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?


Anonymous said...
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Anonymous said...

Where in the indictment does it say Kuehne knew or should have known that the monies were tainted "proceeds"? What about the 1503 charge? Repeats the statute elements for the facts? There is a lot more here that the blogging professors do not know or understand. And, by the way, the more colleagues laud Ben's skill as an attorney, etc., the more they sink the obvious defense -- I made a mistake I did not do the due diligence sufficiently, I meant well, but I did not know and could not have known......

There is a lesson here -- you should never accept fees from a source other than from whom and where and how you are told it is coming (i.e., not through peso exchange or cambio) and certainly not in 57 wire transfers. (Of course, you cannot accept $ before you do the due diligence). And, if you get $ sent that you cannot verify, it cannot be used or returned. (E.g., The DNC returned a doper's money once. I believe the check was then cashed by someone else. Without question it was an 18 USC 1957 violation).

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Anonymous said...

Removing the post that criticized the former US Atty that these lawyers went to for an okay of the fee is weak.

At the time the approached him (when Black et al were entering the case) he would have known the money that was being used for the fees came from an undercover government operation. Instead of doing the right thing and saying no, the fees are tainted we won't agree. He allowed his office to state that they would take no position on the fee. That is misleading.

He acted in that manner and allowed a "crime" to take place. Why is he above criticism for it?

Anonymous said...

I wonder how many times Mr. Jimenez slapped Ben on the back and shook is hand at politically expediant times during Bar Functions? Is it not fair to criticize that behavior -- given the knowledge he must have had?

Rather than removing the discussion, join in and state why you think those actions should not be criticized.

David Oscar Markus said...

I have no problem with criticism and that's why I left up your last two posts. But name calling won't be permitted, especially by someone who isn't willing to post his name.

Anonymous said...

Jimenez is clearly a friend of the blog.

Anonymous said...

The cite on U.S. v. Thomas is 916 F.2d 647 (11th Cir. 1990).

Rumpole said...

Is Ben's case a DOJ case because the locals did not believe in the case? or is it a DOJ case because the locals believed they were somehow conflicted? If the case is a DOJ only case, who started the investigation? What agent, what agency?

Anonymous said...

It doesn't matter -- a distinction without meaning.

Anonymous said...

If criticizing the knowledge of money laundering offenses by the former and current US Attorney is perceived to be in poor taste, then why don't you post whatever you know about them that suggests either would know the difference between a 1956 and 1957 violation? You might want to add Guy Lewis in the mix too! (BTW, anonymity is required otherwise you seldom get the real and full truth). Finally, no one mentioned that the bona fide practice of law is exempt from obstruction prosecution, but apparently due diligence work on fees is not. That is also an interesting but no longer academic question that may be in the Kuehne case.

Anonymous said...

Now, let's not drag Lewis into this. He isn't the bad Guy here. Seems to me Mr. Jimenez, who likes to post on this blog, has gone mute?

Anonymous said...


Why no post about the most recent love letter to Acosta from your media partner the DBR?

Anonymous said...
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David Oscar Markus said...


The local U.S. Attorney's Office recused but did not explain why they did so.

Anonymous said...

Best guess, it was for two reasons:

(1) The US Atty did not want his name on an indictment that was so ridiculous for fear of "political memory";*


(2) The former US Atty - Jimenez - was involved in the "sting" because they knew the money was from a LEO investigation and chose to allow a "crime" to be committed, rather than honestly say "you can't take the fee, it is tainted, we can't tell you why, if you do it is at your risk."

* It is ironic then that he did not step in and attempt to prevent this fiasco from happening.

Anonymous said...

Why is the blog being censored?

Marcos Daniel Jimenez said...

David: I appreciate your efforts to keep this blog on a professional level, but you shouldn't feel a need to delete comments, especially any directed at me. Comments are a dime a dozen. And you know how I feel about anonymous posts - intelligent readers will know how much credence to place on them. I find it amusing that these anonymous posters know about meetings I had or things I supposedly did in my capacity as US Attorney. They don't really know, and should check their dates. It would not be appropriate for me to comment publicly on the merits of Ben's case. I know that Ben and his attorneys will uphold the highest standards of our profession in the defense of this case. I'm only writing this because I think your blog serves a useful purpose, and I'm sure you will continue your efforts in an objective and classy manner.

Anonymous said...

An undercover operation merely conceals the government's role in an investigation--not necessarily the aspects of it that are illegal--such as taking dopers' money and charging a fee for an exchange or transfer abroad.So the fact that it was an undercover sting only enhanced the likelihood that anyone dealing with the agents would know they were doing something illegal..

And Roy Black--anybody willing to opine on this sacred cow? and how he essentially used Ben?
And how unwise was Ben to prove his manhood in effect by allowing the money to flow through his accounts--if the money was so clean in Black's view, why didn't he take the wires directly?
Look for the government to produce a flippee who claims Ben was in on the scam..
And how much has Roy contributed to Ben's defense fund?

Anonymous said...

"Now, let's not drag Lewis into this. He isn't the bad Guy here."

How sure of that are you? I believe Jimenez, above.

Anonymous said...

"Marcos Daniel Jiménez (Southern District of Florida) was appointed U.S. Attorney on August 5, 2002..."

That appointment falls squarely within the indictment's allegations:

Paragraph 6: December 2002, Ben hired by defense team

Paragraph 7: Between April and September of 2002, Ben drafted memos

Read the indictment regarding the transfers and you will again see that Mr. Jimenez's reign fell smack in the middle of the transfers.

Mr. Jimenez, yes, I do post anonymously for fear of reprisals.

But what is really going on here? An entire office playing both sides of the political fence? Stating as you did that "Ben...will uphold the highest standards of our profession..." when the simple facts alleged by the government, and widely reported in the papers establish that you knew (or should have known) what was going on at the time the Ochoa lawyers were seeking the government's guidance on the fees.

Anonymous said...

I met with Justice Department officials just before Kuehne was indicted, and they told me that then US Attorney Jimenez passed on indicting Kuehne because "they thought he had too much juice for them to touch him here."

You want to hook me up to a polygraph so I can tell you which Justice Department officials told me that, go right ahead. Mark Jimenez' comments in this thread aren't worth the cyberspace they're taking up.

Jack Thompson, Once and Future Attorney for anyone who wants to know more (So sue me, Mark. Put down that iron)