Going after my post yesterday about the Megatrial problem, the Texas Tornado, Mark Bennett, put the problems of retaining counsel in context with my earlier commentary about the world of assigned counsel.  The problems in the rarified world of big cases and big defendants are below the radar of criminal defense lawyers.  Not that they don’t want to be there, and hope to be there someday, but they aren’t there yet.

Now comes the apocryphal tale of Ben Kuehne.  Ben Kuehne was one of the paragons of the Miami bar, the kind who was named to blue ribbon committees, the kind who represented Al Gore when chads were hanging.  He wore a bow tie, and nobody made fun of him for it.  It was because of his impeccable reputation that he was asked to vet the payment of legal fees for Roy Black, another big name, from a client, accused Medellin drug lord, Fabio Ochoa Vasquez.

Representing a fellow like Fabio Ochoa is like playing Russian Roulette.  But Roy Black recognized that he was in a dangerous position, so he turned the a lawyer who was known by all to be so squeaky clean that no one could question his bona fides.  Or so Roy thought.

Before turning back to Ben, let’s remember that even Fabio Ochoa is entitled to be represented by counsel in a criminal prosecution in the United States.  He is not entitled, however, to use the proceeds of a crime to do so, but he’s not yet been convicted of a crime.  This is one of those vicious circle problems, where the government uses its vast power to prevent a defendant from using his funds to pay for counsel under the guise that its criminal proceeds, then denies him counsel of choice in a huge case, then gets to convict him, thus proving it was right all along.

Now back to Ben.

The indictment revives the issue of the legal suitability of money accepted by criminal defense attorneys from clients accused of drug trafficking and money laundering. Medellin kingpin Fabio Ochoa faced charges of plotting to smuggle 30 tons of powder cocaine per month into the United States from 1997 to 1999. Since it’s illegal to accept funds from a criminal enterprise, Black paid Kuehne $197,300 to vet money coming from horse and cattle holdings of the Ochoa family and property offered to cover Black’s fees.

Roy Black needed a lawyer of unquestioned integrity to insulate himself from risk, both of losing his legal fee to forfeiture as well as potential indictment for laundering Ochoa’s drug money.  It was a very responsible way of handling the problems incumbent in representing someone like Ochoa.  And there was no better choice for the job than Ben Kuehne.

Kuehne’s investigation played out in an elaborate procedure prior to Ochoa’s trial in front of U.S. District Judge K. Michael Moore in 2003. The attorney produced six opinion letters concluding funds transferred to Black for Ochoa’s defense were legitimate, the six-count indictment said. But prosecutors charge almost $1 million tracked to Black ran through five federal undercover operations that intercepted drug money in Miami, New York and Houston in 2002.

Notably, nothing here suggests that Ben Kuehne knew, or had reason to know, that any of the funds that passed from Ochoa to Black ever passed through any covert federal operations.  Still, the government claims that he “knew” the funds were tainted.  So Ben Kuehne stands indicted for money laundering $5.2 Million for the Medellin cartel.  Not a bad legal fee, I might add.

At his arraignment, Ben Kuehne stood before the court in a blue suit, with his trademark bow tie and an American flag pin in his lapel. 

Now back to the new case in Brooklyn and Queens, designed to break the Gambino crime family, as claimed by the government.  Part of the design of this megatrial is to preclude any of the defendants from being able to use their alleged criminal proceeds to retain counsel.  Bennett asks:

But what if you’re an alleged crime boss, and you don’t have a million dollars hidden under the birdseed?

Tony Soprano kept some cash hidden in a garbage pail of birdseed in the back yard, but that wouldn’t help him here.  First, these are real people, not TV mobsters.  Second, even if the Soprano scenario were real, it wouldn’t help. 

The constraints on accepting criminal proceeds precludes anyone but a fool from taking bundles of cash to represent anyone in this case.  The legal fees for these defendants will be subject to intense scrutiny.  Lack of compliance, or worse yet, obvious laundering, will land the lawyer in the cell next to the defendant. 

So it isn’t just a matter of having enough cash, but having legitimate funds (at least in the eyes of the government) paid in compliance with IRS regulations sufficient to cover the costs.  Hey, this isn’t a DWI case in Texas.  This is the big time.  It’s a trap for the unwary criminal defense lawyer, who may have never experienced a degree of scrutiny like this before.  It’s a trap for those who have.

When criminal defense lawyers become engaged in major cases, they play by a very strict set of rules, lest they put themselves at risk for doing their job too well.  Sometimes, no matter how hard we try to play by the rules, the government will come after us anyway. 

Just ask Ben Kuehne.