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.