HATTIESBURG, MS (WDAM) - Hub City pastor Kenneth Fairley was indicted in March 2016 on six federal charges related to defrauding the U.S. government.
On Tuesday, Fairley's attorney, Sanford Knott, filed a motion asking to dismiss counts four though seven, pertaining to money laundering in his indictment.
However, Fairley is only indicted on six counts in the indictment, not including count seven, which only pertains to co-defendant Artie Fletcher.
- Count 1 –Conspiracy to defraud the United States
- Count 2 and 3 –Theft of government money
- Count 4 – Conspiracy to commit money laundering
- Count 5 and 6 –Engaging in monetary transaction
"Defendant Kenneth Fairley, Sr., through undersigned counsel, respectfully moves this Court to dismiss Counts Four, Five, Six and Seven of the pending indictment," according to court documents filed by Knott.
The motion claimed that counts five and six of the indictment are "fatally flawed because the indicted counts do not allege an essential element of money laundering, specifically proceeds derived from a specified unlawful activity."
According to the motion, counts five and six fail to identify any proceeds from a completed, substantive crime.
"Rather the government alleges that defendant Fairley violated Section 1957 when the defendant deposited checks from the Department of Housing and Urban Development," according to the motion. "But these checks that were deposited are the same checks that are the basis of the specified unlawful activity in counts two and three."
The motion details that the amounts in counts two and three are the same dates as counts two and three, and the funds allegedly misappropriated in counts two and three were not in control of the defendant until the checks are deposited.
"Until the checks were deposited and funds were available in the account, the substantive offense of embezzlement of government funds was not complete, the funds were not in the control of the defendant and the funds are not proceeds that subsequently can be laundered," according to the motion.
Another part of the motion details that counts four, five, six and seven of the indictment are fatally flawed because the indicted counts violate the merger principle and the statutory sense of congress declaration.
"As a separate basis for dismissal, this court should dismiss counts five, six, and seven because there is not a clear delineation from the financial crimes alleged in counts one, two and three and the money laundering crimes alleged in counts four, five, six, and seven," according to the motion.
The motion goes on to detail that the IRS Special Agent who testified before the grand jury regarding the definition of money laundering was not accurate in his testimony.
"Count four fails because there is no evidence that the defendants intend to promote ongoing activity or conceal the proceeds," according to the motion.
The motion claimed that count four is drafted in a manner that is difficult to understand the government's allegation.
"Defendant Kenneth Fairly, Sr. respectfully moves this court to dismiss the money laundering allegations," according to the motion. "These counts contain legally insufficient allegations that fail to allege critical elements…"
The motion was dismissed on an order by District Judge Keith Starrett late Wednesday afternoon.
"The amended trial order in this case set the dispositive motion deadline for June 2, 2016.
The trial date in the amended trial order was set for June 12, 2016.
"On June 7, 2016, the court granted a continue of the trial date until Sept. 6, 2016. The dispositive motion deadline remained June 2, 2016," according to District Judge Keith Starrett.
The order details that a written motion must be served at least seven days before trial, which would have made the motion due on Aug. 30, 2016.
"By all reckoning, then, the motion to dismiss is untimely. Because defendant has not shown good cause as to why his untimely motion should be considered by the court, it will be denied," according to Starrett.
Fairley and Fletcher's trial is still set to start Sept. 6 at 9 a.m.