DENVER — Neither side is satisfied with the outcome of the 2012 conviction of former Oklahoma State Senate leader Mike Morgan for bribery.
Morgan is asking the 10th U.S. Circuit Court of Appeals to overturn his conviction.
Prosecutors want the court to order the trial judge, Robin Cauthron of the U.S. District Court in Oklahoma City, to put Morgan in prison for a “substantial period,” rather than the sentence of probation she imposed.
Both sides argued their positions Wednesday at the Denver-based appeals court.
Morgan, leaning forward in a front-row seat, listened intently. Afterward, he said on advice of counsel he could not say anything.
Judges asked attorneys on both sides many questions, but did not indicate how they might rule.
“We couldn't order him sent to prison, only that you (Cauthron) go back and give him another sentencing,” appellate judge Jerome Holmes told the prosecutor, Scott Williams.
Holmes, a former federal prosecutor and defense attorney in Oklahoma City, said the appellate judges have the option of telling Cauthron to reconsider the sentence on grounds that it was not reasonable, based on the case record.
A jury found Morgan, a Democrat, guilty of accepting $12,000 in bribes in 2006 and 2007 to influence legislation that would benefit the assisted-living industry and specifically the owner of one group of living facilities.
Prosecutors contend the money was disguised as attorney fees, but was corrupt payments.
Morgan, an attorney and Senate co-president pro tem in 2007, testified at his trial that the money was payment from the owner of Silver Oak Living Centers for legal work.
Silver Oak, based in Edmond, was in bitter disputes with state regulators. Morgan previously had served as an attorney for health care facilities.
All of the communication to Morgan by the facility's management indicated Morgan was hired “as a lawyer — not a senator,” his attorneys, in earlier written arguments, told the appellate judges. “There was no corrupt agreement or quid pro quo and accordingly there was insufficient evidence to convict.”
“Don't overreach to make an example of someone,” Derek Chance, an Oklahoma City attorney for Morgan, urged the judges Wednesday.
Prosecutor Williams, of the U.S. attorney's office in Oklahoma City, saw it differently.
“Mr. Morgan performed no legal service for Silver Oak,” Williams stated in written arguments. “Instead, he authored legislation that, as introduced, was tailor-made to solve Silver Oak's problems (with state regulators).”
Williams contends Cauthron's sentence of five years of probation “was substantially unreasonable. In a public corruption case involving a high-ranking public official, probation does not serve the goal of general deterrence and creates sentencing disparities.”
The prosecutor said sentencing guidelines recommended a prison term of between 41 and 51 months.
Prosecutor, judge disagree
Williams took issue with the reasons Cauthron stated for instead imposing a probationary sentence: her suspicions about the accuracy of the verdict, the collateral consequences for a person with high social and political standing, and an unusually large number of letters from friends, political supporters and colleagues.
Cauthron ordered Morgan to pay $12,000 as restitution, but imposed no fine.
Williams said a court officer in Oklahoma City who conducted a pre-sentence investigation for the judge reported that sentencing guidelines recommended a prison term of 10 years. That was based on Morgan's allegedly receiving corrupt payments of $141,665 from a landfill company and of $250,000 from a company considering building a power plant, in addition to the $12,000.
Jurors deadlocked on a verdict about the landfill payments and acquitted Morgan on the payments from the energy company. Cauthron did not use the guideline for a 10-year sentence because she concluded prosecutors failed to prove that Morgan had corrupt dealings with those two businesses.
The judges typically take several months to issue their decisions.