Judge Cooke affirmed for dismissing count against Ben Kuehne

Great news! Here's the opinion by Judge Barkett.

She starts off discussing the plain language:

Section 1957(a) prohibits knowingly engaging or attempting to engage “in a monetary transaction in criminally derived property that is of a value greater than $10,000 and is derived from specified unlawful activity.” 18 U.S.C. § 1957(a). However, the statute exempts “any transaction necessary to preserve a person’s right to representation as guaranteed by the sixth amendment to the Constitution.” 18 U.S.C. § 1957(f)(1). Thus, the plain meaning of the exemption set forth in § 1957(f)(1), when considered in its context, is that transactions involving criminally derived proceeds are exempt from the prohibitions of § 1957(a) when they are for the purpose of securing legal representation to which an accused is entitled under
the Sixth Amendment. Accordingly, the exemption is limited to attorneys’ fees paid for representation guaranteed by the Sixth Amendment in a criminal proceeding and does not extend to attorneys’ fees paid for other purposes.

Barkett then makes short work of the government's argument:

The Government argues that the exemption in § 1957(f)(1) has been “nullified” or “vitiated” because, shortly after the provision was enacted, the Supreme Court held in Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 626 (1989) that the Sixth Amendment right to counsel does not protect the right of a criminal defendant to use criminally derived proceeds for legal fees. However, Caplin & Drysdale, which addresses a different statute governing the civil forfeiture of criminally derived proceeds, has no bearing on § 1957(f)(1) and indeed supports the conclusion that such proceeds have been statutorily exempted
from criminal penalties. The Government has pointed to no principle of statutory construction—nor indeed to any legal principle—that supports the conclusion that
a statutory provision may be “nullified” by a Supreme Court decision on a completely different issue, absent any indication that Congress intended such a result.

As Kuehne's legal team has been saying from the start, the government's interpretation yields an absurd result:

As the Government concedes, accepting its interpretation of § 1957(f)(1) would read all meaning out of the exemption. Section 1957 criminalizes only transactions involving criminally derived proceeds. It would therefore make little sense—and would be entirely superfluous—to read § 1957(f)(1) as an exemption from criminal penalties for non-tainted proceeds spent on legal representation, as those funds can always be used for any legal purpose. We do not believe Congress intended such an absurd result, which nullifies the provision and divorces it from its statutory context, thereby violating basic canons of statutory construction.

And congrats to Judge Cooke, who was "eminently correct":

The district court was eminently correct in holding that Defendants are not subject to criminal prosecution under § 1957(a), because the plain language of § 1957(f)(1) clearly exempts criminally derived proceeds used to secure legal representation to which an accused is entitled under the Sixth Amendment.

Now let's see if the government does the right thing and dismiss the rest of the indictment against Ben...

Monday Mashup (Updated)

Pretty tough sports weekend with the Fins and Canes heartbreakers. At least the blog fantasy team whooped SFLawyers. Not a lot happening today.... So let's check out what's going on around the net:

Rumpole has been all over the state court email fiasco.

Perhaps the state judges should take their cue from Justice Thomas and hush. Yes, he was talking about oral arguments:

Thomas — who hasn't asked a lawyer a question during arguments in nearly four years — said he and the other eight justices virtually always know where they stand on a case by reading legal briefs before oral arguments.
"So why do you beat up on people if you already know? I don't know, because I don't beat up on 'em. I refuse to participate. I don't like it, so I don't do it," Thomas said during an appearance before law students at the University of Alabama.
Thomas didn't name names, but fellow conservative Justice Antonin Scalia is generally considered the court's most aggressive questioner during oral arguments. President Barack Obama's lone nominee so far, Justice Sonia Sotomayor, isn't afraid to ask questions either.
Thomas scoffed at the idea that the justices try to use questions to influence the opinions of fellow members of the court.
"All nine of us are in the same building," he said. "If we want to sway each other we know where we are. We don't need oral arguments to do that. It doesn't make any sense to me."

The Supremes will be hearing the juvenile sentencing cases from Florida in a couple weeks. The ABA covers it here:

As any parent knows,” children are different. So said U.S. Supreme Court Justice Anthony M. Kennedy more than four years ago in Roper v. Simmons. There, a deeply divided court ruled 5-4 that executing those who committed murder as ju­veniles vio­lated the Eighth Amendment’s proscription against cruel and unusual punishment. Part of the reason, the court said, was that juveniles were less cul­pable, less mature and less responsible than adults.
“The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character,” Kennedy wrote for the majority.
“From a moral standpoint,” he added, “it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.”
This month the court returns to the subject of juvenile justice by examining what has been termed the penultimate punishment for juveniles, life without parole.
In a pair of cases from Florida, Graham v. Florida and Sullivan v. Florida, the court must determine whether Roper’s reasoning—that juvenile defendants are fundamentally different from adult defendants—extends from the death penalty to life without parole. Arguments are scheduled for Nov. 9.

UPDATE -- Another Vanessa Blum video report this morning!

Why I love Florida's Sunshine law

If you haven't seen this yet, you gotta read Susannah A. Nesmith's piece in the DBR today about the email clash between the state court judges on seniority:

Cueto, elected last year, fired off a letter Oct. 14 questioning Brown’s authority to take away his short-term seniority rights. In his e-mail, Cueto said he had been advised he might have grounds to sue but decided not to.
“I do not want to bring any negative publicity to our branch of government, which is still held in high regard in the community,” he wrote in the e-mail to all judges in the county.
***
Hours after Cueto sent his e-mail, County Judge Robin Faber hit “reply all” to voice his support for Brown’s decision, which he said would “right a wrong, to give judges respect for their years of service, regardless of the distinction between circuit and county.” He noted Brown ran for chief judge this year, saying he would change the seniority rules, and merge circuit and county experience to calculate seniority.
***
Circuit Judge Reemberto Diaz fired off a terse response to Faber’s e-mail.
“Mr. Faber: In the past few weeks, I have received three (3) unsolicited e-mails from you. Let me respond in the order they were received:
1. NO. I don’t know an interior decorator to recommend to you;
2. NO. I don’t want to buy comedy tickets from you;
3. NO. I’m not interested in your misguided opinion about the chief judge’s decision. This is not Craig’s list nor a blog. Have a good day.”
In an interview this week, Diaz found fault high and low. “Quite honestly, I’m not interested in what some county judge has to say about the seniority,” he said.
***
Veteran Circuit Judge Robert Pineiro may have put an end to the e-mail debate last Friday with a tongue-in-cheek note reminding the Miami-Dade judiciary to mind their manners. “Alright, I think it is definitely time to resolve this discussion and bring it to a dignified conclusion — one which will make us proud,” he wrote. “I suggest pies (preferably apple) at 10 paces.”

This is too good to be true, isn't it? Here are the actual emails... there are lots of other nuggets, including judges questioning whether seniority is a right guaranteed by the Constitution.
___________________

More fun stuff -- an order from Judge Pat Kinsey of Escambia County was making the rounds yesterday. Above the Law summarizes the lawsuit: "Albert Freed (pictured) won a trip to Hawaii (not pictured). As part of the vacation celebration, Mrs. Freed bought her husband some new Hanes brand briefs. But Mr. Freed is a husky gentleman, and apparently the new trunks couldn’t contain all of his junk. He sued Hanes, claiming they made 'defective' underwear."

Too much fun for a Friday afternoon.

Key West courthouse named after Sidney Aronovitz

Here's the Wiki entry for Judge Aronovitz, who was born in Key West. And here is the DBR article about the naming of the Key West courthouse:

President Obama signed a bill this week naming the federal courthouse in Key West for the late U.S. District Judge Sidney M. Aronovitz on recommendations from the Dade County and Key West Bar associations. Aronovitz, who died in 1997, was nominated by President Ford and served as a federal judge for more than 20 years. His career included rulings on abortion, and the cancellation of $4.6 million in fines against Key West boat owners during the Mariel boatlift. Before he became a federal judge, he served on the Miami City Commission from 1962 to 1966, becoming vice mayor in 1965. Aronovitz also was active in community organizations. He was founding chairman of the Dade County Little HUD Housing Authority and Cedars of Lebanon Hospital. His honors included a Gold Medallion award from the National Council of Christians and Jews. Aronovitz was a Key West native whose pioneering grandfather helped found the oldest Conservative Judaism synagogue in Florida in the 1880s. The courthouse that will take his name is at 301 Simonton St.

News & Notes

Stories around town today:

1. Kenneth Welt, the receiver appointed to oversee Lewis Freeman's business, was sued by his brother who asked that Welt's business be put in receivership. (via DBR).

2. Don Diego pleads to 45 years (via Miami Herald). (I thought the Colombian extradition treaty limited potential penalties to 30 years...)

3. The Broward corruption probe is expanding quickly (via Sun-Sentinel).

4. And details are emerging on the undercover agent who worked on the case (via Miami Herald).

What is taking so long?

Well, we still don't have any word on our next judge or U.S. Attorney. What could be taking so long? Here's an interesting article from the Washington Post, "Obama Criticized as Too Cautious, Slow on Judicial Posts." Some excerpts:

President Obama has not made significant progress in his plan to infuse federal courts with a new cadre of judges, and liberal activists are beginning to blame his administration for moving too tentatively on what they consider a key priority.
During his first nine months in office, Obama has won confirmation in the Democratic-controlled Senate for just three of his 23 nominations for federal judgeships, largely because Republicans have used anonymous holds and filibuster threats to slow the proceedings to a crawl.
But some Democrats attribute that GOP success partly to the administration's reluctance to fight, arguing that Obama's emphasis on easing partisan rancor over judgeships has backfired and only emboldened Senate Republicans. Some Republicans contend that the White House has hurt itself by its slow pace in sending over nominations for Senate consideration. President George W. Bush sent 95 names to the Senate in the same period that Obama has forwarded 23....
The delays are having a ripple effect in federal courts, where caseloads continue to back up, said Senate Judiciary Chairman Patrick J. Leahy (D-Vt.). Currently, about 90 judicial seats -- about 10 percent of the total -- remain vacant in appeals and district courts.
The White House predicts that nominations and confirmations will pick up soon. "The administration has been working closely with members of Congress to identify a set of uniquely qualified judicial nominees with diverse professional experiences," said Ben LaBolt, an Obama spokesman. "This process has been bipartisan and we have made every effort to make confirmation wars a thing of the past."
But liberal activists argue that Obama needs to quicken the pace, partly for political reasons. "It is incumbent on the Democrats and the White House to push as hard as they can to confirm judicial nominees, given that next year Republicans will make an all-out effort to block candidates as a means to gin up their base before the election," said Nan Aron, president of the Alliance for Justice, an advocacy organization.
Analysts say that unlike Bush, who saw judicial appointments as a way to advance a strict view of the Constitution, Obama has not sharply defined his judicial philosophy. Eric Posner, a professor at the University of Chicago Law School, said that Republicans consider the federal courts crucial to furthering their policy aims by overturning current law, but that Obama is among Democrats who view court appointments mainly as a means of defending the legal status quo.

The State system on the other hand is chugging along. John Kastrenakes was sworn in last Friday by Judge Moreno. Grey Tesh has all the details here, including speeches by Ryon McCabe, Judge O'Sullivan, Andrew Lourie and Michael Cornely.

Snitching ain't easy

Lots of interesting reading on this beautiful Sunday. The Sun-Sentinel has a couple of interesting stories on snitching:

1. The first is about a state prosecutor, Sheila Alu, turned FBI informant in the Broward public corruption case:

"Sheila is for Sheila is for Sheila," said Bill Colon, who served two terms as a Sunrise commissioner in the 1980s. "A lot of people will believe that she betrayed their trust."Marvin Langendorf, a Sunrise resident and City Hall gadfly, applauded her courage."There's too much graft going on and no one ever does anything about it," Langendorf said. "People say they can't trust her. But if you don't do anything wrong, you don't have anything to worry about."Those who are not involved in politics likely admire Alu for having the courage to take on an undercover role without training, said Lance deHaven-Smith, a political science professor at Florida State University."If you told your average citizen, 'Other politicians don't trust her,' that would be an endorsement," he said.Call her a snitch or a rat, and Alu has this retort: "I wear that badge with honor."

2. The second is about Operation Deep Six, a state gang case:

"Unlike any gangs I've seen before, they stick together," said the gang detective.On June 26, 2008, detectives in "Operation Deep Six" moved in to take down Top 6. Backed by a grand jury indictment that alleged 91 crimes, SWAT teams from three police agencies raided six homes simultaneously.Detectives tracked down the Top 6 leaders, arresting all 12 within a few weeks.Faced with racketeering charges that could put them in prison for up to 30 years, Top 6's leaders cracked.Jessee Thomas and Ernst Exavier were convicted but got reduced sentences for agreeing to testify against their cohorts. Top 6's leader, Futo Charles, also has agreed to cooperate."I know for me to work it down, I have to be 100% truthful about your questions and about my answers or the deal is off," Charles wrote to prosecutors. "I'm willing to do just that."After at least 20 murders, hundreds of shootings and scores of robberies, burglaries and attacks, Top 6 effectively has been silenced. Palm Beach County is safer today because of it, said police officials and prosecutors."We have seen a real drop in crime," said William Shepherd, Florida's statewide prosecutor. "Which is lives. It's not just numbers on the page."

FBA dinner tonight at the Biltmore

See you all there.

FRIDAY AFTERNOON UPDATE -- Breaking: Lewis Freeman's practice placed into receivership. Receiver -- Ken Welt.