Posted on 12/19/2005 9:47:35 PM PST by flattorney
In the Matter of Ronnie Earle: I Accuse (Part I)
Solomon L. Wisenberg - Attorney At Law
November 14 & 22 ,2005
We live in the most powerful country in the world and America is arguably at the zenith of its historical strength. Our leading journalists and newspapers, the New York Times to the contrary notwithstanding, are celebrated as models of professionalism and sophistication. Many newspapers and television networks employ journalists with law degrees or at least with some modicum of legal training. Cable television networks devote a significant portion of their programming to trials and legal issues and one such network, Court TV, is supposedly all about the law. Why is it, then, that none of these persons or entities has seriously examined the criminal charges against former House Majority Leader Tom DeLay in the light of Texas statutory and case law? To do so is to discover that the charges against DeLay will almost certainly be dismissed.
This is not really about Tom DeLay. You can love him or you can hate him. It is about Travis County District Attorney Ronnie Earle and about our collective glee whenever a person of an opposing ideology gets indicted. Tom DeLay will never go to trial, if Judge Pat Priest is as honest and judicious as his reputation suggests. As soon as the charges against DeLay are dismissed, however, the inquiries into Earle's official conduct should begin. We don't need to blather on anymore about Earle's supposed partisanship or DeLay's purported sleaze. We have the indictment now, and we know the law.
Title 4, Section 15.02 of the Texas Penal Code is the general criminal conspiracy statute. In 1977 the Texas Court of Criminal Appeals, the highest court in Texas authorized to rule on criminal cases, held in Baker v. State, 547 S.W.2d 627 (Tex.Cr.App.1977), that Section 15.02 could not be applied to a criminal offense defined by another law (that is, defined by a law located outside of the Penal Code) unless the other law explicitly referenced the Penal Code. The non-Penal Code offense at issue in Baker was the Texas Controlled Substances Act. Baker followed a similar holding in Moore v. State, 540 S.W.2d 140 (Tex.Cr.App. 1977), which had found Section 15.01 of the Penal Code, the general attempt statute, inapplicable to the Controlled Substances Act. Both rulings were based on a strict reading of Penal Code Section 1.03(b) which stated in part that "[t]he provisions of Titles 1, 2 and 3 of this code apply to offenses defined by other laws, unless the statute defining the offense provides otherwise." Since the conspiracy and attempt statutes were contained in Title 4, they could not apply to the Controlled Substances Act, the Court of Criminal Appeals reasoned, unless the Controlled Substances Act provided otherwise. The Controlled Substances Act did not provide otherwise, and did not contain its own attempt or conspiracy provisions. (The Texas Legislature later amended the Controlled Substances Act and it now expressly references Title 4 Penal Code offenses.) Both Baker and Moore were written by Tom G. Davis, a widely respected mainstream jurist. In reversing Baker's conviction and ordering the prosecution dismissed, Davis ruled that "[t]he complaint and information in the instant case do not allege an offense against the laws of this state."
Baker is still the law in Texas, and has been for 28 years. The pertinent portions of the conspiracy statute (Section 15.02) and of Section 1.03(b) remain the same. Earle's original indictment of Tom DeLay charged that DeLay conspired in October of 2002 to violate the Texas Election Code. (This was the only charge against DeLay.) The Election Code is not a part of the Penal Code. In 2002, the Election Code did not contain a conspiracy provision or reference or incorporate Section 15.02. The Election Code was amended, effective September 1, 2003, to permit application of Title 4 offenses, including the Section 15.02 conspiracy statute. But, as every schoolboy knows, the amended version cannot be applied to DeLay's alleged conduct without violating Ex Post Facto principles. Ergo, Earle's original indictment of DeLay did not, in the words of Tom G. Davis, "allege an offense against the laws of this state." According to a story in the Washington Post, Earle did not learn that there might be a problem with the original charge until his assistants told him about it, shortly after the indictment was returned. It is difficult to overemphasize the professional incompetence of such behavior. The Penal Code went into effect in 1973. The Election Code was enacted in 1975. Earle was elected Travis County District Attorney in 1976. Baker was decided in 1977. DeLay was indicted in 2005.
What did Earle do, upon discovering his mistake? Did he order new pocket parts? No, he re-indicted DeLay but kept in the original charge of conspiracy to violate the Election Code. I will deal in my next post with the fresh allegations contained in the superseding indictment. But Earle's decision to re-indict DeLay for the Election Code conspiracy, after being informed about Baker, has to go down as one of the most sinister and improper prosecutorial actions in Texas history.
= = = = = = =
In the Matter of Ronnie Earle: I Accuse (Part II)
Solomon L. Wisenberg - Attorney At Law
November 22, 2005
Today retired San Antonio Judge Pat Priest will hear arguments on the motions in Tom DeLay's criminal case. If Judge Priest follows Texas criminal statutory and case law, there is little question that all charges against the former House Majority Leader will shortly be thrown out. I have already detailed in these pages how Travis County District Attorney Ronnie Earle indicted Tom DeLay for conspiracy to violate the Texas Election Code, a crime that did not exist in 2002, the year of DeLay's alleged acts. In this post I will discuss a fundamental problem with Earle's charges of money laundering and conspiracy to launder money, to wit--checks did not constitute the laundered "proceeds of criminal activity" in 2002.
DeLay's alleged criminal acts occurred in 2002. He was originally indicted on Thursday, September 28, 2005, along with co-defendants John Colyandro and James Ellis, on one count of conspiracy to violate the Texas Election Code. The Election Code provision that was the object of the conspiracy prohibits corporate contributions to Texas political candidates. DeLay and his co-defendants were re-indicted on Monday, October 2, 2005, on one count of conspiracy to violate both the Texas Election Code and the money laundering statute and on one substantive count of money laundering. The crime of money laundering requires the commission of an underlying offense, from which "proceeds" are "laundered." The alleged underlying offense of the money laundering count was "knowingly making a [prohibited corporate] political contribution." According to the re-indictment, DeLay and his co-defendants conspired to have Texans for a Republican Majority PAC ("TRMPAC") send corporate contributions to the Republican National State Elections Committee ("RNSEC") in the form of a $190,000 check. In exchange for that check, the Republican National Committee ("RNC") sent individual checks totaling $190,000 to seven Republican candidates for the Texas House of Representatives. The names of the candidates and the amounts to be contributed to each were suggested to the RNC by TRMPAC. The re-indictment alleged that the money laundering consisted of the second half of the scheme-the transfer of the individual checks "in the aggregate value of $190,000" from the RNC and RNSEC to the seven candidates supported by TRMPAC.
DeLay stands accused in Count II of knowingly conducting, supervising, and facilitating a transaction involving the "proceeds" of criminal activity in violation of the state money laundering statute, Texas Penal Code Section 34.02. In 2002, the year of the alleged offense, Section 34.01 of the Penal Code provided that "'Proceeds' means funds acquired or derived directly or indirectly from, produced through, or realized through an act." Section 34.01 defined "funds" as follows.
"'Funds" includes:
(A) coin or paper money of the United States or any other country that is designated as legal tender and that circulates and is customarily used and accepted as a medium of exchange in the country of issue;
(B) United States silver certificates, United States Treasury notes, and Federal Reserve System notes; and
(C) official foreign bank notes that are customarily used and accepted as a medium of exchange in a foreign country and foreign bank drafts."
So, in 2002 the "proceeds" of criminal activity meant "funds" acquired, derived, produced or realized through an act. "Funds" in turn included: coin or paper money designated as legal tender, circulating, and used as a medium of exchange; United States silver certificates, United States Treasury notes, and Federal Reserve System notes; and, official foreign bank notes used and accepted as a medium of exchange in a foreign country, and foreign bank drafts. Most conspicuously, "funds" did not include checks. This was no accident. The final version of the 1993 money laundering statute was far narrower than the draft first introduced in the Texas House of Representatives. The initial draft prohibited the knowing facilitation of a transaction involving "property" that was the "proceeds" of criminal activity. Property was defined broadly to cover tangible or intangible personal property as well as "a document, including money, that represents or embodies anything of value."
In 2005, the Texas Legislature amended the money laundering statute and broadened the definition of "funds" to include "currency or its equivalent including an electronic fund, personal check, bank check, traveler's check, money order, bearer negotiable instrument, bearer investment security, bearer security, or certificate of stock in a form that allows title to pass on delivery." The House Research Organization's analysis of the amendment states that it would "broaden the definition of 'funds' to include money other than cash." The analysis also notes, in the "Supporters Say" section, that "[u]nder current law, prosecutors may not prosecute offenders for money-laundering if the offender received a form of money other than cash, such as checks or money orders. This is inadequate as it prevents prosecution under this statute in an array of cases." The new bill "would fix this problem by covering money received in a variety of forms other than cash."
I am aware of no reported cases under the original money laundering statute in which the proceeds of criminal activity are identified as checks. In the vast majority of the cases, the laundered proceeds consist of currency. There are no reported cases even discussing whether a check can constitute laundered funds. The reason for this is pretty simple. Until Mr. Earle came along, and rushed to include a money laundering count against Tom DeLay, no prosecutor in Texas was dumb enough to charge that checks were "funds" under the statute. The rest of them could read. Normally, an indictment that tracks statutory language is sufficient to withstand a motion to dismiss for failure to allege an offense. Earle made this very point in a reply brief filed yesterday, which argued that the money laundering count properly alleged the statutory element of laundered "funds." But when the indictment's factual allegations, setting out the "manner and means" by which the offense was committed and putting the defendant on notice, make it clear that the state is proceeding on an erroneous legal theory, the indictment must be dismissed. Such is the case with the counts involving money laundering and conspiracy to commit money laundering. Expect Count II and the conspiracy to commit money laundering portion of Count I to be dismissed. - end
Mr. Wisenberg is a white-collar criminal defense attorney in Washington, D.C. His practice is primarily devoted to representing individuals and businesses exposed to federal criminal inquiries or charged with federal crimes. Prior to entering private practice, Wisenberg was a federal prosecutor for 12 years, culminating in his service as deputy independent counsel in the Whitewater Investigation.
Posted by TAB
That is exactly how I see this whole thing playing out, Delay never goes to trial and Earle is CONVICTED!
There are other prosecutors in this case besides Earle. I wonder, for the sake of argument, if they and Earle can also be charged with a criminal conspiracy in their efforts to indict someone without sufficient cause. IOW, they collectively know he has broken no law, but they pursue the case anyway.
But in the end Priest ruled the money laundering charges stand and that there were cases to support checks as "funds" for the purposes of money laundering.
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