The U.S. Attorney’s Office and the defense for Marc G. Rosenthal continue to go back and forth over the legality of the federal charges against the Austin attorney.
Rosenthal faces a 13-count indictment stemming from what prosecutors allege was his role in the racketeering scheme involving former 404th state District Judge Abel C. Limas.
Defense attorney Ernesto Gamez Jr. argued Wednesday that charges should be dropped against his client because Limas has pleaded guilty to those charges.
“The government wants its cake and eat it too,” Gamez told U.S. District Judge Andrew S. Hanen at a hearing that lasted nearly three hours in the U.S. District Court, Southern District of Texas.
On the other hand, Assistant U.S. Attorney Michael J. Wynne countered that the defense’s move “betrays a misunderstanding” of the law.
Hanen said he would rule on the defense’s motion soon.
As part of the indictment from August 2011, Rosenthal is charged with racketeering conspiracy, mail fraud, aiding and abetting, tampering with proceedings, tampering with a witness, and extortion. The indictment also charges that Rosenthal’s law firm Rosenthal & Watson was a RICO enterprise. RICO refers to the Racketeer Influenced and Corrupt Organizations Act.
Rosenthal is accused of bribing Limas in return for favorable court rulings. Limas has pleaded guilty to racketeering.
The defense specifically moved that the court dismiss the RICO count and four other counts that allege extortion, aiding and abetting and mail fraud because Limas has pleaded guilty to the same activity.
Gamez argued before Hanen that the conspiracies alleged in Limas’ and Rosenthal’s indictments are at least “overlapping” and that accusations that overlap can not be pursued against his client.
“Mr. Rosenthal cannot be the victim in former Judge Limas’ guilty plea . . . while at the same time be charged in a separate indictment with aiding and abetting this same crime,” Gamez argued in two motions before the court. “Nor can Mr. Rosenthal be the victim in former Judge Limas’ extortion while being the perpetrator in the mail fraud counts.”
Gamez also indicated to the court that the U.S. Attorney’s Office made tactical errors in how it framed the indictment against Rosenthal and also argued that some of the charges leveled against his client would be state misdemeanor offenses and not federal felonies.
The defense contended that law does not allow the U.S. Attorney’s Office to prevail on one set of facts, as it did in Limas’ case, and then take a contrary position on those same facts in a second case.
Wynne countered in his responses to the defense motions that the defense chooses to overlook that the law holds responsible both the public official who accepts the bribe and the individual who pays the bribe.
The federal prosecutor also stated in his responses that it is “absurd” to argue that if the 404th Judicial District Court was a racketeering enterprise, then the Rosenthal & Watson firm could not be one as well.
He also contended that Rosenthal had been an instigator too and had been more than a passive participant.
“Here, the government does not allege that all of Limas’ wrongful conduct and all of Rosenthal’s wrongful conduct fit within one conspiracy count. There are two separate cases, brought under two separate indictments,” Wynne said.
Wynne said in his response that in the present case, “the government seeks punishment of both the corrupt public official and one of the attorneys actively engaged in the corruption, that is, Rosenthal.”