Appeals Court Upholds Dismissal of Key Charge Against Miami Lawyer

[WSJ_law_blog]

It’s been a long and strange trip, but it finally might be time to put the lid on the Ben Kuehne saga. On Monday, a three-judge panel of the Eleventh Circuit sided with a lower court ruling from earlier this year which dismissed the main count of the indictment against the prominent Miami lawyer. Click here for the opinion ; here for the AP story. Click here and here for earlier LB posts on Kuehne.

Kuehne was indicted last year on money laundering charges arising out of his writing opinion letters that Colombian drug kingpin Fabio Ochoa had enough money free from the taint of drug trafficking to pay some $5.2 million in legal fees. Kuhene was paid about $200,000 by Miami attorney Roy Black’s law firm and others involved in Ochoa’s defense.

A portion of the funds were traced to a businessman named Hernando Saravia, who transferred some of the purportedly legitimate cash from Ochoa to Black. But Kuehne didn’t know that Saravia had been cooperating with federal prosecutors and that some of the money was from illegal drug proceeds being handled by undercover U.S. agents.

Late last year, Miami federal judge Marcia Cooke found that Kuehne could not be prosecuted because the funds were for legitimate legal services. On Monday, the Eleventh Circuit largely agreed with Cooke, finding she was “eminently correct” to dismiss the unprecedented indictment against Kuehne and two others on money laundering charges under the federal statute. The panel concluded that Kuehne was protected by an exemption in federal money-laundering statutes carved out by Congress for defense attorneys in 1988.

According to the AP, the Justice Department declined to comment, but it had said in a statement last year that it “approaches with great care” any possible prosecution of a defense lawyer. In this case, though, it said prosecutors were confident they had clear evidence of wrongdoing against Kuehne.

The ruling Monday was welcomed by defense lawyers, wrote the AP, who had feared that a successful prosecution of Kuehne would force them to stop taking cases involving defendants whose financial situations are murky.

“This is a huge win not just for Ben Kuehne but for criminal defense lawyers,” said David O. Markus, a Miami attorney who helped write a friend of the court brief on Kuehne’s behalf for the National Association of Criminal Defense Lawyers. “It sends the message to the government that criminal defendants are entitled to representation and criminal defense lawyers are entitled to represent clients without having this dark cloud hanging over their heads.”

Kuehne still faces a separate money laundering charge, but defense attorneys say it will be harder to prosecute because it carries a higher standard of proof.