

In a plea agree­ment in Jan­uary 2015, Mag­gio ad­mit­ted low­er­ing a Faulkner County

jury’s $5.2 mil­lion judg­ment in a neg­li­gence law­suit against a Mor­ton-owned Green­brier nurs­ing home to $1 mil­lion in ex­change for in­di­rect con­tri­bu­tions to his cam­paign for the ap­peals court.

That agree­ment also im­pli­cated Mor­ton and lob­by­ist and fundraiser Gil­bert Baker, though not by name. Baker and Mor­ton have de­nied wrong­do­ing but have said they be­lieve the govern­ment was re­fer­ring to them in that agree­ment. They have not been charged with a crime.

In Septem­ber 2014, the Arkansas Supreme Court or­dered Mag­gio re­moved from of­fice over un­re­lated and wide-rang­ing on­line com­ments he made about such top­ics as women, di­vorce, sex, bes­tial­ity and race. He had al­ready with­drawn from the ju­di­cial cam­paign.

In ask­ing that Mag­gio get more time be­fore go­ing to

prison, Hall gave a pre­view of his ar­gu­ments for a re­hear­ing on the ap­peal.

Hall said the U.S. Supreme Court agreed this year to hear a case in­volv­ing the is­sue of whether a guilty plea in it­self waives a de­fen­dant’s right to chal­lenge the con­sti­tu­tion­al­ity of his statute of con­vic­tion. Hall said that de­ci­sion came down in late Fe­bru­ary, two weeks be­fore Mag­gio’s case was ar­gued be­fore the fed­eral ap­peals panel.

Hall also cited “the rip­ple ef­fect” of an­other Supreme Court rul­ing that he said has nar­rowed the term “of­fi­cial act” in pub­lic cor­rup­tion cases.

One of the is­sues in Mag­gio’s ap­peal has been whether he was an “agent of the state” when he was a judge. Mag­gio has sought to dis­pute or at­tack the rel­e­vance of a stip­u­la­tion he made in the plea agree­ment that he was an “agent of the state.” That fact was one fac­tor that al­lowed the govern­ment to pros­e­cute Mag­gio un­der a fed­eral bribery statute — 18 U.S. Code 666.

As­sis­tant U.S. At­tor­ney Julie Peters coun­tered in the govern­ment’s re­sponse Mon­day that the 8th Cir­cuit “has al­ready ad­dressed and re­jected Mag­gio’s ar­gu­ments.”

Peters said the 8th Cir­cuit has pre­vi­ously ruled that for a con­victed per­son to be re­leased while pur­su­ing ap­peals, a court must find that the is­sue on ap­peal raises such a “sub­stan­tial ques­tion of law or fact” that the ul­ti­mate re­sult will likely be a re­ver­sal, a new trial or a sen­tence re­duc­tion.

“Be­cause Mag­gio can­not demon­strate a ‘sub­stan­tial ques­tion of law or fact’ … Mag­gio has not met his bur­den of es­tab­lish­ing that he is en­ti­tled to re­lease pend­ing ap­peal, and he should pro­ceed di­rectly to jail on Wed­nes­day,” she wrote.


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