A former Faulkner County judge who spent 51 months in federal prison after pleading guilty to a federal bribery charge has asked the presiding judge to dismiss the information and the case in its entirety through entry of an order nunc pro tunc -- a Latin term meaning "now for then" -- that would effectively wipe the slate clean.
Michael Maggio, 61, of Conway, pleaded guilty to bribery concerning federal program funds before U.S. District Judge Brian Miller on December 9, 2015, and was sentenced on March 24, 2016, to serve 10 years in federal prison. Maggio testified in the bribery conspiracy trial of Gilbert Baker, a former state senator from Conway, who was accused of funneling bribes from a Greenbrier nursing home owner in the form of campaign contributions to Maggio's aborted Court of Appeals campaign.
Baker, who in 2013 was working as a lobbyist and Republican Party fundraiser, helped arrange contributions from Greenbrier Nursing and Rehabilitation Center owner Michael Morton for Maggio's campaign. The next year, Maggio withdrew from the race after a scandal related to comments he was purported to have made on a Louisiana State University website. Federal prosecutors accused Baker of bribing Maggio as part of a scheme to get Maggio to lower a financial judgment against Greenbrier Nursing and Rehabilitation Center in the 2008 death of patient Martha Bull.
Bull, who had suffered a stroke, died two weeks into what was supposed to be a one-month rehabilitation stint at the nursing home. Her family was awarded $5.2 million by a jury that concluded the nursing home was negligent in Bull's death.
Baker was accused of arranging the 2013 contributions as a bribe to get Maggio to reduce a jury award against the nursing home from $5.2 million to $1 million, which he did after Morton sent 10 $3,000 checks to Baker that were distributed to 10 political action committees set up by Baker.
At the same time, Baker also received $48,000 from Morton for the judicial campaign of Rhonda Wood, now a state supreme court justice, and a $100,000 gift to the University 0f Central Arkansas. Morton and Wood also testified for the government at Baker's trial. Both have denied any wrongdoing in the matter and neither were ever charged.
Indicted in 2019 on one count of bribery conspiracy and seven counts of honest services wire fraud, Baker was acquitted of the bribery conspiracy charge after a three-week jury trial in July 2021 before Chief U.S. Judge D. Price Marshall Jr., who declared a mistrial after the jury deadlocked on the remaining counts. In October 2022, just two weeks before Baker was scheduled to be retried on the remaining counts, government prosecutors asked the court to dismiss the indictment with prejudice, meaning the charges cannot be refiled.
According to the motion, filed late Monday by Maggio's attorney, James Hensley of Conway, Maggio is requesting that Miller issue the order to "place him in the same condition as all other defendants or persons of interest in this case" through a nunc pro tunc order "to dismiss with prejudice the Information against him and exonerate him of any charges."
If successful, according to the motion, Maggio would be eligible to have his license to practice law restored.
"Where other defendants may be able to continue their career after a prison sentence, i.e., plumber, contractor, etc.," Hensley wrote in the motion, "without this Court's intervention, Mr. Maggio has little chance of returning to his chosen profession as an attorney."
Contacted by phone Tuesday morning, Hensley said if the motion is granted, it would have much the same effect as a pardon and would effectively wipe out Maggio's bribery conviction. Doing so would restore all of Maggio's rights as a citizen, including his right to vote, to run for public office, to own firearms, and to serve on a jury, among other rights impacted by a felony record.
"I would think this would have the same effect as a pardon," Hensley said. "Yeah, I do, because a pardon says you don't have a felony on your record, you can't be charged with it and it can't be used against you, so yes, it would be the same as not having a felony on your record."
Asked if a pardon petition had been considered, Hensley said no.
"Not at this point," he said. "We really haven't considered a pardon at all."
Since his release from prison, Hensley said, Maggio has been working with his son installing fiber optic networks and spending time with his family.
"With eight kids and a bunch of grandkids, that's what their weekends are filled with," he said. "The goal here is to just restore his life. The law allows that, it appears, case law allows that and the statute has been modified so we would like to see that happen."
In the motion, Hensley said there was no nexus between Maggio and the receipt of federal funds, meaning Maggio received no property or financial gain from the federal government, which he argued is a necessary element to support a charge of federal program bribery. He cited several cases he said supported the motion, including a 2020 U.S. Supreme Court decision in United States. v. Bridget Anne Kelly which reversed a lower court ruling on the grounds that the federal fraud statutes in 18 USC § 666(a)(1)(B) -- the statute under which Maggio entered his guilty plea -- require that any financial gain would have to come directly from federal funds.
[DOCUMENT:Read Motion filed by Maggio's attorney
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"You can't just say the judicial district received federal funds," Hensley said. "There has to be proof of a direct connection to show that the funds came from the federal government."
Asked whether Maggio intends to seek reinstatement of his law license and return to the practice of law if the motion is granted Hensley said that wasn't the motivating factor behind the motion.
"This doesn't mean he gets his law license back and that's not his sole reason for doing it," he said. "He just wants to be treated like everybody else that was a party to this action. Nobody's been found guilty, several people who could have been charged were not charged and he just wants to be like everybody, not guilty."
A spokesperson for the U.S. attorney's office declined to comment on the matter but said attorneys there are preparing a response to Maggio's motion that will be filed once it is completed.