Former Circuit Judge Michael Maggio asked a federal judge Tuesday to allow him to remain free while he appeals a bribery conviction.
U.S. District Judge Brian Miller sentenced Maggio, 54, to 10 years in prison and two years of supervised release last month and ordered the ousted jurist to begin his sentence May 23.
In seeking Maggio's continued release, attorney James Hensley Jr. said Maggio would appeal his conviction to the 8th U.S. Circuit Court of Appeals in St. Louis on the grounds that the federal bribery statute under which Maggio was charged did not legally apply to Maggio. That was one of the same arguments Maggio made last month when he asked Miller to allow him to withdraw his guilty plea of January 2015.
"While Mr. Maggio respects that this Honorable Court was placed in a difficult position due to the late hour of the request and the unique question of law before it, Mr. Maggio believes that his appeal ... has a high chance of success due to lack of jurisdiction under the charge of federal program bribery as sought by the Government," Hensley wrote in a release motion filed in U.S. District Court in Little Rock.
Hensley argued that "there is no evidence of any federal funds or quid pro quo arrangement brought by the government in all the time that this case has been pending. Also, no other Defendant has been charged."
Maggio's plea agreement implicated two other people but not by name. It identified them as a nursing-home owner and a fundraiser for Maggio's campaign for the Arkansas Court of Appeals.
A lawsuit pending in Faulkner County Circuit Court accuses nursing-home owner Michael Morton of Fort Smith and lobbyist and fundraiser Gilbert Baker of Conway of conspiring to funnel contributions to Maggio's campaign in exchange for Maggio's reducing a jury's judgment in a negligence lawsuit against Morton's Greenbrier nursing home. In 2013, Maggio cut a $5.2 million award to $1 million.
Baker and Morton have denied wrongdoing and have not been charged with a crime.
Maggio pleaded guilty to a charge filed under a law called "Bribery Concerning Programs Receiving Federal Funds." In his plea agreement, he stated that the 2nd Division of the 20th Judicial Circuit where he had presided "received benefits in excess of $10,000 in each of the calendar years 2013 and 2014, pursuant to a federal program involving" federal assistance.
The government did not contend that the bribery involved federal funds and argued that such was not a requirement under the law.
In Tuesday's motion, Hensley said, "During his release, Mr. Maggio will continue to be supervised but will remain productive as the breadwinner of his family."
"Mr. Maggio does not pose a danger to anyone and has no history of violence or behavior that would make him likely to pose a risk of harm to the community," Hensley added. Maggio also is not a flight risk, Hensley wrote.
Hensley argued that Maggio's appeal was "not for the purposes of delay, but because it raises an important issue regarding jurisdiction of this action in the Eighth Circuit."
Hensley added, "A decision in Mr. Maggio's favor would result in a reversal of his conviction, an order for a new trial or perhaps a substantial reduction in his sentence."
Hensley said the U.S. Supreme Court "is considering multiple cases on similar issues." Hensley also made it clear that his client won't give up even if they fail on the appeal to the 8th Circuit.
"If the Eighth Circuit does not find the statute inapplicable, Mr. Maggio will file a Petition for Writ of Certiorari to the Supreme Court which is likely since the Eighth Circuit will be a split on the issue since a highly important jurisdictional question will exist," Hensley wrote.
The Arkansas Supreme Court ordered Maggio removed from his judicial office in September 2014 because of issues unrelated to bribery.
State Desk on 04/20/2016