A former state senator charged with bribery, wire fraud and conspiracy wants the charges dismissed, but his motion lacks merit and should be denied, according to a filing Friday in U.S. District Court in Little Rock.
Gilbert Baker, past chairman of the state Republican Party and a former lobbyist and political fundraiser, was indicted in January 2019 after a federal investigation that led to a 10-year prison sentence in July 2017 for former Faulkner County Circuit Judge Michael Maggio.
Baker, 64, is accused of being the middleman in an effort to bribe Maggio. At the time, Maggio was campaigning for a seat on the Arkansas Court of Appeals.
Baker's jury trial is scheduled for July 26. He is charged with seven counts of honest-services wire fraud, two counts of bribery concerning programs receiving federal funds, and one count of conspiracy.
In a Dec. 4 motion, Baker argued that the indictment should be dismissed because it failed to allege the offenses.
"The Indictment sets forth the details and series of events that form the basis for the charges," wrote Assistant U.S. Attorney Julie Peters in a response filed Friday. "The court should deny Baker's motion."
In the Dec. 4 motion, Baker's attorney, J. Blake Hendrix, of Little Rock, "asserts that the indictment fails to state the offense of federal-funds bribery, 18 U.S.C. § 666(a)(2), because it doesn't allege that Maggio was authorized to act on behalf of the Twentieth Judicial District as to its funds," wrote Peters.
But Peters argued that Maggio was an agent of Arkansas' judicial branch by being a judge for the 20th Judicial District, which includes Faulkner, Searcy and Van Buren counties.
"The indictment sufficiently alleges a connection between the alleged bribe and a state agency, as it alleges that Maggio accepted the bribe in exchange for a favorable ruling on a case that was before him," wrote Peters.
Also in the Dec. 4 motion, Baker argued that the indictment fails to state the offenses of federal-funds bribery and honest-services bribery/wire fraud because it doesn't "plead sufficient information to establish a quid pro quo," wrote Peters.
"The indictment in this case, Baker contends, fails to allege that Baker gave Maggio campaign contributions for the specific act of reducing the jury award," wrote Hendrix in the Dec. 4 motion. "The indictment, therefore, should be dismissed."
The indictment charges Baker under two federal bribery statutes. Under 18 U.S.C. § 666(a)(2), Baker is charged as a "payor" in federal-funds bribery; and under 18 U.S.C. §§ 1343 and 1346, Baker is charged with "a scheme or artifice to deprive another of the intangible right of honest services," namely, the people's right to the honest services of Maggio as their judge, wrote Peters.
With respect to a payor defendant, there is "no universal requirement that bribe payors and payees have a meeting of the minds about an official act," wrote Peters, citing case law upheld by the 8th Circuit.
"A payor defendant completes the crimes of honest-services and federal-funds bribery as soon as he gives or offers payment in exchange for an official act, even if the payee does nothing or immediately turns him in to law enforcement," wrote Peters, citing case law.
"Therefore, as to Baker's substantive charges (counts two through nine), the government need not show that Baker and Maggio had an actual meeting of the minds about the official act, only that Baker intended or attempted to form the quid pro quo," wrote Peters. "The fact that Maggio acted upon the intended quid pro quo is evidence of Baker's intent, but it is not an element of those offenses.
"The United States agrees with Baker that in federal prosecutions involving a campaign contribution bribe, the attempted quid pro quo must be explicit, or specific; however, this does not mean it must be stated expressly."
From January 2013 to April 2014, Baker was president, secretary and treasurer of LRM Consulting, a lobbying firm.
In July 2013, Maggio lowered a $5.2 million jury verdict against the owner of the Greenbrier Nursing and Rehabilitation Center to $1 million. The action took place July 10, the day after 10 $3,000 checks written by the nursing home's owner, Michael Morton, arrived at Baker's home. Authorities said the checks were made out to political action committees that were primarily helping Maggio's campaign for a seat on the Arkansas Court of Appeals.
The lawsuit had been filed against the nursing home by the family of 76-year-old Martha Bull of Perryville, who died in 2008 about two weeks after being admitted for rehabilitation for a stroke and an abdominal illness.
Morton has called the timing of the checks coincidental. They were written July 8, 2013, the same day Morton's lawyers asked Maggio to void or slash the jury award to Bull's family.
Morton, a Fort Smith businessman who hasn't been charged with a crime, has said the money was meant for Maggio's judicial campaign and was not an attempt to influence the outcome of the lawsuit.
Bull's daughters' lawsuit accusing Morton and Baker of interference was settled in October.
Also on Dec. 4, Hendrix filed a motion to dismiss the indictment because of "pre-indictment delay."
"The indictment alleges that each of the charges was committed between May 2013 and June 2014," wrote Hendrix. "The indictment was not filed until Jan. 10, 2019."
The FBI was busy during that time with the investigation, which included trying to recover text messages between Baker and Maggio, wrote Peters in a Dec. 17 response to the motion.
"The indictment in this case was timely returned, and the evidence was timely gathered," wrote Peters. "Baker's Fifth Amendment due process rights are intact. Because Baker falls far short of meeting his burden to demonstrate actual and substantial prejudice, the United States respectfully submits that Baker's motion should be denied.
Chief Judge D.P. Marshall Jr., who has been assigned to Baker's case, has yet to rule on the motions.