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I Am Thankful That Judges Can Read Plain English, Even If The Justice Department Cannot

Nov 25, 2009
By .
Irksome, Law

Miami attorney Benjamin Kuehne is no doubt thankful as well, but it's got to be a bittersweet feeling.  After all, the Justice Department has been prosecuting Kuehne for two years, on what it calls a "test case."  The subject of the test?  Reading comprehension.

I give the government a failing grade.

Federal authorities, according to a court filing Wednesday, decided to give up their test case against Ben Kuehne, who advised defense attorney Roy Black to accept $5.2 million in payments from defendant Fabio Ochoa after concluding the money was clean.

Prosecutors withdrew the indictment against Kuehne after their recent loss of a critical appeal over a money-laundering charge that was the backbone of their case.

It was a huge victory for Kuehne, 55, who was at the peak of his career when prosecutors indicted him in early 2008. He had served on the Florida Bar board of governors, as a past president of the Dade County Bar Association and as a member of Vice President Al Gore's legal team in the 2000 Florida presidential election dispute.

Despite what the press says, Kuehne has not earned a "huge victory" because the government finally decided to drop its meritless prosecution.  Kuehne never should have been charged in the first place.

The facts, as found by the trial court and the 11th Circuit Court of Appeals, are that Kuehne was retained by famous defense attorney Roy Black to determine whether funds to be paid Black in his defense of Colombian drug smuggler Fabio Ochoa, were not themselves drug proceeds.  After a forensic accounting in conjunction with Colombian attorneys, Kuehne determined that the funds were not criminal proceeds, and transmitted them to Black as earned fees.

The government targeted Black for accepting the money.  Black's response?  "I retained counsel who advised me it was legal to accept these funds."  The feds turned on Kuehne for money-laundering, despite Kuehne's assurances from his own Colombian counsel about the money, and more importantly, despite 18 U.S.C. § 1957(f)(1), which exempts:

"any transaction necessary to preserve a person’s right to representation as guaranteed by the sixth amendment to the Constitution."

from a criminal money-laundering charge.  You can read the 11th Circuit's vindication of Kuehne here.

While the 11th Circuit chides the government in its opinion, the court didn't go far enough.  So I will.  The government's argument was that because the Supreme Court hasn't found a sixth amendment right to protect money from civil forfeiture laws, Kuehne committed a crime by accepting the funds.

Even though the law states, explicitly and on its face, that an attorney accepting money intended as fees for criminal defense is not a money launderer.  To get around the actual text of the law, the government made the breathtaking argument that the Supreme Court, in its decision on civil forfeiture, an entirely separate act of Congress, had "nullified" the criminal law.

(I made equally brilliant arguments at the age of four.  I demonstrated that cookie-eating before dinner is acceptable because mom only said I couldn't eat a chocolate chip cookie.  Mom didn't say anything at all about eating a sugar cookie.  Unfortunately my parents couldn't understand this flawless logic, damn them.)

But it gets better.  The government ignored its own past concessions, in the very civil forfeiture case on which it relied to prosecute Kuehne, that the criminal law did exempt attorney's fees.  "Yes, I know I acknowledged that I couldn't eat chocolate chip cookies when you punished me last week, but that was last week!" the children running the Justice Department argue.

And it gets still better.  As the 11th Circuit chided the government:

As the Government concedes, accepting its interpretation of § 1957(f)(1) would read all meaning out of the exemption.

In other words, the statute doesn't mean what it says.  It's just an inkblot.  "Yeah I know mom said I couldn't eat a chocolate chip cookie before dinner dad, but she didn't mean it!"

Finally, after two years of such arguments, some grown-up has put an end to it.  While Ben Kuehne has a lot to be thankful for this holiday, he must be awfully sore that clearly established law says he can't sue the government for malicious prosecution.  Still, Kuehne's a real lawyer, a grown-up.  He wouldn't waste a court's time making childish arguments that plainly written law doesn't mean what it says it means.  Unlike his fellow lawyers at the Justice Department.

Via Brian Tannebaum, through Twitter.

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3 Comments

  1. Ken  •  Nov 25, 2009 @2:37 pm

    Wow. This is one of your better posts ever. Thanks.

    By the way — even though he can't sue for wrongful prosecution, he ought to consider a Hyde Amendment motion.

  2. David Schwartz  •  Nov 25, 2009 @7:39 pm

    There was yet another absurd argument they made. Paraphrasing, the law exempted: “any transaction necessary to preserve a person’s right to representation as guaranteed by the sixth amendment to the Constitution.” The Justice Department argued that this particular transaction was not required under the sixth amendment and therefore this exception didn't apply.

    After all, had something stopped this particular transaction, he could have simply paid the same attorneys with a different transaction, right? Maybe sent the money through someone else. Maybe paid them tomorrow.

    So since this particular transaction was not required under the sixth amendment (any similar one would have done, right?) the exemption doesn't apply.

    And I agree, this is preposterous stuff. A Hyde Amendment motion is entirely appropriate.

  3. Linus  •  Nov 28, 2009 @3:17 pm

    If the government acknowledges that their interpretation would render the statute a nullity, how is that interpretation a good faith argument for the extension or modification of existing law?