Sad day

Typically I try to blog objectively and just report what is occurring in our District.

Today I can't do that because what happened this morning in magistrate court should not have happened.

Ben Kuehne, one of the pillars of this community, was indicted on money laundering charges. (read indictment here)

The government's theory of prosecution is outrageous. According to Jay Weaver's article:

Justice Department officials allege that Kuehne broke the law in 2002-03 when he vouched for millions paid by one-time Medellín drug lord Fabio Ochoa Vasquez to his high-profile trial attorney, Roy Black.
Kuehne's research gave Black the confidence -- in the form of legal opinion letters -- to accept payments totaling $3.7 million in fees and $1.3 million in expenses from Ochoa, according to several sources. Kuehne earned a portion of the expense payments -- $220,000 to $260,000 -- from Black for vetting Ochoa's payments.

**

Federal prosecutors face a formidable challenge in proving the case against Kuehne. They will have to prove that Kuehne knew Ochoa's money came from the sale of family assets to drug-trafficking associates...

This means that Ben had to have knowingly and willfully lied to Roy when telling him that the fee was okay. But what motive would Ben have for doing this? The money certainly wasn't enough to risk all of this. And Ben Kuehne of all people wouldn't have done these things for a million dollars. He's as ethical a person and lawyer as I know. I'll comment a lot more on the charges once I've had a chance to digest the indictment which was unsealed this morning in mag court.

We all know the real reason for this prosecution -- to discourage lawyers from taking these kinds of cases.

I went to court to support Ben. Half of the legal community was there to show their support. (He was released on a $250,000 personal surety bond.) Watching this unfold really stuck in my gut. I am still in disbelief. I actually had a case in the past with the lead prosecutor from DOJ. I went up to him to say hello and he exclaimed without prompting: "This is a wonderful day for the government." The comment was unnecessary and it sickened me.

I walked away from him thinking just the opposite. This is a terrible day for our country. Ben will be acquitted. But at what cost to him? And our justice system? Now, more than ever, it's critical to fight for our Constitution and our justice system.

In court, Ben commented to Magistrate Judge Brown: "since I am completely innocent of these charges, I am entering a plea of not guilty.'' He is represented by John Nields and Jane Moscowitz.

A bit of good news -- the case was assigned to Judge Marcia Cooke. As I have commented before, she is as fair and just.

UPDATED -- here's a DBR story about the case.

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.

White Collar Crime Blog on Ben Kuehne's case

The White Collar Crime Blog raises some good questions in a number of posts (here, here and here) about the Kuehne prosecution. Professor Ellen Podgor sums up:

Perhaps the most troubling aspect of this indictment is that it represents yet another instance of the government interfering in the payment of attorney fees for the criminally accused. As opposed to going to court and asking for the fees to be returned as improper, they have opted to proceed with criminal charges that in some cases carry up to 20 years.

Here are a number of concerns and questions that she and Peter Henning raise in separate posts:

-- ...But did this DC office investigate the individual charged? Does the fact that 50 lawyers showed up to support Kuehne (see here) mean anything? And did the fact that this top criminal defense attorney (see here) who represented former Vice-President Al Gore make a difference in the DC office bringing this indictment? Clearly the government will say "no" to this last question. But one does have to wonder who has the conflict here?
-- Why did the government select to proceed criminally here? Do they really want opinion letters to be considered an indictable offense? Will they be proceeding criminally against government individuals who gave opinions on matters that might be considered illegal?

-- If the government knows the source of the funds is improper because of their "undercover operation" would it not be logical that the defense attorney could not know the source of these funds - after all it would mean that the government undercover operation was not working effectively.

-- The indictment is preceded by a page titled - "Motion to Seal." It is signed by a "trial attorney - DOJ." It requests the indictment be sealed "for the reason that the named defendants may flee and the integrity of the ongoing investigation may be compromised." - Did the government really believe that Attorney Ben Kuehne would flee? A later sentence states that"many of the named defendants are foreign nationals." But the government fails to limit the language used in the prior sentence that explicitly states "that the named defendants may flee" to only those who might be foreign nationals. That is a powerful statement to claim that a prominent Miami attorney might flee. If they didn't mean to apply this statement to him, is it prosecutorial over-reaching, an attempt to taint the accused, or just sloppy drafting?

-- The indictment alleges that Kuehne's opinion letters were inaccurate in stating that some of the moneys had come from an individual/company that "his investigation" "had determined.... were reputable and well-established, without any connection to illegal activities." The indictment claims that some of these opinions were untrue because moneys had in fact come from "undercover law enforcement operations." ---- Isn't the very purpose of an undercover operation to make it seem like things are real? Is this a situation of accusing someone of issuing incorrect opinion letters because the government did a good job of misleading him?

-- Count Six of the Indictment charges Obstruction of Justice. The charge is expressed in a total of 2 sentences. It states:
"From on or about January 23, 2003, continuing to the date of this indictment, the defendants, .......did corruptly endeavor to influence, obstruct and impede the due administration of justice; that is investigations by the grand jury; to wit, endeavoring to influence, obstruct, and impede a federal investigation, as set forth above. In violation of Title 18, United States Code, s 1503." (names omitted)
A charge without any facts? Did the government actually put a mere restatement of section 1503 as the basis of a criminal charge against an attorney? Co-blogger Peter Henning called the Indictment of Ben Kuehne a "head-scratcher," but that was prior to receiving the document. But after reading it, I'd go a step further - they have actually indicted an attorney for obstruction of justice and alleged no facts in this count to support the charge. It almost sounds like a case the 11th Circuit reversed, U.S. v. Thomas, 916 F.2d 547 (11th Cir. 1990).

-- But when an attorney is asked to opine on the legality of funds to pay for the defense of a drug lord, it seems counterintuitive to say the least that he would give his imprimatur knowing that the funds were in fact the proceeds of narcotics transactions that the government was likely to scrutinize carefully. Given Kuehne's pristine reputation, it is hard to believe he would risk his entire legal career for an amount that, while significant, is hardly worth the loss of prestige and income he would suffer from a money laundering conviction. Would you sell your law license and career for a quarter of a million dollars?

Blogging the Ben Kuehne argument in the 11th Circuit

I was at the oral argument in the Ben Kuehne case this morning. The issue is whether the exception in section 1957 prevents the government from indicting a criminal defense lawyer for taking payment from a client, previously discussed here. Judge Cooke found that the exception applied and dismissed that count against Ben. The government appealed. To cut to the chase up front, Judge Cooke will be affirmed. Here's what happened:

The panel consisted of Judges Barkett, Hull and Quist. Quist is a district judge from Michigan. The government was represented by Vijay Shanker from DOJ in DC. John Nields represented Ben.

The government started out its argument saying that no case supported the defense. Judge Hull jumped on that statement and said this was a case of first impression -- no case supported the government either. The government conceded that point... not a strong start. It only got worse for the government from there.

Barkett asked whether there was any need for the exception if it applied only to clean money. In other words, a lawyer can take clean money any time, so the exception obviously applied only to tainted funds. The government conceded this point and agreed that the exception concerned illegal money, but countered that only as necessary and guaranteed by the 6th Amendment.

Hull then asked whether this interpretation rendered the exception meaningless AND THE GOVERNMENT LAWYER SAID YES. It is the government's position that the words in 1956 are meaningless. Judges Hull and Barkett stuck on this point for a while... Judge Hull finally said: Listen, we have to give words meaning. Sometimes that hurts criminal defendants, but sometimes it helps.

Barkett then asked what the ordinary meaning of the statute was and the response was: whatever the Supreme Court says it means. Barkett responded: "Oh come on." Judge Quist, who seemed the most friendly to the government then asked whether he was relying on Marbury v. Madison. Answer: Yes.

The tone and atmosphere during the government's initial presentation was very hostile.

Then John Nields got up. He was calm and the tone immediately changed. There was no hostility and he received much fewer questions. The argument started: "I represent Ben Kuehne, a frequent practitioner before this Court and a leader of the Bar." Nields explained that the purpose of the statute was to allow criminal defense lawyers to take cases -- if they were afraid they were going to get indicted, they wouldn't. He explained that the exception only applied to criminal cases, not civil cases and importantly not forfeiture cases.

Quist then asked whether a lawyer could be paid with the proceeds from a bank robbery. Wouldn't that be wrong because the victims wouldn't get paid back? Nields explained, I think to the judges' satisfaction, that he couldn't be prosecuted for accepting the funds, but that they would be forfeited and that the victims would be paid back.

Nields went on to talk about the public policy choices that Congress made, and Judge Hull joked that Congress was probably just concerned with the public fisc -- it didn't want defendants with money to have to rely on public counsel.

DOJ said in rebuttal that there were only 3 cases against lawyers under 1957 and that we should just trust them to do the right thing.

Judge Hull ended the argument by explaining that they have had many Fabio Ochoa cases and knew the backdrop of what was going on. They weren't naive. But, she said, they were dealing with a very specific statute and the government had to understand that. Judge Quist responded: "I am naive."

All in all, I think there is a very strong likelihood -- based on the argument -- that Judge Cooke's decision to dismiss the 1957 count against Ben will be affirmed. This is the right and just result. I obviously am biased in the case as I filed -- along with some great lawyers from WilmerHale in DC who actually wrote it -- an amicus brief in support of Judge Cooke and Ben Kuehne on behalf of the National Association of Criminal Defense Lawyers.

The next argument dealt with the co-defendant, Gloria Flores-Velez, who was represented by Ricardo Bascuas and Henry Bell. The same DOJ lawyer argued for the government. Remember that Judge Cooke dismissed the case against this defendant based on speedy trial grounds. I will post more about it in a bit, but there was a funny moment when Rick was using the term "parallel market" instead of "black market peso exchange." The court asked what the parallel market was, and Rick said it was what the government referred to as the black market exchange. The court asked why the government used that term and Rick said "for its pejorative effect." And the judges and audience laughed. It was a good moment.

UPDATE -- Here's Curt Anderson's AP article. And here's the DBR by John Pacenti.

"Defense Team Argues DOJ Ideology Spurred Money Laundering Indictment of [Ben Kuehne]"

Read the article here:

Quoting Bob Dylan and a legal treatise, attorneys for indicted Miami attorney Ben Kuehne and two co-defendants maintain the "unprecedented" money laundering indictment is ideologically motivated by the Justice Department.
At issue is a 1988 carve-out from the federal anti-money laundering statutes that exempts attorneys from criminal liability in accepting defense fees.
"The Department of Justice has been hostile to this exemption for many years and appears not to accept the policies that underlie it," Kuehne's attorneys said in a 13-page dismissal motion. "However, it is Congress that makes the laws."
Kuehne is charged with laundering drug proceeds while vetting $5.2 million in fees collected by celebrity attorney Roy Black to defend Colombian drug kingpin Fabio Ochoa Vasquez. Kuehne, Colombian attorney Oscar Saldarriaga and accountant Gloria Florez Velez were hired to make sure the money was "free from taint" to pay Black's team.

***

Miami attorney Richard Strafer, representing Saldarriaga, contends the government doesn't have a case.
He makes the point in his filing with flair, quoting folk rock legend Dylan's song "Like a Rolling Stone" in his motion to dismiss a wire fraud conspiracy count, writing, "When you [ain't] got nothing, you got nothing to lose."
The government alleges the defendants committed wire fraud by converting pesos to dollars to bring them to the United States and subvert the Colombian government's right to seize the assets.
Motions for Kuehne and Saldarriaga argue the Colombians never made an effort to seize the assets and to this day have not filed a forfeiture action.
Strafer, paraphrasing a decision from the 11th U.S. Circuit Court of Appeals, said in an interview, "The government has taken off in an aircraft without wings, engines or wheels" in the wire fraud count. He is asking for additional time to file more motions hinging on complicated issues of foreign law.

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).

I smell a snitch

Jay Weaver details here the New York case of Hernando Saravia, who appears to be the snitch in the Ben Kuehne case:

Hernando Saravia allegedly gave $1.8 million in drug proceeds to a Colombian kingpin's defense attorney in Miami, but Saravia was not charged in the recent indictment against Kuehne.
Instead, Saravia was indicted on one count of money laundering in New York at virtually the same time. The charge stemmed from his alleged attempt to launder $400,000 in drug sales during a New York undercover operation in early 2002. Saravia faces an indictment similar to that lodged against Kuehne and two Colombian codefendants. It's unclear how the two investigations are connected -- federal prosecutors have declined to comment -- but they appear to overlap.

Here's Myles Malman, a former federal prosecutor, on Saravia:

Malman, the former prosecutor, said Saravia appears to be working as a witness for the government, starting with the initial New York case in which he was caught trying to launder $400,000.
''Based on my examination of the two indictments, the Saravia case bears the earmarks that Saravia is cooperating with the government,'' said Malman.
''There is a strong possibility Saravia was pressured by law enforcement to provide cooperation in the Kuehne case based on his own case,'' he said. ``His own case appears to be the tip of the iceberg and a possible placeholder for prosecutors not wishing to show the rest of their hand in the New York indictment.''
Saravia, aka ''Bacalao,'' has yet to be arrested in the New York indictment, according to court records. On Monday, the U.S. attorney's office in Manhattan did not respond to a question about his status.

Can it really be that the government is going to rely on this criminal's word over Ben Kuehne's? Tell me that's not true.

Trustee Marika Tolz charged with $16 million fraud

The South Florida Business Journal has the story about 64-year-old Hollywood bankruptcy trustee Marika Tolz here. She is charged with misappropriating $16 million in court funds and pocketing $2.4 million of it for herself.

The case is set for first appearance before Judge Garber today at 1:30. Luis Perez is prosecuting and Ben Kuehne is defending. The case is assigned to Judge Lenard. Tolz is charged by way of information so it is evident that a deal already has been struck. In fact the SFBJ is reporting that Ben Kuehne says that Tolz “acknowledges her errors and fully anticipates that all funds will be fully reimburse or restitution made.” More:

Kuehne confirmed that Tolz intends to plead guilty.

“She will be accepting full responsibility for her conduct,” he said.

I asked Kuehne if he could say why Tolz started down the path of corruption. The charges against her suggest she used official funds for person expenses beginning in 2003, but the government’s information in the case doesn’t accuse her of living a “lavish lifestyle,” like other recent fraud cases in South Florida.

“At this point offering any factual description would only be viewed as trying to explain away what happened,” Kuehne said. “She is not attempting to offer excuses.”

Breaking!!

The case against Ben Kuehne and the co-defendants has been dismissed by the Feds. Happy Thanksgiving.

UPDATE -- The government moved to dismiss the pending appeal against Gloria Velez and also moved to dismiss the entire indictment in the district court against Velez, Oscar Saldarriaga, and Ben Kuehne. The motion simply says that it is based on the changed circumstances from the Court of Appeal's decision and in the interest of justice. Indeed. It was signed by Ken Blanco, Deputy Assistant Attorney General.

UPDATE 2 -- Ben Kuehne issued the following statement:

On this, the day before Thanksgiving, I am gratified beyond measure that the United States Department of Justice has decided to abandon all charges against me. I have had throughout a deep and abiding belief that things would turn out well in the end. However, I did not know the end result would come about by decision of the Department of Justice. We are all fortunate to be able to say that we have a Justice Department whose goal is to try to do the right thing—not to win at all costs.

Although I would have preferred not to go through this experience, I am also gratified that my case has been the occasion for an important precedent-setting legal ruling by the District Court, recently affirmed by the Eleventh Circuit Court of Appeals, and embraced by the legal community, in preserving and protecting the Sixth Amendment right to counsel. This ruling deals with an area of law that is close to my heart. It is to the right to counsel in criminal cases that I have dedicated much of my career at the Bar. I want to, once again, thank the many members of our community who have, over the past two years, so consistently expressed their confidence in my innocence. Throughout this period, I have continued to do what I have been trained to do, and what I love most, which is to practice law. I am grateful to the many clients who have reposed their confidence in me by seeking to utilize my legal services.

I am also grateful to my amazing lawyers, John Nields, Jason Raofield, and Laura Shores from Howrey in Washington, D.C., and my good friend, Jane Moscowitz, from Miami. I wish to thank them for their skill, dedication, and commitment to me and my case.

Finally, throughout this legal drama, my greatest strength has been the unsinkable spirit and love of my wife, Lynn, and our entire family. I want to thank them for knowing who I am, and of my sincere dedication to the law.

More on Ben Kuehne

This weekend Jay Weaver had an interesting article about the oral argument in Ben Kuehne's case. Background here. Jay asks whether DOJ has targeted Fabio Ochoa's lawyers because they actually had the nerve to go to trial. And Joe DeMaria, the recent quote-master, is at it again:

"This is the Scopes Monkey trial of money laundering cases,'' said former federal prosecutor Joseph DeMaria, referring to the historic 1925 test case in Tennessee over the teaching of evolution in school.**
"If the government wins a conviction against somebody like Ben Kuehne, it will send the defense bar into a deep freeze,'' said DeMaria, who has represented several white-collar defendants in civil forfeiture cases. "This isn't just about drug dealing; it affects the entire spectrum of law enforcement.''

Read the whole article... Good stuff.

Sitting here watching MNF right now. It was a long weekend for Miami sports. Dolphins, Canes, Pennington.... Ugh. At least we got off the board in the blog fantasy league.

**I like how Jay has to explain to the Herald readers what the Scopes Monkey trial is all about...

House Pizzi vs. House Slaton (UPDATED)

In addition to the mass chaos this morning because it's the first day of school, there is going to be quite a show over at Miami Lakes City Hall if Michael Pizzi follows through with his promise to appear as Mayor this morning.  Over the weekend, Ben Kuehne sent the following letter on behalf of former-now current (?) mayor Michael Pizzi:

Alex Rey, Town Manager

Town of Miami Lakes

6601 Main Street

Miami Lakes, FL 33014

reya@miamilakes-fl.gov

Marjorie Tejeda, Town Clerk

Town of Miami Lakes

6601 Main Street

Miami Lakes, FL 33014

tejedam@miamilakes-fl.gov

                             Re:   Mayor Michael Pizzi

                                      Access to Town Hall and Mayoral Office

Dear Manager Rey and Clerk Tejeda:

          In strict accordance with Florida law following Mayor Pizzi’s acquittal on all charges in United States v. Michael Pizzi, U.S.D.C. Case No. 13-Cr-20815-Cooke (S.D. Fla.), Mayor Pizzi has resumed his constitutional duties and responsibilities as the duly elected Mayor of the Town of Miami Lakes to serve the 4-year term to which he was elected in November 2012. His suspension has been automatically lifted as a matter of law as a result of his acquittal.

          Mayor Pizzi appreciates The Town’s assistance in having restored his  mayoral office to him on the evening of August 14, 2014, when he re-entered Town Hall as Mayor immediately following his acquittal. At that time, you also returned his official Town photograph as Mayor to the Town Hall wall, and removed the personal effects of temporary Town Mayor Slaton from Mayor Pizzi’s office. That same evening, Mayor Pizzi was welcomed to Town Hall to resume his official duties and held a series of constituent meetings as Town Mayor.

          I now understand there is some confusion arising from the illegal efforts of the temporary Town Mayor to attempt to exercise official power beyond the temporary term to which he was elected. That is precisely why Mayor Pizzi will be continuing to utilize his mayoral office space effective on Monday, August 18, 2014, at 9 a.m. He will also need the services of an Administrative Assistant, and will require re-issuance of appropriate access credentials.

          Mayor Pizzi also intends to call a Special Council Meeting for the purpose of providing a community update to the citizens and residents of the Town. Please provide suitable dates consistent with public  notification requirements. Thank you for your assistance.

                                                                   Respectfully submitted,

                                                                   S/ Benedict P. Kuehne

                                                                   BENEDICT P. KUEHNE

The Herald covers the City's response:

The town’s response: If he goes into any unauthorized areas including the mayor’s office “he will be deemed a trespasser and subject to arrest.”
“The town of Miami Lakes will not tolerate a breach of the peace or disorderly conduct by Mr. Pizzi or anyone else,” Miami Lakes town attorney Raul Gastesi wrote on Sunday in response to a letter by Pizzi’s attorney Ben Kuehne, sent the day before, about Pizzi’s intentions of returning to office on Monday.
***
Slaton said on Sunday that he hoped Pizzi would change is mind about showing up at town hall.
“I was elected to serve until 2016 and that is exactly what I am going to do,” he said.

Well, who are you rooting for -- House Pizzi or House Slaton?

UPDATE == Chuck Rabin reports on Twitter that Pizzi did indeed show up and met with numerous people behind closed doors.  He wasn't arrested but was told that he wasn't the mayor.  Pizzi said he would instruct his lawyers to take legal action. 

***

 ***
In response, Gastesi said that “there is no confusion.”
“The Mayor of Miami Lakes is Wayne Slaton,” he wrote.
Pizzi called Gastesi’s response “insulting and ridiculous.”
“Mr. Gastesi has never practiced municipal law in his entire life,” he said. “He was appointed by Slaton because of his friendship and political loyalty and for no other reason. Instead of taking an objective position and doing research, Mr. Gastesi is acting as a personal lawyer for Mr. Slaton and leading the city down the wrong path.”
Pizzi said it is his responsibility to Miami Lakes residents for him to go back to work.
“I have no choice,” Pizzi said. “If I was to do anything else I'd be derelict in my duties.”

So are you rooting for House Pizzi or House Slaton?

                                        

“He tried to nail Ben to the wall."

That's Henry Bell discussing Robert Feitel in this Herald article about lawyers and money laundering by Michael Sallah.  More:

Robert Feitel, a veteran lawyer with a long history of prosecutions, charged into court as the Justice Department’s point man to take on a prominent Miami lawyer in a case that came to symbolize the rights of attorneys to accept fees from international drug traffickers.
Feitel accused lawyer Ben Kuehne of fabricating documents to cover up dollars for the Medellin Cartel. He accused him of orchestrating the payments through overseas wires. He even said Kuehne knew much of the money came from the sale of drugs.
Now, years after the case ended, Feitel is cast in a strikingly similar position as the man he once prosecuted.
The Miami Herald found that more than $100,000 in drug money belonging to criminal organizations was sent to Feitel’s law firm by South Florida undercover officers posing as money launderers to infiltrate drug groups.
The undercover police picked up the cash in New York and sent the money to Feitel — now a defense attorney who specializes in drug cases — at the behest of criminal organizations in a series of payments never questioned by the former prosecutor, records and interviews show.
Kuehne, whose case was ultimately dropped by the government in 2009, said he was surprised to learn about payments to the man who once prosecuted him.
“The question is: Why was he getting the money?” said Kuehne, a former member of the Florida Bar’s board of governors who represented Vice President Al Gore in the 2000 presidential recount. “Is he going to get the same knock on the door?”
Contacted by phone, Feitel said he was unaware of the money sent to his office in northwest Washington, where he works mostly as a solo practitioner, adding he was surprised by The Herald’s call. “We’re usually pretty careful” about accepting questionable fees, he said.

Oh... it's the usually we're pretty careful defense! Henry and others were having none of it:

Several defense lawyers from Miami said they were riled that the onetime senior prosecutor was never questioned by law enforcement agents about the money sent to his account — funds picked up off the streets of New York from drug suspects.

“In his role at the DOJ, he prosecuted Ben for the same thing;” Bell said.

In an earlier interview, Feitel said money sent from a U.S. bank like the one used by the task force is more difficult to screen than funds from overseas exchange houses. “How was I supposed to know” the money is tainted? said Feitel. “That would have been difficult.”

One former federal prosecutor said money wired to a law firm from someone who is not a client should have raised basic questions. “What did he think the money was for?” said Joseph DeMaria, a Miami attorney who once served on the DOJ’s Organized Crime and Racketeering Section. “He’s got to be saying to himself: ‘Why am I getting this money? Especially someone who was a former prosecutor who’s even more heightened on these kinds of issues. He spent his career putting people in jail for money laundering.”

Yahweh Ben Yahweh dies at 71

Here's the obit from the Herald:

Yahweh Ben Yahweh, the South Florida sect leader whose brand of black supremacist preachings drew his followers into a brotherhood of murder and terror in the 1980s, has died in Miami, his lawyers said.
Lawyer Ben Kuehne said Ben Yahweh, 71, died in his sleep overnight. ''Cancer is the cause,'' Kuehne said. Ben Yahweh had been ill with prostate cancer.
The self-proclaimed ''Black Messiah,'' Yahweh based his operation in the bunker-like Temple of Love in Liberty City, once telling his followers that white people were terrorists and that unbelievers were devils.
Federal prosecutors, however, branded him the most notorious criminal in South Florida. Convicted of conspiracy, he served 11 years of an 18-year federal prison sentence.
Born Hulon Mitchell Jr. in Oklahoma, the preacher and activist moved to South Florida in 1978 and changed his name to the Hebrew words for ``God, son of God.''
A charismatic leader, he founded the Nation of Yahweh, boasting thousands of followers who often dressed in white and who once won praise for rehabilitating blighted Miami neighborhoods.
According to a book on Yahweh written by former Miami Herald reporter Sydney P. Freedberg, Yahweh was the oldest child of a minister. He joined the Nation of Islam before turning up in Orlando as Brother Love and eventually finding fertile ground among the poor and black in Miami.
Yahweh, who called himself a prophet and wore a turban and flowing white robes, preached racial and religious separatism for blacks.
At the same time, he amassed a real estate and business empire worth at least $8 million. He won favor with prominent local politicians, who considered him a positive force for inner city neighborhoods. Yahweh and his followers opened grocery stores, hotels and apartment complexes.
Just a month before Yahweh's indictment in 1990, then-Mayor Xavier Suarez declared Oct. 7 as Yahweh Ben Yahweh Day.
Federal prosecutors, however, accused him of plotting 14 Miami-Dade County murders, two other attempted murders and of ordering the firebombing of a Delray Beach neighborhood in 1986 to further his religious empire.
Federal and state investigators spent millions of dollars and more than a decade tracking 20 homicides they believed were connected to the Miami-based religious sect. Yahweh's only conviction came on the conspiracy charge.
In October 2006, after Yahweh completed five years of parole, two of his lawyers, Jayne Weintraub and Steven Potolsky, went to federal court in an attempt to end his parole. They said the prostate cancer had metastasized and he was dying.
The attempt to free him from parole ultimately succeeded, Weintraub said Tuesday.
Yahweh had been living alone in Miami after his release from prison, his lawyers said, and he had kept away from his former followers.
In court papers, they wrote that Yahweh was ``greatly desirous of the simple dignity of being permitted to die a free man, not a parolee.''

"Much of Brickell Avenue Was Built With Drug Money."

Welcome to Monday, folks -- SFL here, still subbing for the big man.

Remember, no throwing erasures in the classroom!

That great quote above is from Joe DeMaria, weighing in on the black market peso exchange and the government's case against Ben Kuehne:

Kuehne is represented by Miami attorney Jane Moscowitz of Moscowitz & Moscowitz and John Nields of Howrey in Washington. Kuehne has become a cause celebre among peers who see his prosecution as an attempt to chill legal representation for drug traffickers and other high-profile defendants. Kuehne’s clients included Vice President Al Gore in the 2000 presidential recount litigation.

Now his own attorneys are challenging the use of a key government expert, retired DEA agent Donald Semesky, who they say will testify that most of the dollars that Colombians get from the exchange are from narcotics trafficking. “Agent Semesky’s proffered testimony is woefully insufficient” and is intended to fill a gap in evidence, the Feb. 6 defense motion states.

Kuehne argues a federal bankruptcy court in New York recently rejected the government’s characterization of the exchange as utterly corrupt.

DeMaria said it’s disingenuous for prosecutors to denigrate the parallel money market.

“Much of Brickell Avenue was built with drug money. Does that mean you take down all those financial institutions?” he asked. “Sometimes the government has gone too far with the black market peso exchange.”

Take 'em down?

We're probably bailing them out.

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)

Ben Kuehne receives award

The Florida Association of Criminal Defense Lawyers-Miami Chapter had its annual banquet Saturday night. Of note for this blog, Ben Kuehne received the lifetime achievement award (which the group decided to give him after he was charged, not before as was reported in the NLJ and WSJ blog -- I know this because I was at the meeting where we unanimously agreed on the award). Ben spoke eloquently after he was introduced by Hank Coxe, former president of the Florida Bar.

The Jose Padilla defense team was also given awards. They were introduced by Kathy Williams, who gave a wonderful and fiery talk. Michael Caruso's speech was well done; he spoke about how important it was to have an independent judiciary and he applauded Judge Cooke for upholding her role in this respect.

On the state side, Steve Leifman received the judicial distinction award. He does such good and important work for the mentally ill. His award was well-deserving.

In addition to the awards, it's always fun to people watch at these things.... All in all, a fun night.

UPDATE -- apparently the WSJ blogger was there.

Weekend reading

1. Ben Kuehne. The feds decided to drop the obstruction count, but added a wire fraud count:

Federal prosecutors have added and subtracted charges in the money-laundering indictment brought against prominent Miami attorney Ben Kuehne and two others.
In a superseding indictment filed Friday, the Justice Department added a wire-fraud conspiracy count but dropped an obstruction of justice charge.

2. Trials. in 2007, the SDFLA had 155 trials, more than any other district, followed by SDNY (108), MDFL (108), SDTX(106) and WDTX(105). In fact, we had more trials than the entire 1st Circuit, and almost as many as the 3rd and 10th Circuits.

3. Libery City 7. Vanessa Blum examines why the government is having so much trouble in this case -- perhaps it was because they arrested too early:

The failure of federal prosecutors to convict any members of an alleged South Florida terror cell after two trials highlights the obstacles in a legal strategy of arresting terror suspects before they strike.That approach, known as preemption, has been the Justice Department's mandate since the attacks of Sept. 11, 2001, drove home the potentially lethal consequences of not acting soon enough to stop terrorism.But moving too quickly may have doomed the so-called Liberty City 7 case by leaving prosecutors without sufficient evidence to back up their sensational allegations that the men wanted to launch a ground war against the U.S. government.Violent rhetoric caught on tape from the group's leader and a grainy video of the defendants swearing an oath of allegiance to al-Qaida have not been enough to convince jurors the men were conspiring to join forces with the terror group and not, as defense lawyers argued, simply playing along in a scheme for money.

4. There is a white collar seminar in the Middle District coming up with some impressive speakers.

More on Kuehne R&R

SFL here, hope you had a nice weekend.

Here's a nice quote from John Pacenti's article on Judge Bandstra's R&R on Ben Kuehne:

If Bandstra’s decision stands, the case would be down to five substantive money laundering counts. Kuehne and Saldarriaga are accused of using a money broker to hide the movement of drug profits into the defense fund. The money broker was an informant working with the government and exchanging pesos for dollars used in U.S. drug stings.

Miami litigator Jane Moscowitz, one of Kuehne’s attorneys, said she was thrilled with the Bandstra ruling.

“It took my breath away that the motion had been granted,” she said.

And us too, Jane.

And here's some more background on the IRS/UBS suit, which is being closely watched in financial and legal circles:

While the deferred prosecution agreement reached between Swiss banking giant UBS and federal prosecutors on Wednesday might have initially looked like a great deal for the government, in reality the Zurich-based bank isn't disclosing nearly as many client names as law enforcement officials are suggesting, says Miller & Chevalier tax partner George Clarke III.

Clarke says that the decision by the Justice Department to file suit against UBS on Thursday in Miami is evidence of this.

Despite forking over $780 million in penalties as part of its deferred prosecution agreement, UBS, represented by Wachtell, Lipton, Rosen & Katz litigation partner John Savarese, managed to secure a pretty good deal for itself, Clarke says.

Sure, not bad for a bunch of carpetbaggers from New York. But what are we, chopped liver?

Breaking -- Judge Cooke dismisses case against Ben Kuehne's co-defendant for Speedy Trial violation

In a 13-page Order, Judge Cooke has dismissed the case against Gloria Florez Velez, the lead defendant in the Ben Kuehne case for a violation of her speedy trial rights. Henry Bell represents Ms. Velez. More to follow...

Ben Kuehne to receive award from FACDL-Miami this weekend

Saturday night the Florida Association of Criminal Defense lawyer will be having its annual banquet. Ben Kuehne will be receiving the Daniel S. Pearson-Harry W. Prebish Founder's Award, FACDL's highest honor. The Jose Padilla defense team will be receiving the Rodney Thaxton "Against All Odds" award, and Judge Steve Leifman will receive the Gerald Kogan Judicial Distinction Award.

Julie Kay writes about it here.