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Judge Cooke grants Ben Kuehne's motion to dismiss Count 1

Huge news during this holiday week. Big props to Judge Cooke for doing the right thing and for authoring a beautifully written a href="http://online.wsj.com/public/resources/documents/bkorder.pdf"13-page order/a. I earlier had covered the oral argument of the motion hearing a href="http://sdfla.blogspot.com/2008/11/ben-kuehne-motions-hearing-before-judge.html"here/a. The issue as I explained then was:br /br /emThe issue on Count I is whether an attorney (Ben span class="blsp-spelling-error" id="SPELLING_ERROR_0"Kuehne/span) 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."/embr /br /Judge Cooke found that Ben span class="blsp-spelling-error" id="SPELLING_ERROR_1"Kuehne/span could not be prosecuted because the funds were for span class="blsp-spelling-corrected" id="SPELLING_ERROR_2"legitimate/span legal services:br /br /emThe Indictment states that the Defendants, including Velez and span class="blsp-spelling-error" id="SPELLING_ERROR_3"Saldarriaga/span 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.?br //embr /Judge Cooke makes clear that her Order does not provide blanket protection for money laundering by lawyers:br /br /emThe 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 andbr /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./embr /em/embr /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).

Full post as published by Southern District of Florida on December 22, 2008 (boomark / email).