The indictment of Ben Kuehne sent shockwaves through the Miami bar which could be felt around the country.  This was the guy who everyone agreed was as straight as an arrow, as trustworthy as they come, and yet here he was, the target of a federal indictment for having been retained to vet the payment of legal fees for Roy Black from accused Medellin drug lord, Fabio Ochoa Vasquez.  The feds claimed that Ben gave the fee a clean bill of health in exchange for $200,000, and that he knew the money was dirty.

Well, that was then.  This is now.  Having impugned Ben Kuehne, not to mention having cost him no doubt a small king’s ransom to defend, the feds are whistling a different tune.  According to the New York Lawyer,

In a surprising turnabout, federal prosecutors who indicted prominent Miami attorney Ben Kuehne on money laundering charges now say they plan to offer no trial evidence directly linking him to drug profits.

Instead, the government will offer testimony to show that millions of dollars used to pay Colombian druglord Fabio Ochoa’s high-powered defense team was tainted by the family’s legendary cocaine smuggling network.

This was revealed in the government’s response to an order to provide a bill of particulars.  For those of you who don’t do federal defense, this won’t mean a great deal, but let me explain.  In federal court, a bill of particulars is like the holy grail of discovery.  Ordered rarely, it compels the government to actually provide substantive information to flesh out its vague rhetorical claims, almost invariably insufficient to allow defense counsel to prepare adequately to defend.  But while there’s a rule allowing it, the government fights it tooth and nail.  And the courts, invariably reluctant to force the government to disclose its hand, looks seriously askance at demands for the government to put its allegations of fact in writing.

The gist of the government’s opposition is that it will “unduly prejudice” them to disclose the facts it alleges that constitute the crime.  In plain English, this means they won’t be able to sandbag the defense by surprising it at trial with allegations that come out of the blue.  That would make it a fair fight, and the government hates a fair fight.  It could lose.

But in Ben Kuehne’s case, it was much worse than a mere fair fight.  It was an indictment with nothing behind it. 

“With respect to the remaining wire transactions, the government represents that it does not currently intend to introduce evidence directly tracing narcotic sales to specific assets that resulted in wire transfers to defendant Kuehne’s attorney trust account,” the bill of particulars said.

Even here, the government is disingenuous, saying “it does not currently intend,” as if it was doing Ben a favor and has great proof, but just doesn’t feel like using it.  For now. 

It now appears that while the government has evidence to show that Ochoa’s “millions” (ah, to be Roy Black) was, in fact, laundered drug proceeds, there is no evidence to show that Ben Kuehne knew that to be the case and thus, by giving his seal of approval to Black, intended to launder the funds himself.  In other words, the government now claims that Kuehne was simply mistaken.  Oops.

Ironically, the government’s evidence that the money was dirty comes from its own operations, pumping traceable money into drug and laundering scheme and watching where it came out.  Just in case you’re wondering where the government got the cash to do this, check your pockets.

The funds funneled from our own government through the Ochoa family that wound its way back to Ben Kuehne and ultimately Roy Black were well masked to show that they came from the family’s legitimate businesses, including the sale of Paso Fino horses.  The government knew better, but Ben Kuehne didn’t.

“You can be wrong giving an opinion, even tragically wrong,” Coffey said. The attorney said it is ironic that the clearest traceable illegal funds are the government’s own money from the drug stings. He said it’s not illegal to be fooled by your own government.

Having now disclosed that the government has no evidence of criminal conduct by Ben Kuehne, it begs one question:  Why are they still proceeding to trial?  Since there’s no pre-trial motion to dismiss under the federal rules, there’s nothing further for Kuehne’s defense team to do until their first chance for a trial order of dismissal.  But given the bill of particulars, it appears that they have no case against Kuehne.

You may wonder whether they plan to dismiss the case next week, or next month, before trial.  Perhaps, though the normal, and smarter, course would have been to dismiss rather than provide the bill of particulars. 

The only thought that comes to mind is that this prosecution is being continued to make clear the burden that the government intends to place on the back of lawyers, even lawyers with the most impeccable credentials for honesty and integrity, who undertake to help criminal defense lawyers and their clients. 

The message: Don’t think you’re going to help notorious defendants and get away clean.

I hope that no lawyer of integrity is going to let the government scare them off.