Ex parte Ellis

• Decision Date: 28 April 2010
• Docket Number: No. PD-529-09 to PD-545-09.,PD-529-09 to PD-545-09.
• Parties: Ex parte James W. ELLIS and John D. Colyandro, Appellants.
• Court: Texas Court of Criminal Appeals

309 SW 3d 71

Ex parte James W. ELLIS and John D. Colyandro, Appellants.

Nos. PD-529-09 to PD-545-09.

Court of Criminal Appeals of Texas.

April 28, 2010.

Jonathan D. Pauerstein, San Antonio, for Appellants.

Holly Taylor, Asst. Dist. Atty., Jeffrey L. Van Horn, State's Atty., Austin, for State.

KELLER, P.J., delivered the opinion of the unanimous Court.

This case involves constitutional challenges to the money laundering statute and to certain Election Code provisions relating to corporate contributions. With respect to the money laundering statute, we determine that the court of appeals inappropriately resolved issues that are not cognizable in a pretrial habeas proceeding. With respect to the Election Code provisions, we determine that the statutes are not facially unconstitutional. Consequently, we sustain the State's first ground for review and otherwise affirm the judgment of the court of appeals.

I. BACKGROUND

The State filed a number of indictments against Colyandro for election code violations. These indictments charged that, in 2002, on behalf of the Texans for Republican Majority Political Action Committee (TRMPAC), Colyandro knowingly accepted from several corporations political contributions in various dollar amounts that he knew were contributed in violation of Chapter 253 of the Election Code. The State also filed one indictment against Colyandro for money laundering and one indictment against Ellis for money laundering. The money laundering indictments alleged that the above contributions were transferred to the Republican National Committee (RNC) via a $190,000 check made payable to the Republican National State Elections Committee (RNSEC) that Colyandro signed and delivered to Ellis and that Ellis delivered to the RNC. The State later filed re-indictments of the money laundering charges. The re-indictments omitted any references to a "check," instead alleging the "transfer of funds of the value of $190,000" from TRMPAC to the RNSEC.

Ellis and Colyandro filed pretrial habeas corpus applications, which the trial court denied. On appeal, they argued that the Election Code provisions governing political contributions were unconstitutionally vague and overbroad with respect to protected First Amendment expression. They further argued that the money laundering statute was unconstitutionally vague if it were interpreted to apply to checks or to a transaction involving something other than cash.

Drawing a sharp distinction between contributions and expenditures, the court of appeals held that laws governing contributions were not subject to "strict scrutiny" but were reviewed under a less rigorous test of being "closely drawn" to meet a "sufficiently important interest."¹ Responding to the appellants' overbreadth argument, the court of appeals rejected the contention that Supreme Court cases prohibiting restrictions on expenditures had any application to the Texas Election Code provisions that restricted contributions.² Moreover, the court of appeals held that the appellants failed to demonstrate that the contribution restrictions reached a substantial amount of protected conduct.³ With respect to the appellants' vagueness claims, the court of appeals concluded that the Election Code provisions, though broad and complex, were not so indefinite as to deprive a person of ordinary intelligence of the ability to understand what was prohibited.⁴ The court held that "a person of ordinary intelligence is capable of properly designating whether his or her contribution is intended to support or oppose a measure (lawful), be used solely for administrative expenses (lawful), be used for unregulated expenditures (lawful), or be used `in connection with' a candidate's campaign (unlawful)."⁵ The court of appeals explained that "the statute places burdens on those making and accepting corporate contributions to designate and to ascertain the purpose of a contribution before giving it or using it in a campaign for elective office."⁶

The court of appeals answered the contention that the money laundering statute was unconstitutionally vague if it applied to checks by holding that the statute did not apply to checks.⁷ Whether the statute encompassed checks depended on whether checks were included in the definition of "funds."⁸ The statute provided that the term "funds" includes a list of specific items.⁹ According to the court of appeals, the term "includes" meant that the list was not exclusive.¹⁰ But, relying upon the principle of ejusdem generis, the court held that the term "funds" could only encompass items that were of the "same kind, class, or nature" as the items in the list.¹¹ The court of appeals then observed that all the items in the list were forms of cash or cash equivalents.¹² The court of appeals held that checks were unlike these items because a check is not guaranteed, and therefore does not function as cash or a cash equivalent:

Coin, currency, cash, or items that function as cash equivalents are, themselves, payment. By contrast, a check is a promise or commitment to make payment when the check is later presented for payment. Accordingly, payment by check that is not guaranteed in some way, such as a cashier's check or teller's check, is not payment in the same sense as payment by cash or cash equivalent.¹³

* * *

Cash or cash equivalents such as currency, Treasury notes, silver certificates, foreign bank drafts, cashier's checks, or other forms of payment similar to those enumerated in the pre-2005 version of section 34.01 are not at all similar to checks or other non-guaranteed negotiable instruments as a medium of exchange. Cash or a cash equivalent is, without more, a form of payment, and once the currency or other cash equivalent is delivered, payment is accomplished and is no longer contingent on some future event.¹⁴

During this discussion, the court of appeals noted that a "foreign bank draft" was a "teller's check," with payment guaranteed, and thus constituted a cash equivalent.¹⁵ "Foreign bank drafts" was among the items in the statutory list.¹⁶ The court of appeals also cited legislative history in support of its conclusion that the version of the money laundering statute that was applicable to the appellants was not intended to apply to checks.¹⁷

In a motion for rehearing, the State argued that the court of appeals erred in discussing whether or not the money laundering statute applies to checks because the appellants' claim with respect to checks was an "as applied" challenge to the statute that was not cognizable in pretrial habeas proceedings.¹⁸ In a supplemental opinion, the court of appeals conceded that it "may consider only facial challenges on pretrial habeas."¹⁹ Nevertheless, the court of appeals concluded that the State's contention was without merit. First, the court concluded that the appellants had in fact raised a facial challenge to the statute because they did not contend that the term `funds' was vague "only as it applied in these indictments."<sup>20</sup> Although the appellants argued that the money laundering statute was unconstitutional if money laundering could be committed by check, the court of appeals found that the appellants also argued more generally that "dictionaries offer many and divergent definitions of `fund,' which are inconsistent with the types of `funds' enumerated in the statute" and that "the statute is unconstitutionally vague because it denies fair notice that it criminalizes conduct not within the enumerated classes of `funds.'"²¹ Second, the court of appeals concluded that, even if some of the appellants' complaints could be characterized as raising an "as applied" challenge, resolution of those complaints was necessary to resolving the facial challenge at issue on appeal.²² In support of this conclusion, the court relied upon a statement by the Supreme Court in Hoffman Estates v. Flipside, Hoffman Estates Inc.,²³ that in analyzing a facial overbreadth or vagueness challenge, "a court should ... examine the complainant's conduct before analyzing other hypothetical applications of the law."²⁴

In a dissent to the refusal to hear the case en banc,²⁵ Justice Henson criticized the court of appeals panel's opinion as "overbroad and rife with dicta."²⁶ She believed that the panel, in concluding that the money laundering statute did not apply to checks, had reached the merits of an "as applied" challenge that was not properly before the court.²⁷ She characterized the appellants' challenge as an "as applied" challenge "in sheep's clothing" because "the State's interpretation of the statute must be correct in order for their vagueness challenge to succeed."²⁸ Justice Henson further concluded that, because the appellants conceded that the term "funds" plainly includes cash or currency, a facial challenge must necessarily fail on that basis.²⁹ She also observed that two Dallas Court of Appeals cases had upheld the sufficiency of the evidence to support money-laundering charges based on transactions involving checks³⁰ and that the federal money laundering statute "clearly criminalizes the laundering of checks."³¹ Justice Henson also criticized the panel's application of the principle of ejusdem generis and the conclusions drawn from the 2005 amendments to the money laundering statute.³²

In a dissent to the overruling of the State's motion for reconsideration en banc,³³ Justice Patterson also argued that the court of appeals panel had ruled on an "as applied" vagueness challenge that was not properly before it.³⁴ In her view, the money laundering indictments merely alleged the $190,000 check as the method of laundering the funds, but the actual funds were the corporate contributions, which may or may not have consisted of checks.³⁵ Because a trial had not occurred, in which evidence could have been elicited as to the exact form of the corporate contributions, Justice Patterson concluded that a ruling on the appellants' vagueness challenge was...