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checks aren’t cash

DeLay wants to sue

Whatever you say, dude.

Are YOU fit to judge me?

Are YOU fit to judge me?

Former House Majority Leader Tom DeLay, reveling in victory Thursday against Texas prosecutors in a money-laundering case, said his political career is over but he’s eager to return to the courthouse.

If he can find a lawyer “with a backbone,” DeLay said, he’ll considering suing the Travis County district attorney for the eight-year legal clash that ended with an appeals court tossing his conviction.

“I cannot take this laying down. For the welfare of the people that serve in the future, I can’t just let this go,” he said.

The threat was vintage DeLay. As the GOP’s No. 3 leader in the House after the 1994 takeover, he earned the nickname “The Hammer” for an aggressive style that cowed fellow Republicans and tormented Democrats.

Yes, and like other best-forgotten relics of bygone decades, he’s back to enjoy a moment in the sun and to try to cash in while he still can. I wouldn’t go lawyer-shopping just yet, however, since there’s still the small matter of the state’s appeal to the CCA. Mark Bennett thinks that the top court’s all-GOP panel isn’t likely to grant discretionary review, but with all due respect to his infinitely greater knowledge of the criminal justice system, I disagree. The CCA may be a bastion of Republicans, but they’re pro-prosecutor first and foremost. Maybe there’s enough overlap between Republicans and prosecutors in this state to conflate the two, but I believe there’s a difference. I mean, just ask yourself: What would Sharon Keller do? Sure, maybe she’s rubbed elbows with Tom DeLay before, at a fundraiser or an execution-watching party, but do you think that’s enough to overcome her bedrock belief that anyone who’s been arrested for a crime must be guilty of something, and it’s her job as a judge to make sure they stay guilty for it? Anything is possible, I guess, but expecting Sharon Keller to buy the argument of a defendant seems like a losing bet to me.

Yes, I know she’s not the only judge on the CCA, but the rest of them are hardly flaming defense attorneys. And before you suggest that Keller might listen to the arguments before making up her mind, I have to ask – Have you ever read one of her opinions? The facts don’t exist to shape her opinion, the facts exist to be shaped to fit her opinion. Who are we kidding here? If Sharon Keller wants you to be guilty, that’s all the fact she needs.

Anyway. Point is, this still isn’t over. And to answer Lisa Falkenberg’s question about the two guys that pled guilty, Jim Ellis and John Colyandro both had provisions in their plea agreements that took into account the possibility that DeLay’s conviction could get tossed. As such, I think they’re both pretty happy right about now.

DeLay gets off


Do YOU feel safe with me out on the streets?

Former U.S. Rep. Tom DeLay’s political money laundering conviction was overturned by the state’s 3rd Court of Appeals on Thursday.

“Based on the totality of the evidence, we conclude that the evidence presented does not support a conclusion that DeLay committed the crimes that were charged,” the judges ruled. “The fundamental problem with the State’s case was its failure to prove proceeds of criminal activity.”

The decision reversed DeLay’s trial court conviction.


Two of the three appellate judges said the state failed to prove that the money being laundered was the result of any criminal activity. In a dissent, Justice J. Woodfin Jones disagreed on that point, saying the money came from illegal corporate contributions. “A rational juror hearing the evidence presented in this trial could have found that the relevant corporate contributions… were made with the intent that they be used to support individual candidates or be put to other purposes not authorized” by law, he wrote.

You can read the majority opinion here and the dissent here. If you believe this decision was influenced by politics, you will be unhappy to learn that Justice Woodie Jones, the only Democrat currently on the 3rd Court of Appeals, is not running for re-election next year. Personally, I’m shaking my head at the fact that DeLay’s appeal has vindicated the ridiculous checks aren’t cash argument. The good news is that DeLay’s win might be short-lived.

However, Thursday’s victory for DeLay does not end the long-running case _ dating back to the 2002 elections _ because Travis County District Attorney Rosemary Lehmberg promised to appeal to the Texas Court of Criminal Appeals.

“We are absolutely going to appeal it,” she said. “We strongly disagree with the opinion.”

Lehmberg, a Democrat, said she was particularly concerned that two appellate justices substituted their judgment on the facts of the case that twelve jurors heard for weeks.

The CCA has previously swatted down the “checks aren’t cash” defense, making it one of the few times that its rabid pro-prosecutor bias was applied for a good purpose. We’ll see if history repeats itself. In the meantime, gird your loins for DeLay’s victory lap/comeback tour, which is sure to be every bit as ugly as his appearance on “Dancing With The Stars” was. BOR, Juanita, Texpatriate, Political Animal, and Burka have more.

Can you believe it’s been ten years?

Where were YOU when it all began?

Ten years (and one week) ago, four defeated Democratic candidates for the State House filed a lawsuit against the Texas Association of Business, claiming that TAB funneled illegal corporate contributions into state legislative races in the 2002 election. As you can see from what I wrote at the time – yes, I was blogging that long ago – I didn’t think it was likely that anything would come of this. Boy, was I wrong about that. This litigation started a chain of events that eventually led to a Travis County DA investigation of Tom DeLay and his arrest and conviction, and also to his appearance on Dancing with the Stars. Amazingly, the story is not over, and may not be over any time soon. DeLay is of course appealing his conviction, and he still has the Court of Criminal Appeals to plead to if he doesn’t win this round. His cronies Jim Ellis and John Colyandro took pleas in recent months after a similar line of appeal failed to get their indictments quashed. Their plea deals include a get-out-of-probation-free clause in the event that the infamous Citizens United ruling winds up mooting the Texas law that led to all their prosecutions. I thought about all this back when Ellis copped his plea, and put a note on my calendar to commemorate the anniversary, which I didn’t get to in time because I kind of suck at that sort of thing, but what does another week mean in this saga? I might want to create a reminder for the 20th anniversary of the original lawsuit, because it’s possible there could still be unfinished business by then. Anyway, take a moment and marvel at the wonder of it all. Where were you when it all began?

UPDATE: Just to be clear, DeLay made his memorable appearance on Dancing With The Stars prior to his trial and conviction. I have changed the wording in that sentence to clarify.

Colyandro takes a plea

Missed this on Friday.

Who's next?

It took five minutes for Capitol figure John Colyandro to end a decade-long saga that swept his boss, former U.S. House Majority Leader Tom DeLay, out of Congress and politics altogether.

Colyandro, the last individual with charges pending in the DeLay money-laundering case, pleaded guilty Friday to lesser charges of accepting illegal political contributions during the 2002 state legislative elections.

He received one-year deferred adjudication on two Class A misdemeanor charges, meaning there will be no final conviction on his record if he successfully completes unsupervised probation. He also was fined $8,000.


Despite Friday’s plea, Colyandro continues to face civil litigation arising from the 2002 election.

DeLay remains free on bail, pending his appeal of his three-year prison sentence and conviction on conspiracy and money-laundering charges.

A third co-defendant, Jim Ellis, DeLay’s right-hand political staffer in Washington, D.C., pleaded guilty in June to a felony charge of making an illegal campaign contribution. Ellis, who negotiated the $190,000 exchange, received four years of probation and was fined $10,000.


Colyandro’s plea bargain includes a provision, similar to one offered to Ellis, that takes into account the possibility that the current state law might be challenged.

See here and here for the relevant bits on the criminal cases. I’ve no idea where any civil litigation stands at this point – honestly, I thought that had been resolved years ago, but I suppose there still could be something out there, or the potential for something in the future once the criminal stuff is all done. The only case still going is DeLay’s. It’s not the end of an era yet, but you can almost see it from here.

DeLay argues his case before the appeals court panel

It’s an old, familiar argument.

Who are YOU to say that checks aren't cash?

Former U.S. House Majority Leader Tom DeLay should not go to prison on money-laundering charges because the 2002 campaign transaction involved a $190,000 check and not cash, his lawyer argued before the Third Court of Appeals Wednesday.

Houston lawyer Brian Wice said the Legislature later changed the money-laundering statute to include checks, proving that DeLay’s transaction was not covered by the law. But Travis County prosecutor Holly Taylor said lawmakers in 2005 were only clarifying what was already the law.

She said Wice’s argument is ludicrous because a drug dealer would have been guilty of money laundering if he used a money order but not a cashier’s check.

Taylor pointed out that criminals using checks were being successfully prosecuted before the 2005 change in the law, while Wice countered that their lawyers “didn’t have the sense” to raise the no-cash defense.

Yes, it’s our old friend the checks aren’t cash argument. Perhaps it’s just that previous lawyers didn’t have the brass to raise that defense. I’ll be honest, I thought the Court of Criminal Appeals settled this matter in 2010 when they unanimously ruled that the state’s money-laundering statute did apply to checks. That was an appeal from the Ellis/Colyandro trial, so I guess DeLay gets to make the same arguments himself. There’s also an issue being raised about whether or not the corporate donors knew what their money was going to, but this to me is the signature question. All we know for sure is that the CCA will get to rule on it again. The Trib has more.

Former DeLay aide Ellis pleads guilty

This was out of the blue.

Who's next?

Tom DeLay’s chief political aide, Jim Ellis, pleaded guilty Thursday to a felony charge of making an illegal campaign contribution during the 2002 election.

Ellis, who headed DeLay’s Americans for a Republican Majority political action committee, was the aide who negotiated an exchange of $190,000 of corporate money for campaign contributions to Republican candidates for the Texas Legislature, according to testimony in DeLay’s 2010 trial.

Ellis received a four-year probation and was fined $10,000 on a charge that he made a contribution of corporate money to a political party within 60 days of an election.


Under the terms of Ellis’ plea, the adjudication of the third-degree felony charge is deferred, meaning a final conviction won’t be reflected on his record if he successfully completes probation.

Ellis also cannot work for a political action committee in any capacity in which he handles or solicits corporate political contributions. There will be no travel restrictions for Ellis, who lives in Virginia.

Ellis also agreed to testify in any future legal proceedings. Charges are pending against Ellis’ co-defendant, John Colyandro of Austin, who is scheduled to appear in court Aug. 8. Colyandro was executive director of Texans for a Republican Majority, the political committee that DeLay chaired.

In exchange for Ellis’ plea, prosecutors dismissed conspiracy and money-laundering charges.

Prosecutors also agreed to cut Ellis a break in the event the state law is eventually overturned in court, which after the most recent “Citizens United” ruling you have to think is a live possibility. I must say, after all this time I did not expect someone to cop a plea, even though I have always believed that the case against Ellis and Colyandro was stronger than the one against DeLay himself. The most recent development in this case before now was last year when Judge Pat Priest recused himself after urging Ellis and Colyandro to consider accepting pleas. Funny how these things work, isn’t it?

Speaking of DeLay and recusals, we now have a pinch hitter for the Third Court of Appeals.

A San Antonio district judge was temporarily appointed to the 3rd Court of Appeals on Wednesday to help determine whether Justice Diane Henson, a Democrat, should be recused from considering Tom DeLay’s money-laundering case.

Under state appellate rules, when judges decline to recuse themselves — as Henson has done — the matter goes before the entire court to decide by a majority vote.

But three Republicans on the six-judge court have already recused themselves from hearing DeLay’s appeal, giving no reason for their removal. And the rules do not allow Henson to vote on the request.

Needing a third judge to decide DeLay’s motion to recuse, Woodie Jones, chief justice of the Austin-based 3rd Court of Appeals, last week asked the Texas Supreme Court to name a temporary panel member.

Chief Justice Wallace Jefferson responded Wednesday by appointing San Antonio District Judge David Berchelmann Jr. to the appeals court “for as long as may be necessary to hear and rule on the motion.”

DeLay’s lawyers have said that “anti-Republican remarks” made by Henson at a state Democratic Party convention in 2006 raised questions about her impartiality.

See here and here for some background. Judge Berchelmann is there to help decide whether or not Judge Henson can hear the appeal of DeLay’s conviction. If she is removed for the appeal, a substitute will have to be named for her, since there are no more un-tainted judges on the Third Court any more. By the way, if the name “David Bedrchelmann” sounds familiar to you, it’s because he was the judge in the Sharon Keller case. That case was a mess in more ways than one, and I can’t say I was impressed by Judge Berchelmann’s performance. That’s water under the bridge now, so we’ll see what happens here.

“Checks aren’t cash” back before 3rd Court of Appeals

Sometimes when you least expect it, Tom DeLay pops up in the news.

It would defy common sense to reverse the three-year prison sentence of former U.S. House Majority Leader Tom DeLay because his money-laundering case involved a check instead of cash, Travis County prosecutors are arguing.

Their argument comes in a legal brief to the 3rd Court of Appeals, the only court to embrace the novel defense before a higher court criticized the 3rd Court for acting prematurely during pre trial maneuvers and ordered DeLay to stand trial.

The check-versus-cash argument is only one of several legal points on appeal, but it might give the Sugar Land Republican his best chance to reverse his felony conviction because some of the judges previously appeared open to the argument. Republicans still control the majority on the Austin appeals court, 4-to-2, but half of the six judges have left the bench since the 2008 ruling that had judges publicly accusing one another of partisanship and acting in bad faith.


“No doubt an ordinary person would expect that a defendant could not circumvent the money laundering law by merely having the ill-gotten gains deposited in a bank and using a check to transfer the money,” [Travis County Assistant DA Holly] Taylor wrote.

Taylor noted that Texas courts have upheld guilty verdicts in other money laundering cases where the laundered funds consisted of checks written before the law was amended in 2005.

Taylor also challenged the reasoning behind the 3rd Court’s controversial opinion about checks.

Under the court’s theory, Taylor said, a drug dealer who deposited his criminal proceeds in a bank could not be prosecuted for money laundering if he wrote a check on that account. On the other hand, if the dealer withdrew cash or used a cashier’s check, he could be charged with money laundering.

“Certainly the Legislature never intended such nonsensical results,” Taylor wrote.

See my various posts here for background. The original ruling on the “checks aren’t cash” defense theory came in 2005. Whatever the 3rd Court of Appeals says – and I have no idea when they will say it – you can be sure this will go back to the CCA afterward, which to its credit got this one right the first time around. There’s still a couple of years to go before this one finally hits the end of the road.

DeLay files appeal of his conviction

The man has been a boon for the defense bar, I’ll say that much for him.

Tom DeLay’s appellate lawyer tapped a movie musical and Shakespeare in a wide-ranging appeal that argues the former U.S. House majority leader was wrongly convicted of conspiring to launder corporate dollars into campaign donations.

In 2002, DeLay’s political committee sent a $190,000 corporate check to the Republican National Committee that, in turn, agreed to donate the same amount from its noncorporate account to Texas candidates. State law prohibits corporate donations to candidates.

The monthlong trial before a Travis County jury last fall turned on the question: Were DeLay and his co-defendants laundering corporate money, or making the kind of “money swaps” both parties had done in the past?

To sum up the legal points in Houston lawyer Brian Wice’s appeal: DeLay didn’t do anything as part of a conspiracy. If he did, it wasn’t a crime. If it was, he couldn’t have known it was a crime. And, besides, the ban against corporate donations is a constitutional infringement on free speech.

Wice also requested a hearing to explain it all.

Judge Pat Priest, a visiting judge from San Antonio, sentenced the Sugar Land Republican, who was once one of the most powerful leaders in Washington D.C., to three years in prison. DeLay remains free pending an appeal that could take months, if not years. Prosecutors have weeks to respond to the brief filed late Thursday.

I should note that convicted felon Tom DeLay had previously filed a motion for a new trial. I have no idea what the status of that is. Also, Judge Priest had previously recused himself from the trial of DeLay’s cronies Jim Ellis and John Colyandro. A new judge has been named, but I have no idea when that trial may get underway. We may all be dead from old age by the time this finally gets adjudicated.

I have to say, DeLay has good taste in attorneys. He had Dick DeGuerin at trial, and Brian Wice is one of the top guys for appeals. As the story notes, he has a decent chance of winning thanks to the ridiculous “checks aren’t cash” ruling the Third Court of Appeals made a few years ago, for which it later received a spanking from the Court of Criminal Appeals. I had never expected DeLay to be found guilty in the first place, so even if he is ultimately freed the fact that I have been able to refer to him as “convicted felon Tom DeLay” in the interim will still have been sweet. And he’ll always be a convicted felon to me, no matter what the courts ultimately say.

Off to the appeals courts for DeLay

Whatever sentence awaits Tom DeLay – I strongly suspect it will be probation, but you never know – it will be a long time, if ever, before he begins serving it.

DeLay’s lead attorney, Dick DeGuerin, expressed confidence on Friday the Third Circuit Court of Appeals in Austin will rule in his favor because it has in the past. Add to that a varied assortment of available arguments, and DeGuerin and law experts say they’re convinced this is only the start of what will become a precedent-setting case.

“This is the first and only time that a prosecution like this has ever taken place in Texas. It’s totally unprecedented, and we believe we’re right,” DeGuerin said.

Yes, the Third Court of Appeals has distinguished itself in a bad way throughout this case. I totally understand Team DeLay’s glee at the prospect of taking their chances with them.

Some legal experts argue that such unprecedented cases immediately raise the interest of the appellate courts. Others, however, note that Texas’ conservative, largely Republican appellate courts do not have a strong record of siding with defendants.

“Statistically, he is going to be fighting an uphill battle,” said Philip H. Hilder, a former prosecutor who is now a Houston-based criminal attorney concentrating on white-collar cases.

The courts could see it as a “partisan fight” though, Hilder said.

“Then the courts are of his political persuasion,” he added. “But still, they would have to rely on precedent and they will have to really do back flips to do any favor to him.”


The appellate court in Austin has previously ruled in DeLay’s favor – striking down the first indictment and parts of the second, an indication the court thinks DeLay had a valid argument, DeGuerin said. So while the criminal court of appeals overturned that decision saying the issues first had to be brought to trial, DeGuerin says the court’s previous ruling paved the way for support now that the trial is over.

“There was no crime. There was no crime,” DeGuerin insisted, explaining the legal argument he will make. “It was not criminal for there to be a money swap – that is for lawful money, collected from corporations for the national Republican party, and for the Republican Party to send money collected from individuals to the Texas Republican Party. That was not unlawful.”

Barry Pollack, a Washington-based white-collar criminal defense attorney, agreed this is the best argument, even though it didn’t convince the jury. Money collected by the national party is segregated between corporate contributions and individual donations, then redistributed to Texas candidates from the pot of money donated by individuals, Pollack explained.

“Typically, in money laundering, you can trace the laundered money directly back to the illicit money. Here, you can’t. What they’ve done is they’ve used different moneys,” Pollack said. “The way the government looks at that is that it’s very effective money laundering because you’ve managed to make it into a different set of money, but what you’ve done in effect, is complied with the law.”

The one thing I know is that DeLay won’t be shy about making partisan arguments to the Republican judges on the appeals court. They’ve already shown their willingness to do those back flips for him, so why not try it again? PDiddie has more.

CCA overturns “checks aren’t cash” appeals verdict

For once, their pro-prosecution proclivities were good for something.

The Austin appeals court erred in deciding that the state’s money-laundering statute – used to prosecute associates of former U.S. House Majority Leader Tom DeLay – did not apply to transfers made via checks, the Texas Court of Criminal Appeals ruled today.

The court’s 9-0 decision also upheld the state’s election laws prohibiting corporations from making political contributions to candidates. DeLay’s associates – John Colyandro and Jim Ellis – had challenged the law as an unconstitutional infringement on First Amendment rights.


In 2008, the appeals court ruled that the money-laundering law did not apply to Colyandro and Ellis because it did not specifically refer to checks.

The law reads: “A person commits an offense if the person knowingly … conducts, supervises, or facilitates a transaction involving the proceeds of criminal activity.” The law defines proceeds as coin or paper money, U.S. Treasury notes and silver certificates and official foreign bank notes.

However, in its ruling today, the state’s highest criminal court chastised the lower court for applying an improper legal standard to its analysis of the money laundering statute.

Writing for the Court of Criminal Appeals, Presiding Judge Sharon Keller said Colyandro and Ellis improperly challenged the constitutionality of the money-laundering statute in a pretrial petition for a writ of habeas corpus. The appeals court had no authority to determine that the law only applies to cash payments, Keller wrote.

You can read the opinion here; thanks to TPJ for the pointer. See background here, here, here, and here. As Vince notes, this ought to clear the way once and for all for Tom DeLay and his buddies to be put on trial for money laundering for the illegal use of corporate campaign contributions in the 2002 election. The wheels do grind slowly, don’t they? I don’t know when the case will finally hit the courtroom, but I do know this: If DeLay appears for his day in court wearing his “Dancing with the Stars” costume, I’ll write a $100 check to the charity of his choice. BOR has more.

UPDATE: More from the Trib.

Keep talking, Tom

I’ll leave the commentary on Tom DeLay’s dancing prowess to the experts and simply note that he has succeeded in getting himself back in the news. Which means people are asking him for his opinions on things, which in turn means more chances for him to fib and dissemble.

There was one more thing I needed to know, and with the ice pack under his foot melting and his professional dance partner waiting to get back to rehearsing, he himself cut to the chase: “Don’t you want to ask me about Ronnie Earle?” Of course, he was referring to the D.A. who got a Texas grand jury to indict him four years ago, on campaign finance laws; Earle has yet to bring the case to trial, and DeLay has always called the case politically motivated.

So, what is going on with the case? “Well, I can’t get my day in court, that’s what’s going on…Now it’s been four years, one appeal after another, but it’s still hanging out there. All Ronnie Earle ever wanted to do was indict me.”

Of course, the current appeals are being pressed by DeLay’s co-defendants Jim Ellis and John Colyandro, who got a sweetheart ruling from the Republican majority on the Third Court of Appeals last year. The Third Court took forever to get to a ruling in the first place – the appeals Earle made on DeLay’s tossed indictment went all the way to the Court of Criminal Appeals and got a resolution before the Third Court bothered to rouse itself on this one, prompting the Democratic judges on the Court to complain about it being slow-rolled – which the reason why we’re all still waiting for DeLay to get that day in court he says he wants.

Meanwhile, Earle has said he’s considering running for governor, and “What do I say to Ronnie Earle? Run, baby, run. Run, baby run. And I will be at every campaign stop to tell my story.”

I think I speak for every Democrat in Texas when I say please, pretty please with heaping piles of corporate lobbyist cash on it, do exactly that. We would love for you to be out there at every campaign stop, reminding everyone of who you are and why you’re an ex-Congressman. And wear the sequins, too, it’s a great look for you.