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DeLay Gets High Court Hearing On Dismissal

The Texas Court of Criminal Appeals (the state's highest criminal court) agreed to hear U.S. Rep. Tom DeLay's request for dismissal of the money laundering and conspiracy indictments brought by Travis County District Attorney Ronnie Earle. His attorney's also petitioned for the court to order an immediate trial charges pending against him. The court yesterday gave prosecutors one week to respond.

DeLay is racing to clear his name prior to Congressional leadership elections next month. If he is still under indictment at the time he will not be able to run for House majority leader - a position from which he has temporarily stepped down while fighting Earle's indictments.

For the lawyerly types you can read up on DeLay's Motion (PDF) and Original Petition for Writ of Habeas Corpus (PDF).

The Writ is fairly interesting, as DeLay's lawyers make a good case that the indictments against him do not allege offenses as a matter of law. I've pulled out the meat of their arguments (shown below) so that you don't have to wade through the PDF's:

Count 1 - DeLay's attorney's contend that the law at the time of the alleged offense did not allow for the charging of "criminal conspiracy." The legislature later amended the Election Code to allow for such a charge.

To state the obvious, Subchapter D of Chapter 253 of the Election Code is not contained in the Penal Code. The criminal conspiracy provision of the Penal Code does not apply to an offense set out in the Election Code. Id. "Conspiracy to violate the Election Code" is not an offense.

This Court has unequivocally concluded that, absent a specific statute providing otherwise, the criminal conspiracy provision of the Penal Code does not apply to criminal statutes outside of the Penal Code.

Count 2 - DeLay's attorney's contend that the law at the time of the alleged offense was very specific about what constituted "funds."

...[T]to properly charge an act of money laundering which occurred in 2002, the State must allege that Congressman DeLay conducted, facilitated, or supervised a transaction involving "funds." In 2002, the definition of "funds" only included coin or paper money, silver certificates, or Federal Reserve or Treasury notes as set forth in $34.02(2)(a)-(c), that were the proceeds of a crime. The definition did not include "checks." "Checks" cannot constitute "funds" for purposes of a 2002 money laundering allegation. All transactions referenced in Counts I and I1 of the second indictment concern checks, not coin or paper money, silver certificates, or Federal Reserve or Treasury notes. Therefore, the second indictment does not allege that "funds" were laundered. It does not allege an offense.


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Comments (7)

That "funds" argument is re... (Below threshold)
George:

That "funds" argument is really a stretch.
I guess you aren't funding terrorism if you
write a check to OBL.

IMO, a check is paper money. It has many more
limitations than Treasury notes but it is still
money.

I think it's a stretch also... (Below threshold)

I think it's a stretch also, and think that there's a better argument in that the funds represented by the checks were not the proceeds of a crime, which is also part of the definition of money laundering.

Count 2 is a real stretch. ... (Below threshold)

Count 2 is a real stretch. Maybe the court will agree and DeLay will be charged with wire fraud instead?

As for Count 1 - shouldn't the grand jury have checked to see if this was a case of ex post facto law?

On its face, the funds argu... (Below threshold)
JD:

On its face, the funds argument seems downright silly. However, given the law, which was apparently written in such a way that checks/drafts were not included in the definition of funds, any lawyer worth his/her/its salt would argue that.

It is my understanding that the Texas legislature laid out fairly explicit definitions of funds in the statute, and did not go back and change the definition until some time later.

It all boils down to what t... (Below threshold)
bobdog:

It all boils down to what the meaning of "is" is, doesn't it? I saw it on TV a few years ago.

If Earle had any compelling evidence, he would have included it in his indictment, and wouldn't have needed to beg for a true bill from one grand jury after another. The evidence would speak for itself.

If there's a conspiracy going on here, I suspect it's on the prosecution's part. Who do we see about that?

The real stretch is in the ... (Below threshold)
Mac Lorry:

The real stretch is in the charge of money laundering, not in the definition of funds. Money laundering is the converting of illicitly gotten money into untraceable money that appears legitimate. To do that requires hiding the source of the original money. That's why "funds" does not include "checks." It's damn hard to hide the source of the money if it's never removed from the banking system. The only way checks can be used in a traditional money laundering scheme is to first convert them into cash. In DeLay's case donations were given in the form of checks that were deposited into a Texas political entity's bank account. A check was written against that bank account and deposited into a national political entity's bank account. One or more checks from that bank account were then sent back to one or more Texas bank accounts. At no time did the money leave the banking system. The money started out as legitimate and never left the banking system.

Texas law say you can't use money from a Texas political entity to fund national candidates for some offices. That law did not anticipate the indirect funding that took place in this case, so it wasn’t violated. Earle knows this so he trumped up a bunch if irrelevant charges for pure political reasons. Hopefully there's a federal prosecutor looking at what Earle is doing to see what laws he has broken.

While you're all busy findi... (Below threshold)
Chris:

While you're all busy finding DeLay innocent based on a reading of the indictments, you may be interested to know that the subject of this thread is erroneous. DeLay's spokesman falsely reported to the press that the court had agreed to hear the case. They only said they would consider hearing it. Hope this doesn't affect any of the ongoing deliberations by all you legal beagles.

I just find it hard to believe that DeLay's spokesman would tell the media a falsehood designed to make his boss look better.




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