Houston's Clear Thinkers

< Remembering Chocolate Thunder | Main | Update on the case of Dr. Pou >

February 5, 2007

"Mike Nifong would approve?"

In criminal law appellate circles, the Fifth Circuit Court of Appeals is known as a black hole into which appeals of convictions go and reversals rarely occur.

However, about a year ago, the Fifth Circuit vacated a criminal conviction of one Humberto Cuellar, who had been convicted of international money laundering after he was found with $83,000 hidden in his VW Beetle as he headed to Mexico via Del Rio, Texas. The prosecution needed to show that Cuellar’s transportation of the money was designed to conceal its source and that Cuellar knew of the concealment. Inasmuch as the prosecution focused solely on the fact that the money was hidden in Cuellar’s car to establish these elements, a Fifth Circuit panel concluded that the evidence was insufficient to support conviction and that money laundering requires some showing that the defendant tried to pass off the money as legitimate. In short, simply attempting to smuggle the money to Mexico does not equate with money laundering.

But not so fast. The Fifth Circuit decided to rehear the appeal en banc and, in this decision, reverses the panel decision and affirms the original conviction by a 13-3 vote. In a stinging dissent, Judge Jerry Smith of Houston notes that the majority's decision facilitates prosecutorial misconduct by allowing the government to charge Cuellar with the crime of money laundering -- which carries a sentence of up to 20 years -- rather than his true crime of currency smuggling, which has a sentence of only up to five years. In arguing that the prosecution didn't come close to making a money laundering case, Judge Smith observes that "this is a case of a prosecution run amok" and that Mike Nifong -- the disgraced former prosecutor in the Duke lacrosse team case -- "most surely would approve." Ouch!

Hat tip to Robert Loblaw.

Posted by Tom at February 5, 2007 4:42 AM

Comments

Post a comment