By Rick Pfeiffer
Niagara Gazette — BUFFALO -- His attorney said Guy Bax's relationship with Falls contractor John Gross was "toxic."
But the Falls' former acting director of the Niagara Falls Department of Inspections will not pay the price of prison time as a result of that relationship.
U.S. District Court Judge Richard Arcara "departed" from federal sentencing guidelines and on Friday and placed Bax on two years of probation for his guilty plea, in January, to a single count of accepting illegal gratuities from Gross. Bax admitted to take the "gratuities" while he was the acting director of the city's inspections department.
"It was a well-researched sentence from a judge who read everything we sent him in our pre-sentence memorandum and everything sent to him from the government and the probation officer," Bax's defense attorney Terry Connors said. "Guy's conduct was at the lowest level on the scale of culpability. The sentence was entirely appropriate."
Under the terms of his plea agreement with federal prosecutors, Bax, 66, had been expected to face a sentence of between 8 to 14 months of incarceration and a fine of between $2,000 and $20,000 dollars. He would have been eligible for what is known as a "split sentence", meaning he could have done his time in so-called community confinement, at a half-way house, by serving weekends in jail or by being confined to his home.
While acknowledging that Arcara went well below that sentencing guideline, First Assistant United States Attorney James P. Kennedy, Jr. said the government would not appeal that decision.
"The judge determined that (incarceration) was not necessary," Kennedy said. "We accept the court's decision."
Bax was swept up in a federal law enforcement investigation of Gross, a high profile Falls plumbing contractor with prior federal criminal convictions.
In his plea deal, Bax admitted that between 2007 and January 2009, when federal agents raided Gross' Niagara Street business headquarters, he would routinely steer business to the three-time federal felon. Specifically, the one-time inspections chief admitted that in promoting Gross' business he would create the perception that it would be in a developer's best interest "to use Gross and his company and that if (they did that), they would have an easier time obtaining approvals (for permits) they sought."
Bax's plea agreement with prosecutors outlined an incident in fall 2007, when he met with a developer who was looking to convert a piece of property for a new business venture in the Falls. Bax provided the individual, referred to as "Business Person 1," with copies of the city's constriction codes and said, "You have to know the right people" to complete the development.
He told the developer he should hire Gross to work on the property conversion because Gross "knows the right people and he knows the (building) inspectors." Bax told the developer that others had tried to create similar projects here, but had failed because they were not using contractors who were "the right people."
The developer told FBI agents that, based on what Bax had told him, he hired Gross because he believed it was the only way to get his project completed. Gross was paid between $25,000 and $35,000 for the work.
In return for steering work to him, Gross remodeled a bathroom at Bax's home and snowplowed his driveway for free. Gross also took Bax on an expensive fishing trip and regularly included him in golf outings.
Arcara himself remarked on "how little" Bax received in return for steering business to Gross.
"Not withstanding how cheap (Bax) could be purchased, that discount doesn't discount the harm he did to the public," Kennedy said.
While Bax admitted his guilt in accepting a gratuity in only one instance, law enforcement sources have told the Gazette that he routinely engaged in that conduct.
Bax expressed "remorse" for his conduct.
"He is full of remorse and feels bad for the city," Connors said.