MEMPHIS, Tenn — Former Tennessee State Senator Brian Kelsey has filed a notice to appeal his plea deal that led to a prison sentence on federal campaign finance charges, claiming the government breached the plea agreement.
Kelsey was sentenced Aug. 11, 2023, to 21 months in prison after he unsuccessfully tried to take back his guilty plea on charges and initially described the case as a “political witch hunt.”
The case centered on his attempts to funnel campaign money from his legislative seat toward supporting his failed 2016 congressional bid. He won't have to begin his prison time until October, but if successful, this latest motion could keep him out of prison while his appeal goes through the courts.
The latest motion for appeal
In a motion asking for bail pending the appeal, Kelsey claims the government breached his plea agreement by arguing for an obstruction of justice enhancement at his sentencing. The motion says the government was not allowed to argue for such an enhancement under the agreement.
The motion claims federal prosecutors knew they could not argue for the enhancement, but did so anyway by introducing a “newly concocted theory” and finding a “loophole,” then “lying in wait” for specific questions during the sentencing hearing.
The motion claims because of the breach, “Kelsey did not receive the full benefit of his bargain, and his constitutional rights were violated.” It says because of the breach, Kelsey is entitled to bail while his appeal is being considered. The motion also claims because of the breach, Kelsey can elect to withdraw his plea, resulting in a “reversal of his conviction.”
As for the prosecutors' response, in a motion on the presentencing report for Kelsey, the government argues that if the court asks about Kelsey’s post-plea conduct, the government can give an assessment. It claims Kelsey “on multiple occasions, denied responsibility for any of the offenses to which he previously pleaded guilty,” and the Probation Office determined a downward adjustment on the obstruction charge was unwarranted.
The original plea deal and sentencing
U.S. Judge Waverly Crenshaw handed down the 21-month sentence after the former Memphis-area lawmaker argued in March that he should be allowed to go back on his November 2022 guilty plea because he entered it with an “unsure heart and a confused mind” due to events in his personal life — his father had terminal pancreatic cancer, then died in February, and he and his wife were caring for their twin sons born in September. Crenshaw denied the change of plea in May.
Before that, Kelsey had pleaded not guilty — often saying he was being targeted by Democrats. But he changed his mind shortly after his co-defendant, Nashville social club owner Joshua Smith, pleaded guilty to one count under a deal that required him to “cooperate fully and truthfully” with federal authorities. Smith was sentenced to five years of probation.
In late July, federal prosecutors also accused Kelsey of intentionally delaying his sentencing after he switched up his legal defense team.
“I’m truly sorry for the actions that led me here today,” Kelsey told the court during the sentencing hearing. “I knew I was taking a risk and yet I did it anyway and in doing so, I broke the law.”
The indictment and charges
In October 2021, a federal grand jury indicted Kelsey and Smith, who owns The Standard club in Nashville, on several counts each. The indictment alleged that Kelsey, Smith and others violated campaign finance laws by illegally concealing the transfer of $91,000 from Kelsey’s state Senate campaign committee and $25,000 from a nonprofit that advocated legal justice issues — to a national political organization, the American Conservative Union, to fund advertisements urging support of Kelsey’s congressional campaign.
Prosecutors alleged that Kelsey and others caused the organization to make illegal and excessive campaign contributions to Kelsey by coordinating on advertisements, and that they caused the nonprofit to file false reports to the Federal Election Commission.
Two co-conspirators were also involved, including former Tennessee Rep. Jeremy Durham, a Republican, who was expelled in 2016 on multiple sexual misconduct allegations. Durham cooperated with federal officials in Kelsey's case and has not faced any charges.
Kelsey's attorney had argued that since Durham wasn't facing prison time, then neither should their client. Crenshaw disagreed by repeatedly pointing out that Durham and others agreed to work with federal officials early on.
Kelsey, a 45-year-old attorney from Germantown, was first elected to the General Assembly in 2004 as a state representative. He was later elected to the state Senate in 2009.
Due to his conviction, Kelsey is banned from running for state office in Tennessee and has been stripped of his law license. He also been ordered to surrender any guns from his possession.
The Associated Press contributed to this report.
