Happy Thanksgiving

We have a lot to be thankful for in this District... Discuss in the comments.

See you all Monday.

In the meantime, check out this story on the Broward Blog about Debbie Wasserman Schultz as the foreperson on this not guilty state court jury. (Hat Tip: Rumpole).

Ben Kuehne Motions Hearing before Judge Cooke

On behalf of the National Association of Criminal Defense Lawyers, I attended the hearing before Judge Cooke today dealing with the motion to dismiss Count I of the indictment, the conspiracy to violate the "criminally derived property" statute, 18 U.S.C. section 1957. Here's a brief synopsis of what occurred (and yes, I am obviously biased as NACDL filed a brief in support of the motion to dismiss).


The issue on Count I is whether an attorney (Ben Kuehne) can be prosecuted under 1957 for receiving legal fees in light of 1957(f)(1)'s exception for "transaction[s] necessary to preserve a person's right to representation as guaranteed by the Sixth Amendment to the Constitution."

Judge Cooke started the hearing by asking the prosecutor to present his argument on the defense motion to dismiss because she wanted to know if he was really taking the position that 1957(f) was meaningless. The prosecutor answered YES! The prosecutor took the position that as a matter of law the motion should be denied because 1957(f) does not afford any protection to lawyers. He then argued that as a matter of fact, Kuehne's actions were not "necessary" to represent Ochoa and therefore not covered by the statute. And finally, he argued that if the judge disagreed with 1 & 2, she should at least present the question to a jury because 1956(f) is an affirmative defense.


John Nields then argued for Ben Kuehne. Nields argued that the statutory text is clear and that it must have meaning. He explained that the government could forfeit an attorney's fee if it was tainted, but it could not prosecute him under 1957. Judge Cooke asked what would happen if a defense lawyer participated in a drug transaction and then took a fee to represent the drug dealer. Nields argued that the defense lawyer could be prosecuted for lots of things under that hypo, but not 1957.

Judge Cooke questioned both the prosecution and the defense about the bright-line rule they were proposing. She tested the government theory that 1957(f) offers no protection vs. the defense's position that it affords an attorney absolute protection in a criminal case under 1957 for receiving a legal fee (it does not, for example, protect against forfeiture or a prosecution under a different statute).

Ultimately, the defense position is much more persuasive. Section 1957(f) cannot be meaningless as the prosecution suggests. The prosecution's reading of the statute is an assault on the Sixth Amendment, an assault on criminal defendants, and an assault on criminal defense lawyers. It seeks to chill lawyers from taking legal fees in criminal cases. The prosecution's arguments that (1) it will only prosecute the egregious cases and (2) if it doesn't, a jury will protect the defense bar, offers no comfort. Criminal defense lawyers will be chilled into refusing any fee for the fear of prosecution itself, even if they would likely be acquitted. Kuehne's reputation and standing in the community has suffered by the mere prosecution. He has had to raise money for the defense. He has been indicted in a serious federal case. Criminal defense lawyers shouldn't have to rely on the good graces of the government or a jury to make the right decision because Congress has spoken very clearly on this issue -- defense lawyers shall not be prosecuted for accepting a legal fee. Period.

Roy Black's firm did more in this case to vet the fee than any case in the history of the law -- it spent over $200,000 because it wanted to make sure that it was doing everything correctly. And Black hired the most ethical lawyer in the community to do the vetting, Ben Kuehne.

Count I should be dismissed.

There were lots of other motions being argued, but this is the one of most interest. I hope this post generates some discussion.

A few news and notes

1. Ben Kuehne's motions hearing is this afternoon at 1:30.

2. The Pine Crest swim coach didn't get bond.

3. A federal agent was indicted for taking kickbacks.

4. Drew Brees won me my fantasy football game last night and looks like he is going to break Dan Marino's record. He does have a pretty tough schedule the rest of the way though.

5. Dancing with the Stars has jumped the shark.

Bench & Bar pictures

Judge Jordan and Judge Cooke

Judge Dimitrouleas and Judge Cohn

The dining room

A blurry picture of the criminal law magistrate panel

Judge Moreno (my phone's zoom isn't so powerful).

Live blogging the federal bench and bar conference

Most of you won't be reading this right now because you all are here at the Hollywood Diplomat. This isn't the most exciting way to spend my birthday, but what are you gonna do?

All the judges and magistrates are here. And there are over 500 lawyers here. Pretty unbelievable.

The morning panels were interesting. I was only at the criminal law panels, which were lively and engaging. I hear the civil panels were also good.

Judge Fay is about to do the lunchtime talk. More soon.
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Ben Kuehne event

Just a quick post about the Ben Kuehne fundraiser tonight at Christabelle's Quarter in the Grove. It was extremely well-attended -- of course there were many criminal defense lawyers there, but there were also many civil lawyers and even lawyers from out-of-town, from as far as Pennsylvania. It was packed and it was a nice tribute to Ben. The buzz: will the new administration dump this ridiculous case?

(Full disclosure -- I filed the NACDL amicus brief in favor of the motion to dismiss the case)

Pine Crest swimming coach in huge trouble

Here's Vanessa Blum's coverage of Fort Lauderdale's swimming coach Roberto Caragol, who is accused of having sex with minors and trading porn pictures. Here's the criminal complaint.

Jay Weaver wins award

Well dear readers, I am in the Atlanta airport waiting to come back to Miami after arguing in the 11th Circuit before Judges Carnes, Tjoflat, and Hood. It was an interesting argument concerning venue and multi-object conspiracies. I am sure you all are fascinated.

In any event, here is a link to an article about Jay Weaver's award for his Medicare coverage. Congrats to Jay. Hat tip to BT.

I hope to see you all tomorrow at Ben Kuehne's fundraiser and on Friday at the bench and bar conference.

Justice Stevens and Judge Gonzalez

U.S. Supreme Court Justice John Paul Stevens and District Judge Jose Gonzalez spoke yesterday at the University of Florida. Here's the UF newspaper article about the event:

Associate Justice John Paul Stevens, of the U.S. Supreme Court, and Jose A. Gonzalez Jr., U.S. District Court Judge, agreed on a litany of legal issues at an on–campus discussion Monday.Stevens and Gonzalez gave advice and commented on the legal system to about 1,000 people at the Phillips Center for the Performing Arts in the inaugural event of the Marshall Criser Distinguished Lecture Series.Two UF law professors and a third–year law student asked the two men questions submitted by law students during the “conversation.”
Stevens and Gonzalez both agreed that legal opinions have gotten too long, and that it might be influenced by the introduction of computers.“It’s a lot easier to type something up than it is to write it out, especially if you have lousy handwriting,” Stevens said.When Stevens said he was a fan of footnotes, but thought they were optional reading, Larry Dougherty, the third–year law student, interjected.“Justice Stevens, some of our professors here have us under the impression that footnotes are required reading,” he said to laughter from the audience.Sharon E. Rush, one of the two law professors asking questions, assured the audience she still wants her students to read footnotes.Getting a little more serious, Gonzalez talked about the issue of judges’ salaries, saying they are not paid what they are worth.“We’re spending billions of dollars on the war in Iraq, and we can’t afford to compensate a handful of federal judges. That’s crazy,” he said, to perhaps the loudest applause of the conversation.Stevens agreed and complimented Gonzalez on his eloquence.When asked what advice they would give to the law students, Gonzalez joked he would give the same advice he’s given other people: “Don’t sue people that don’t have any money because there’s no future in it.”Stevens advised students to develop a reputation as a person of honor.“Nothing is more important to a lawyer than his word,” he said.In one of the last questions of the event, both judges agreed on which Supreme Court justice in the nation’s history they would speak to if they had the chance: Justice John Marshall.“He was a very interesting man who lived in very interesting times, and he had a very interesting personality,” Gonzalez said.

"We are the red-headed, jug-eared freckle-faced, buck toothed bastard stepchildren of the federal government."

That's Kathy Williams, the Federal Defender of our District, in The Daily Business Review article that covers her and her office here. Another great quote from Kathy in this glowing article: "Your mechanic and your plumber makes more than a CJA lawyer."

She is the best federal defender in the nation so this article is well-deserved. And yes, she is my former boss so I am biased.

Friday news and notes

1. Ellen Podger's wish list for Obama and the next AG on white collar criminal issues.

2. Julie Kay covers Ben Kuehne's fundraiser.

3. Vanessa Blum is all over the federal courts.

4. Jay Weaver is on top of medicare fraud.

5. Lanier Anderson is taking senior status in January. Who is going to take his slot?

6. Justice Scalia is sorry for being mean and wrong.

UBS exec indicted in tax probe

Very interesting case. (Here's the AP and the Daily Business Review) All of the criminal defense lawyers in town were scanning the paper this morning to see who represented defendant Raoul Weil, a top executive at UBS. Weil isn't here in the US, but he hired New York lawyer Aaron R. Marcu from Covington & Burling. Here's the indictment.

I still haven't figured out formatting with this new Blackberry Bold, so I will post more info and the indictment when I get to the office later today. In the meantime, anything going on that you all wanna discuss?

Ben Kuehne

This email invitation is making the rounds. Should be quite an event:

PLEASE JOIN CO-CHAIRS The Honorable Gerald Kogan & Robert Josefsberg

AND HOST COMMITTEE MEMBERS

The Florida Association of Criminal Defense LawyersThe Miami Chapter of the Florida Association of Criminal Defense LawyersRay Abadin, Robert Ader, Frank Angones, Jeffrey S. Bass, David Bogenschutz, Ron Book,Bennett Brummer, Richard Burton, Bob Butterworth, Jennifer Coberly, Kendall Coffey,Hank Coxe, Alan Dimond, Steven Eisenberg, Peggy Fisher, Rick Freedman, Tomas Gamba,Mayor Joseph Geller, Ervin Gonzalez, Jonathan Goodman, Fred Haddad, Larry Handfield, ArturoHernandez, Richard Hersch, Robert Hertzberg, Milton Hirsch, Elizabeth Hitt, Dennis Kainen,Hank Klein, Joe Klock, Thomas Korge, Albert Krieger, John Lazarus, Hector Lombana, BruceLyons, Wallace Magathan, David Markus, Amanda Maxwell, Jon May, Richard Milstein, MichaelMoskowitz, Jorge Mursuli, Pam Perry, Mark Raymond, Bill Richey, David Rothman, FrankRubino, Leonard Sands, Mark Schnapp, Joseph Serota, Richard Sharpstein, Angela Sherrill,John K. Shubin, Lisa Sloat, H.T. Smith, Russell Smith, Ed Strongin,Brian Tannebaum, Rod Vereen, Stanley Wakshlag, Mayor Otis Wallace, Jeffrey Watson

FOR A RECEPTION & FUNDRAISER TO BENEFIT
THE BENEDICT P. KUEHNE, LEGAL DEFENSE FUND
CHRISTABELLE’S QUARTER

3157 Commodore PlazaMiami, Florida 33133THURSDAY, NOVEMBER 20, 20086:00 P.M. – 8:00 P.M.Suggested Contribution of $200.00 Payable to“Benedict P. Kuehne, Legal Defense Fund”If unable to attend, kindly send contribution toShubin & Bass46 S.W. 1st Street, 3rd FloorMiami, Florida 33130R.S.V.P. to Nydia Marrero at305.381.6060 or nmarrero@shubinbass.com Complimentary Valet Parking

Back to blogging

So, for the past month I have been in West Palm Beach, trying a criminal antitrust case before Judge Hurley. The blogging has been sporadic, and I apologize. But I am back and feeling good after hearing those two magic words -- not guilty. What a relief! (Congrats to my co-counsel, David Gerger and Jennifer Johnston, and to the lawyers for the co-defendant, Paul Calli and Mike Pasano).

This was my first trial before Judge Hurley in West Palm Beach. What a pleasure. He really enjoys being a judge and delving into legal issues. The jurors loved him and he made the case easy to try for both parties.

The prosecutors were from DOJ in Washington, DC. They were very fine attorneys, who were professional and courteous before, during and after the case.

The jurors were great too -- they spoke to us in the parking lot and congratulated us and hugged the client. I wish I could have this client for all of my cases....

All in all, it was a wonderful experience. Back to blogging.

Don't make me angry. You wouldn't like me when I'm angry.

Ah, those spell checkers... Today the Herald's op-ed pages support Judge "Hulk's" decision in the Joe Cool case. Judge Hulk is discussed throughout the op-ed, which I agree with wholeheartedly... Here's the intro:

Better late than never. This is the best that can be said about U.S. District Judge Paul Hulk's decision last week to throw out four guilty verdicts against a Hialeah security guard whose gun was used in the murders of a Miami Beach charter-boat captain and crew. It's a pity that Judge Hulk didn't realize the mistake earlier -- during trial -- when it could have spared the victims' grief-stricken family members another round of trauma.
Relatives of charter-boat captain Jake Branam, his wife and two crew members were initially relieved with the guilty verdicts against Guillermo Zarabozo, 20. The jury had convicted Zarabozo of providing one of the guns used to kill the captain and crew of the charter boat Joe Cool. However, the jury was deadlocked on 12 other charges against Zarabozo alleging conspiracy, kidnapping and murder. Zarabozo faces a retrial on those charges on Jan. 20, and the dismissed weapons charges should be added to that case.
Jury sought clarification
The jury obviously was confused in its deliberations. It sent a note to Judge Hulk asking for clarification of whether Zarabozo would ''automatically'' be considered a participant in the kidnappings and murders if he brought the gun aboard the boat not knowing that crimes would be committed. The judge didn't clarify the point, and sent them back to deliberate.
That was a mistake, Judge Hulk said last week. He acknowledged that he should have told the jurors they could find Zarabozo guilty of the gun charges only if they also found him liable for the kidnappings or deaths. It is rare for a judge to publicly admit to a trial error, especially after a verdict has been rendered. For this, Judge Hulk deserves credit. It took courage and conviction for him to do so.

Everyone is flattered

Here is the Daily Business Review article discussing potential replacements for Alex Acosta now that Obama has been elected. All the candidates say that they are flattered to be considered. It's a very good slate of candidates, including Jackie Becerra and Curt Miner -- two smart young and dynamic lawyers that I have tried cases against.

But on a personal note, I am very sad that Acosta may be replaced. He has been a wonderful US Attorney. If he was to get a grade, it would clearly be an A. He is very smart, and has always been dedicated to doing the right thing. I can't say enough about how great he has been.

I know I am not alone in saying this.
He has won the support of his own office, the defense bar, and the judges. I have spoken to many prosecutors and defense lawyers who say that the only thing bad about an Obama presidency is having to replace Acosta. Well, perhaps Obama will surprise us and reach across the aisle, as he is known to do, and keep Acosta. If not, he's got a fine list to choose from.

Sorry for the formatting, but I have a new blackberry and I am still figuring it out.

http://www.dailybusinessreview.com/news.html?news_id=51603

The list includes newly minted Florida state Sen. Dan Gelber, a partner at Akerman Senterfitt in Miami; Greenberg Traurig litigators Mark Schnapp and Jackie Becerra in Miami; Bruce Udolf, a white-collar specialist at Berger Singerman in Fort Lauderdale; Curtis Miner, a partner at Colson Hicks & Eidson in Coral Gables and Miami-Dade Circuit Judge Daryl Trawick.
?
At least two people from the list are already canvassing for support, a source said.
?
A possible internal candidate would be Jeff Sloman, Acosta's top assistant. Sloman is likely to take over as interim U.S. attorney if Acosta decides to step down before a replacement is named. Guy Lewis stepped from the first assistant slot to acting U.S. attorney in 2000 when Tom Scott resigned after George W. Bush's victory and stayed until August 2002 when Marcos Jimenez was appointed.

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Miami Herald : South Florida ''Legal Legends'' honored at awards banquet

A wonderful list of honorees from the 11th Circuit Historical Society.

The one glaring omission is my former boss, Judge Edward B. Davis.

Here's the Herald article and the list of honorees:

http://m.miamiherald.com/mh/db_8477/contentdetail.htm?contentguid=rnerGm0N&full=true#display

Rosemary Barkett -- The first woman to serve on Florida's Supreme Court.

  Bennett Brummer -- Retiring Miami-Dade County Public Defender.

 Manuel Crespo (posthumously) -- First Cuban-American elected to serve on the Florida Bar Board of Governors.

 Arthur England, Jr. -- Former Chief Justice of the Florida Supreme Court.

  Peter Fay -- A federal appellate judge.

 Robert Floyd (posthumously) -- Miami's youngest mayor (elected at age 29).

 Seymour Gelber -- Former mayor of Miami Beach, 11th Circuit Court Judge  and author.

 Mario Goderich -- A founding member and the first president of the Cuban American Bar Association.

 Minnette Massey -- When named Acting Dean of the UM Law School she was one of two women in the country to serve in this position.

  H.T. Smith -- Attorney and one of the leaders of the City of Miami boycott.

 Osvaldo N. Soto -- Cuban civil rights attorney and former president of the Cuban-American Bar Association.

 Gerald Wetherington -- Served as chief Judge of the 11th Circuit Court for 10 years.

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Judge Huck tosses gun verdict in Joe Cool slayings

Breaking news!

That's clearly the right result, especially if the prosecution was going to retry the other counts.

Now, will there be an appeal before the retrial is scheduled?

Obama

Election Day

It's that time of year again.

Many federal judges aren't conducting trials today so that jurors can vote.

I always ask the question about judicial elections vs. appointments. Who has the better system? In the judicial races today, what do you know about the candidates? What does the general public know? Are we making an informed decision?

You all know my view -- the federal appointment system, which has its own flaws, is the better way to select judges.

Thoughts?

Federal Bar Luncheon

Celeste Higgins, the new pres of the local Federal Bar Association, asked me to let you all know that Beth Wilkinson is the first luncheon speaker on Wednesday November 12. Here's the info:

Beth Wilkinson is former General Counsel of Fannie Mae. Prior to thatposition, she was partner and co-chair of the White Collar practice groupat Latham and Watkins and prosecutor in the Timothy McVeigh and TerryNichols Oklahoma City bombing trials. She was a special AUSA in Miami in 1990-1991 who worked with the prosecution of Noriega. She will, no doubt,give us a behind the scenes perspective on the current financial crisis andthe other major legal events she has seen and participated in since leavingthe Southern District of Florida. Furthermore, her unique perspective as aprosecutor, defense attorney and general counsel provides a greatopportunity to hear what she thinks the biggest issues will be for attorneys and judges as the financial crisis unfolds and a new administration takes over on January 20, 2009.The luncheon will be held at the Bankers' Club located at One BiscayneTower on Wednesday, November 12th promptly at 12 noon. Reservations can bemade by calling Lourdes Fernandez, Law Clerk to Judge Dube at (305)523-5771. The cost is $35 per person.

Conviction in suitcase-gate

After extremely lengthy deliberations, the jury convicted Franklin Duran today. Congratulations to Tom Mulvihill. Here's the intro to Curt Anderson's AP article:

A federal jury convicted a wealthy Venezuelan Monday of acting as an illegal foreign agent who came to the U.S. to cover up a Latin American political scandal involving a cash-stuffed suitcase smuggled into Argentina.Jurors deliberated seven days -- at one point indicating they were hopelessly deadlocked -- before finding Franklin Duran, 41, guilty of foreign agent and conspiracy charges. He faces up to 15 years in prison.Duran, dressed in a dark suit, stared straight ahead and showed no emotion when the verdict was announced. U.S. District Judge Joan Lenard set sentencing for Jan. 12.Prosecutors said during the eight-week trial that Duran and other South American men came to Miami on orders of Venezuelan President Hugo Chavez to ensure the silence of a man who carried a suitcase filled with $800,000 into Argentina in 2007. The U.S. said the money was a secret political donation to the campaign of Argentina's president.
Duran attorney Ed Shohat contended his client was entrapped by the FBI and came to Miami only to help a friend and protect business interests. Shohat vowed Monday to appeal, calling the trial ``a political circus'' orchestrated by the U.S. to embarrass Chavez and his allies.``Franklin Duran is a pawn of the U.S. government,'' Shohat said. ``We're going to continue this fight.''Assistant U.S. Attorney Thomas Mulvihill rejected that description of the case, which has been the subject of relentless media coverage across Latin America.``This was not a political trial. We don't engage in those,'' Mulvihill said.

Swarms of lawyers...

... at a polling place near you. (Via Sun-Sentinel)

I just like the picture.

Attorneys Brian Seymour, left, and Gerald Richman outside the old Palm Beach County courthouse in downtown West Palm Beach. Seymour will represent the Republican party on election day and Richman will represent the Democrats. (Sun Sentinel/Scott Fisher / October 28, 2008)