TOM DELAY SENTENCED TO THREE YEARS IN PRISON

A Texas judge sentenced former House minority leader, Tom Delay, to three years in prison for a scheme to contribute corporate money, in violation of Texas law, to Republican candidates, yesterday.

The scheme involved directing $190,000 to the Republican National Committee. Then the Republican National Committee donated $190,000 to Republican races in Texas. The goal was to obtain a Republican majority in the Texas Legislature which would then be able to gerrymander Congressional districts to increase the number of Republicans in the Texas delegation, strengthening Delay’s position in the Congress and in the state.

DeLay violated at least two cardinal rules of sentencing at the hearing before Senior Judge Pat Priest in Austin. First he denied doing anything wrong. That may work before the jury makes a finding of guilt. But once the jury makes that decision you are guilty and denying wrongdoing is not going to get you favorable treatment from a judge.

Second, he blamed the prosecutor for selective prosecution. Since most judges are former prosecutors this doesn’t work. Furthermore it is likely that the same judge who is about to sentence you denied an earlier motion to dismiss the case on selective prosecution grounds. This is not the way to get favorable treatment from the judge.

You are better off saying nothing that criticizing the prosecution of denying guilt.

DeLay was convicted on two counts. One count involved a conspiracy to violate the Texas law prohibiting donating corporate money to candidates. The other count charged money laundering. Judge Priest ¹sentenced DeLay to three years in prison on the conspiracy charged and gave him ten years probation on the money laundering count.

The judge released him on $10,000 bail pending appeal. There are a number of appellate issues in the case. But perhaps the major one is the use of the money laundering statute. The typical defendant convicted of money laundering uses money earned in drug transactions to finance legitimate business. Then he/she takes the money out of the business and legally deposits it in the bank. If this defendant attempted to deposit drug money directly into the bank he/she would be caught and charged with drug dealing. But it is the attempt to take dirty money and make it into legal profit that is money laundering. The IRS defines “money laundering” as referring “to the activities and financial transactions that are undertaken specifically to hide the true source of the money. In most cases, the money involved is earned from an illegal enterprise and the goal is to give that money the appearance of coming from a legitimate source.”

Texas law defines money laundering as:

(a) A person commits an offense if the person knowingly:

(1) acquires or maintains an interest in, conceals, possesses, transfers, or transports the proceeds of criminal activity;

(2) conducts, supervises, or facilitates a transaction involving the proceeds of criminal activity;

(3) invests, expends, or receives, or offers to invest, expend, or receive, the proceeds of criminal activity or funds that the person believes are the proceeds of criminal activity; or

(4) finances or invests or intends to finance or invest funds that the person believes are intended to further the commission of criminal activity.

(a-1) Knowledge of the specific nature of the criminal activity giving rise to the proceeds is not required to establish a culpable mental state under this section.

(b) For purposes of this section, a person is presumed to believe that funds are the proceeds of or are intended to further the commission of criminal activity if a peace officer or a person acting at the direction of a peace officer represents to the person that the funds are proceeds of or are intended to further the commission of criminal activity, as applicable, regardless of whether the peace officer or person acting at the peace officer’s direction discloses the person’s status as a peace officer or that the person is acting at the direction of a peace officer.

(c) It is a defense to prosecution under this section that the person acted with intent to facilitate the lawful seizure, forfeiture, or disposition of funds or other legitimate law enforcement purpose pursuant to the laws of this state or the United States.

(d) It is a defense to prosecution under this section that the transaction was necessary to preserve a person’s right to representation as guaranteed by the Sixth Amendment of the United States Constitution and by Article 1, Section 10, of the Texas Constitution or that the funds were received as bona fide legal fees by a licensed attorney and at the time of their receipt, the attorney did not have actual knowledge that the funds were derived from criminal activity.

. . .

Without reviewing the trial transcript with a fine toothed comb it is impossible to say whether the prosecution met its burden. But there are certainly some sections that do not apply. ² Furthermore the appellate court will have to look at the historical record to determine if it was the intent of the legislature to outlaw the type of activity carried out by DeLay. for example did the legislature consider corporate donations to election campaigns to be “criminal activity.”

But Judge Priest handled it wisely. By sending him to prison on the conspiracy charge, which is stronger than the money laundering charge, he seems to insure that DeLay will eventually spend some time in prison