Monday, December 22, 2008

Judge Cooke grants Ben Kuehne's motion to dismiss Count 1

FOR THOSE OF YOU LOOKING FOR THE POST ABOUT THE APPELLATE ARGUMENT, CLICK HERE. (The WSJ Blog and others have mistakenly linked to this old post).

Huge news during this holiday week. Big props to Judge Cooke for doing the right thing and for authoring a beautifully written 13-page order. I earlier had covered the oral argument of the motion hearing here. The issue as I explained then was:

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 found that Ben Kuehne could not be prosecuted because the funds were for legitimate legal services:

The Indictment states that the Defendants, including Velez and Saldarriaga conducted or caused to be conducted a wire transfer to the Ochoa criminal defense team immediately after each of the first four Opinion Letters. Indictment, ¶9. The purpose and object of the conspiracy in Count One was for the purpose of paying legal fees. Indictment, ¶38. Only fees for legitimate legal services are alleged in Count One. The language in the exemption does not require that he transactions involve only the client and the attorney. The statute exempts “any transaction.”

Judge Cooke makes clear that her Order does not provide blanket protection for money laundering by lawyers:

The dismissal of Count One of the Indictment does not prevent the Government from properly prosecuting attorneys for money laundering related crimes, nor does it totally negate criminal liability for an individual who may conspire to launder tainted funds to pay legal fees. The government’s concern that application of the § 1957 exemption would hinder or bar prosecution of anyone who had contact with tainted funds that were eventually used to pay criminal defense fees is unfounded. The Indictment, in Counts 2 through 6, also charges Defendants under 18 U.S.C. § 1956 with money laundering concealment conspiracy and
concealment money laundering. There is no exemption contained in § 1956 for transactions ecessary to preserve a person’s right to representation as guaranteed by the Sixth Amendment to the Constitution. None of these Defendants have moved to dismiss Counts 2 through 6. For good reason. Accepting the allegations in the Indictment as true, as required at this juncture, the crimes are appropriately plead and any further determination of the charges should be made on a Rule 29 motion.


This is a huge and well-deserved victory for Ben. Congrats. There are still a number of counts left in the indictment, but the government's case is more in tatters right now. It should seriously consider dismissing the entire indictment at this point and moving on. (And yes, I am biased both because I am friends with Ben and because I am co-counsel for the National Association of Criminal Defense Lawyers who filed a brief in support of this motion).

10 comments:

South Florida Lawyers said...

Great news! Congrats all around.

I take it the gov will appeal, and the review would be de novo?

Anonymous said...

The prosecutors dismissing the indictment would require courage on the part of the Justice Department....

Coming up....trial.

Ed Williams said...

I tried to get the US to not charge or to dismiss on many clients over the years. The fact that the client was a "friend" of mine and allegedly a "nice guy" worked only once. The bastard client then proceeded to forget the blank check I was due, and never adequately thanked me otherwise. The moral of the story -- don't be friends with attorneys.

Despite the weaknesses in reasoning of the judge's order, if the government appeals, dismissal should be affirmed on the basis of the wording of the indictment. Otherwise, the 11 Circuit precedent is not favorable to Mr. Bow Tie. Affirmative defense issue and ML law the 11th tends to be a bit overreaching.

Phil Reizenstein said...

I have long admired Ben and have felt terribly saddened that he was burdened with this case. However, like the true gentleman and champion that he is, he has continued to conduct himself above reproach in public. No handwringing - nothing but class. All the more reason to admire him even more.

My wife Jackie and I are thrilled that especially at this time of year, Judge Cooke's decision has brought some good news. I hope this leads to a total dismissal of charges.

Anonymous said...

I would not describe the opinion as "beautifully written." Frankly, it is a little rough, and it has really bad, inconsistent Blue Booking. It is the kind of sloppy written work product that you wouldn't expect from a judge opining on such an important issue. But then, again, I wouldn't expect that to get in the way of David heaping praise on it.

Anonymous said...

The Government's position that the exception for legal services no longer exists is far overreaching and irresponisble. I hope the Gov. takes this up on appeal so that argument can be rejected by the 11th Cir., and we won't have to be bothered by it anymore. The Gov. made the same argument 7 or 8 years ago in the Ferguson case that Judge Cooke cites heavily. It was rejected roundly there as well, but absent appellate authority the DOJ keeps making it.

Valentina said...

Judge Cooke is the BEST! And congrats to Ben, who is totally undeserving of this defective prosecution.

Anonymous said...

before we pat Ben on his back, we should all be aware that Judge Cooke has been reversed several times by the 11th circuit Court. Right David!

Denny Crane said...

Read the parties' papers, NACDL brief, and the judge's opinion. None makes any academic sense. That is, I think, called nonsense. Passing ships in the night with no lights.

DENNY CRANE

"Tarkoff's Legal Secretary" said...

Kudos to NACDL for getting involved. Regardless of what happens on an interlocutory appeal, this at least demonstrates that Mr. Kuehne stands before an impartial bench. That should translate to a court that will actually allow exculpatory facts to be presented to the jury come trial, which should maintain Mr. Kuehne's hopeful position.

"We can talk about having coffee in the lobby, but don't ever pass through those doors [to the courtroom] without realizing you are at war."

---Michael H. Tarkoff