Unbelievable.
Plus, Dan Marino keeps his passing yards record by 16 yards as Drew Brees comes up just short.
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, December 28, 2008
Dolphins
AFC EAST CHAMPS!
Unbelievable.
Plus, Dan Marino keeps his passing yards record by 16 yards as Drew Brees comes up just short.
Unbelievable.
Plus, Dan Marino keeps his passing yards record by 16 yards as Drew Brees comes up just short.
Tuesday, December 23, 2008
Monday, December 22, 2008
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).
Huge news during this holiday week. Big props to Judge Cooke for doing the right thing and for authoring a beautifully written 13-page order. I earlier had covered the oral argument of the motion hearing here. The issue as I explained then was:
The issue on Count I is whether an attorney (Ben Kuehne) can be prosecuted under 1957 for receiving legal fees in light of 1957(f)(1)'s exception for "transaction[s] necessary to preserve a person's right to representation as guaranteed by the Sixth Amendment to the Constitution."
Judge Cooke found that Ben Kuehne could not be prosecuted because the funds were for legitimate legal services:
The Indictment states that the Defendants, including Velez and Saldarriaga conducted or caused to be conducted a wire transfer to the Ochoa criminal defense team immediately after each of the first four Opinion Letters. Indictment, ¶9. The purpose and object of the conspiracy in Count One was for the purpose of paying legal fees. Indictment, ¶38. Only fees for legitimate legal services are alleged in Count One. The language in the exemption does not require that he transactions involve only the client and the attorney. The statute exempts “any transaction.”
Judge Cooke makes clear that her Order does not provide blanket protection for money laundering by lawyers:
The dismissal of Count One of the Indictment does not prevent the Government from properly prosecuting attorneys for money laundering related crimes, nor does it totally negate criminal liability for an individual who may conspire to launder tainted funds to pay legal fees. The government’s concern that application of the § 1957 exemption would hinder or bar prosecution of anyone who had contact with tainted funds that were eventually used to pay criminal defense fees is unfounded. The Indictment, in Counts 2 through 6, also charges Defendants under 18 U.S.C. § 1956 with money laundering concealment conspiracy and
concealment money laundering. There is no exemption contained in § 1956 for transactions ecessary to preserve a person’s right to representation as guaranteed by the Sixth Amendment to the Constitution. None of these Defendants have moved to dismiss Counts 2 through 6. For good reason. Accepting the allegations in the Indictment as true, as required at this juncture, the crimes are appropriately plead and any further determination of the charges should be made on a Rule 29 motion.
This is a huge and well-deserved victory for Ben. Congrats. There are still a number of counts left in the indictment, but the government's case is more in tatters right now. It should seriously consider dismissing the entire indictment at this point and moving on. (And yes, I am biased both because I am friends with Ben and because I am co-counsel for the National Association of Criminal Defense Lawyers who filed a brief in support of this motion).
Breaking!
Judge Cooke granted Ben Kuehne's motion to dismiss Count 1. More to follow soon.
Sent via BlackBerry by AT&T
Props to Judge Zloch
The Green Bag (a journal dedicated to "good writing about the law") announced its annual list of outstanding legal writing for the past year. A order from the Southern District was noted as recommended reading. See In re Beck, 526 F.Supp.2d 1291 (S.D. Fla 2007) (written by Judge Zloch). Here is a link to the order and a link to the list of honorees. We wrote about another Judge Zloch order last week that caught our attention.
Subscribe to:
Posts (Atom)