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).

Breaking!

Judge Cooke granted Ben Kuehne's motion to dismiss Count 1. More to follow soon.

Sent via BlackBerry by AT&T

Props to Judge Zloch

The Green Bag (a journal dedicated to "good writing about the law") announced its annual list of outstanding legal writing for the past year. A order from the Southern District was noted as recommended reading. See In re Beck, 526 F.Supp.2d 1291 (S.D. Fla 2007) (written by Judge Zloch). Here is a link to the order and a link to the list of honorees. We wrote about another Judge Zloch order last week that caught our attention.

Verdict in goggle case

Guilty on 3 conspiracy counts; not guilty on 3 substantive counts. A clear compromise...

I wonder how the prosecutor feels about this verdict against a pro-se woman who speaks English as a third language.... He did get a conviction. But he also lost 3 counts...

What a weird case. She comes to the U.S. voluntarily even though she never would have been extradited. Then she pleads guilty to a credit-time served deal. But the prosecutor asks to correct the sentence and Judge Cohn resentences her to 29 months. Then, she withdraws her plea because she understood that she would be sentenced to time-served. So trial it is.... And of course the jury hangs. She then decides to proceed pro-se, and she keeps the jury out for two days and is found not guilty on 3 counts. How bizarre...

Here is Vanessa Blum's coverage of the case. And Curt Anderson has an article for the AP here: Gholikhan said she would appeal and insisted the she is innocent. "I won't give up. It's OK. God is here," Gholikhan said in a brief courtroom interview. She appeared relieved that the trial was over.

Busy!

Each one of these items probably deserves its own post, but I've fallen behind on interesting stories and am going to include them all here in one post. Thanks to all the tipsters and commenters who have been sending me juicy items.

1. The jury is still out in the night vision goggle case. The prosecution gave a 90 minute closing today and Sharhazad Gholikhan gave a 90 minute closing in her own defense. The jury went out around lunchtime and were discharged for the day at 5pm. Vanessa Blum has the details here. Some of my favorite lines from her closing: She said her only crime was a "conspiracy of marriage." She explained she came to the U.S. voluntarily because she was innocent: "I came. Why? Because I'm clean."

2. No COLA increase for federal judges. Tony Mauro at BLT writes it up here. (HT: Captain). “Wrong time. Wrong place,” Sen. Claire McCaskill, (D-Mo.) exclaimed on the Senate floor Dec. 11. “We have families all over this nation that are scared today, that aren’t buying Christmas presents. Federal judges get lifetime appointments and they never take a dime’s cut in pay. They die with the same salary they have today.” To counter: Federal judges are the only federal employees who will begin 2009 without a COLA. James Duff, director of the Administrative Office of the U.S. Courts, acknowledged that these are “challenging times” for the economy, but he added in a statement, “That is no reason for Congress to treat federal judges differently than all other federal employees, including members of Congress.” Our prior coverage on this subject is here.

3. Judge Zloch wrote an 82-page blockbuster order finding the Sex Offender and Registration Act (SORNA), which is part of the Adam Walsh Act, unconstitutional. Here's the Order. It's worth a read. It's hard to summarize such a lengthy opinion here, but it basically says that the Act violates the commerce clause because there is no link with registration and commerce. Here's the conclusion:

While providing Congress with the power to regulate sex
offenders in the manner attempted by SORNA would admittedly aid
Congress in its goal to protect the public, it is not has not among
Congress’s enumerated powers. Congress has never been accorded the
general police power it has sought to exercise in SORNA. See
Lopez, 514 U.S. 596-98 (Thomas, J., concurring); Cohens v.
Virginia, 19 U.S. (6 Wheat.) at 426. Cases are legion that note
that the federal government does not have the residual power held
by the states. E.g., Lopez, 514 U.S. at 584-602 (Thomas, J.,
concurring).
With statutes like those at issue here, Congress’s desire to
aid in the protection of society against sexual predators is
understandable and laudable. However, “the powers of the
legislature are defined, and limited; and that those limits may not
be mistaken, or forgotten, the constitution is written.” Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 175 (1803). Specifically, the
grant of power made under the Commerce Clause is limited. Lopez,
514 U.S. at 552-553 (citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) at
189-95). Therefore, the statutes challenged herein cannot be
upheld. Section 16913 transgresses entirely the limits set on

Congress by the Commerce Clause. It cannot be defended except by
adulteration of the text of the Constitution and controlling
caselaw. Section 2250 also exceeds that grant of power made to
Congress under the Commerce Clause. It is in no way a regulation
of persons in interstate commerce but an exertion of a general
police power through an illusory and impermissible jurisdictional
nexus. Thus, the Court declares that § 16913 is unconstitutional
in that Congress lacks the power to enact the same under the
Commerce Clause. Because an unconstitutional law is no law at all,
Defendant Edward Myers shall go hence without day.

And for you grammar nerds, check out footnote one of the opinion:

Many courts and commentators, especially in the passages
quoted herein, render the possessive of “Congress” as “Congress’.”
For clarity as to the number of congresses being referred to and
staying faithful to the traditional rules of grammar, the Court
will employ the natural construction “Congress’s” when referring to
the possessive singular of our national legislature. See William
Strunk, Jr. and E.B. White, The Elements of Style 1 (4th ed. 2000).

4. The Broward chapter of the Federal Bar is big time. Check out its inaugural 16-page newsletter. The most fun part is the interview with Chief Judge Moreno. His first job in college: working as a janitor at Notre Dame during summers. Favorite Movies: Rudy and Remember the Titans. Favorite Songs: Notre Dame Victory March and God Bless America. (I was sort of with you on the movies, Chief, but those are really your favorite songs?) Favorite Hobbies: Golf, Travel, and Food.

Tons of other fun stuff in the interview. Some good quotes: "When you're a judge you rule your own fiefdom, as Chief you are accountable for the whole kingdom." Courthouses should be like "secular temples" to inspire respect in the community just as cathedrals were built on a grand scale to capture the feeling of a divine presence. "I love jurors and lawyers, and the back and forth of trial and legal arguments."

5. Speaking of Judge Moreno, he sentenced Dr. Ana Alvarez-Jacinto to 30 years in prison today, 8 years more than the sentence recommended by federal prosecutors in this medicare fraud case. Jay Weaver's article is here.

"I thought I loved him, but now, when I look back, I feared him so much. I was his slave."

That was Sharhazad Mir Gholikhan during her 7 hours of direct testimony over the last two days before Judge Cohn. She has been representing herself during this retrial (Bill Barzee represented her during the first trial and has been standby counsel in this case. He directed her.) The prosecutor only had 5 minutes of cross after 7 hours of direct. Smart move? We're about to find out. Closing arguments are this morning.

Here's Vanessa Blum's coverage of this fascinating trial:

As an Iranian woman, Sharhazad Mir Gholikhan says she was required to wear a head covering, forced to marry a man she barely knew and forbidden to travel without her husband's consent.But in the Fort Lauderdale federal courtroom where Gholikhan is on trial, the 31-year-old mother is making her own decisions and acting as her own attorney.Gholikhan's defense to charges she tried to export American-made night vision goggles to Iran: that she had no choice but to obey the orders of her former husband, who dragged her into the illegal plot."Once you get married in Iran, your husband has control over you," she told the American jury deciding her case.
The jury is expected to begin deliberating today. If convicted, she could face more than 10 years in prison.

What can a prosecutor say to the media?

Rumpole takes state prosecutor David Waksman to task for his comments to the press after a not guilty by reason of insanity verdict, which raises the question about what prosecutors can say to the press. This NY Times editorial addresses the recent comments by Patrick Fitzgerald in the Gov. Blago fiasco. It starts out laying out the basic standards for prosecutors:

Prosecutors have a special place in our criminal justice system. The American Bar Association’s Model Rules of Professional Conduct note that a “prosecutor has the responsibility of a minister of justice and not simply that of an advocate,” and therefore owes a “special duty” to the court.
The United States Court of Appeals for the Ninth Circuit has emphasized that “a prosecutor has a special duty commensurate with a prosecutor’s unique power, to assure that defendants receive fair trials.” Another United States Court of Appeals has observed that “prosecutors sometimes forget that the prosecutor’s special duty is not to convict, but to secure justice.”

Does this apply to high profile cases?

There is no question that these principles extend to public statements, particularly in high-profile cases that engender public interest and press coverage. The obvious risk is that a prosecutor’s statements outside the courtroom, particularly statements that pillory a defendant, will taint the pool of prospective jurors and make it less likely that a defendant can receive a fair trial. For this reason, and also because it is fundamentally fair to do so, courts limit the prerogatives of lawyers, particularly prosecutors, to make public statements about pending cases.

So what did Fitzgerald say?

Against this backdrop, it is hard to feel comfortable with Mr. Fitzgerald’s remarks in announcing the charges that Mr. Blagojevich’s conduct amounted to a “political corruption crime spree” and “would make Lincoln roll over in his grave,” that “the breadth of corruption laid out in these charges is staggering,” that Mr. Blagojevich “put a ‘for sale’ sign on the naming of a United States senator” and that his conduct was “cynical” and “appalling” and has “taken us to a truly new low.”

To conclude:

This is not to express an opinion, one way or another, about Mr. Blagojevich’s guilt or innocence. But he is entitled to a fair trial, and it is hard to escape the conclusion that such a trial has become less likely as a result of these public remarks by this otherwise very competent and effective prosecutor.
In 1935, in a case read by virtually every law student since, the Supreme Court issued an eloquent statement of the special role of prosecutors:
“The United States attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”
As able a courtroom lawyer as Mr. Fitzgerald is, he — indeed, all prosecutors — might consider limiting pejorative characterizations of a defendant to open court, after the jury is in the box.

The Waksman comments are less problematic because they were after the jury reached its verdict. And Rumpole's commentors raise some pretty good defenses for Waskman. But can anyone defend Fitzgerald's comments?

!!!!

He's got pretty good reflexes!