1. Jay Weaver keeps us informed on the Ben Kuehne case. Rumpole summarizes the article this way:
The Government was using an informant to feed Kuehne phony information that drug money was legitimate. They ought to hang their heads in shame for prosecuting this man.
2. Curt Anderson has this article, titled: "Huge Drug Euro Laundering Scheme Found." Here's the intro to the article:
Every day, American Airlines Flight 914 takes off from Bogota, Colombia, at 8:20 a.m. and touches down at the Miami airport at noon. In the jet's cargo hold are usually bags and bags of euros that investigators say are part of a huge $1.4 billion cocaine money-laundering scheme.Crime is happening right on schedule in Miami, almost every day, federal prosecutors say. But so far, despite nearly four years of investigation, they have apparently been unable to build a strong enough case to stop it.Instead, they are attacking the problem piecemeal. The U.S. Justice Department this week went to federal court in Miami seeking forfeiture of nearly $11 million seized last June and July by federal agents, who used drug-sniffing dogs to find cocaine residue on some of the cash.
3. And here's Vanessa Blum on a doctor charged in a prescription fraud case in which someone died. Could that death have been prevented?
Before a West Palm Beach resident died from a prescription drug overdose in June, federal agents received at least two warnings the man's doctor was prescribing drugs irresponsibly and perhaps illegally, according to court records.Dr. Ali Shaygan, 35, of Miami Beach was arrested Monday on charges he wrote prescriptions outside the scope of professional practice and without a legitimate medical purpose. The 23-count indictment accuses Shaygan of causing the June 10 death last year of 29-year-old James "Brendan" Downey.Downey's older brother, Timothy Downey of Wellington, said his brother became addicted to painkillers after breaking his ankle in a 2005 car accident.
If a criminal defense lawyer made this call, he'd be in an awful lot of trouble:
"Dr. Shaygan is the doctor that prescribed them for him — prescribed whatever he wanted, it seemed," he said. "I think the best thing to happen for society at this point is to get him and every other doctor prescribing pills to these children off the street." Timothy Downey abruptly ended the interview saying he had received a call from someone in the U.S. Attorney's Office instructing him not to speak with reporters about the case.
More about the timing of the arrest:
A sworn affidavit from Agent Christopher Wells of the DEA detailing the investigation suggests authorities may have missed two chances to stop Shaygan from prescribing before Downey's death. The affidavit was filed Feb. 8 with an application to search Shaygan's Miami Beach condominium for pharmaceuticals, records, customer lists and other items
According to Wells, Shaygan was fingered in February 2007 by a drug suspect who said the doctor sold him prescriptions for large quantities of pain medication "with no medical examination."About a month later, authorities arrested a second drug suspect carrying one-half pound of methamphetamine and a prescription signed by Shaygan. The man said Shaygan would write him prescriptions "for any medication" he requested, Wells stated.Court records do not indicate how those tips were handled. What is clear is that after investigators linked Shaygan to Downey's death, the DEA launched an aggressive criminal inquiry that involved sending two undercover agents into Shaygan's Miami Beach office.
The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Sunday, February 17, 2008
Thursday, February 14, 2008
Happy Valentine's Day, loyal readers!
Well, not much going on in the District the last couple days except that Dore Louis (of Go, Dore, Go fame) was on federal jury duty. I hear that even though he's a former prosecutor, the government struck him! No matter, the jury (in front of Judge Martinez on a misdemeanor case of bringing a knife into a federal building) acquitted in about an hour.
In other news, the WSJ blog posts this interview by the BBC of Justice Scalia. Enjoy:
On physical interrogation:
Smacking someone in the face could be justified. You can’t come in smugly and with great self satisfaction and say ‘Oh it’s torture, and therefore it’s no good.’
On assuming that the Constitution’s ban on cruel and unusual punishment applies to torture:
Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the Constitution? . . . . It would be absurd to say you couldn’t do that. And once you acknowledge that, we’re into a different game. How close does the threat have to be? And how severe can the infliction of pain be?
On Europe’s view of capital punishment:
If you took a public opinion poll, if all of Europe had representative democracies that really worked, most of Europe would probably have the death penalty today. There are arguments for it and against it. But to get self-righteous about the thing as Europeans tend to do about the American death penalty is really quite ridiculous.
In other news, the WSJ blog posts this interview by the BBC of Justice Scalia. Enjoy:
On physical interrogation:
Smacking someone in the face could be justified. You can’t come in smugly and with great self satisfaction and say ‘Oh it’s torture, and therefore it’s no good.’
On assuming that the Constitution’s ban on cruel and unusual punishment applies to torture:
Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the Constitution? . . . . It would be absurd to say you couldn’t do that. And once you acknowledge that, we’re into a different game. How close does the threat have to be? And how severe can the infliction of pain be?
On Europe’s view of capital punishment:
If you took a public opinion poll, if all of Europe had representative democracies that really worked, most of Europe would probably have the death penalty today. There are arguments for it and against it. But to get self-righteous about the thing as Europeans tend to do about the American death penalty is really quite ridiculous.
Tuesday, February 12, 2008
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.
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.
Sunday, February 10, 2008
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?
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?
Lyglenson Lemorin speaks...
...from his immigration prison in Georgia. This is the acquitted defendant from the Liberty City 7 case who remains detained on the same allegations for which he was acquitted. Apparently, the immigration judge told him that there is a difference between being innocent and being acquitted.
It's a brave new world; Why have jury trials at all? It's all over the press -- The Herald, the AP, The Sun-Sentinel.
Here's part from Mike Mayo's blog:
Lemorin had a preliminary hearing before U.S. Immigration Judge William A. Cassidy on Thursday. Cassidy was in Atlanta; Lemorin appeared by video from Lumpkin.According to Lemorin, Cassidy said, "There's a difference between being acquitted and being innocent.""That was very strange to me," Lemorin said. "I always heard that you were innocent until proven guilty, and I'd been found not guilty by a jury of my peers. I asked somebody if he could explain that, but he moved on to something else. It was weird.... There are a lot of things I don't understand."Immigration hearings have a lower burden of proof than criminal trials. Government documents filed last week claimed that Lemorin was a member of a terrorist group and he was likely to get involved in terrorism if he stayed in the country."I'm not a threat to the United States of America," Lemorin said. "I love this country. My son and daughter are here, so this will always be my country."Lemorin's immigration attorney, Charles Kuck, said the full immigration hearing is tentatively set for late May. He requested bond and a change of venue to Miami."You have the government getting a second bite of the apple because of the way immigration law is set up," Kuck said. He said the case should be a wake-up call for legal permanent residents to get their full citizenship. "Anybody who's not a citizen should be very, very concerned."Said Lemorin: "The same thing could happen to anybody."
Mayo concludes:
Lemorin and his family moved to Atlanta before the government made the highly publicized arrests. ... Because of a continuing gag order, Lemorin could not discuss specifics of his cases, including the concluded criminal trial.The whole thing seems astounding.An acquitted man might not truly be free until he gets shipped off to Haiti.
It's a brave new world; Why have jury trials at all? It's all over the press -- The Herald, the AP, The Sun-Sentinel.
Here's part from Mike Mayo's blog:
Lemorin had a preliminary hearing before U.S. Immigration Judge William A. Cassidy on Thursday. Cassidy was in Atlanta; Lemorin appeared by video from Lumpkin.According to Lemorin, Cassidy said, "There's a difference between being acquitted and being innocent.""That was very strange to me," Lemorin said. "I always heard that you were innocent until proven guilty, and I'd been found not guilty by a jury of my peers. I asked somebody if he could explain that, but he moved on to something else. It was weird.... There are a lot of things I don't understand."Immigration hearings have a lower burden of proof than criminal trials. Government documents filed last week claimed that Lemorin was a member of a terrorist group and he was likely to get involved in terrorism if he stayed in the country."I'm not a threat to the United States of America," Lemorin said. "I love this country. My son and daughter are here, so this will always be my country."Lemorin's immigration attorney, Charles Kuck, said the full immigration hearing is tentatively set for late May. He requested bond and a change of venue to Miami."You have the government getting a second bite of the apple because of the way immigration law is set up," Kuck said. He said the case should be a wake-up call for legal permanent residents to get their full citizenship. "Anybody who's not a citizen should be very, very concerned."Said Lemorin: "The same thing could happen to anybody."
Mayo concludes:
Lemorin and his family moved to Atlanta before the government made the highly publicized arrests. ... Because of a continuing gag order, Lemorin could not discuss specifics of his cases, including the concluded criminal trial.The whole thing seems astounding.An acquitted man might not truly be free until he gets shipped off to Haiti.
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