Of all the lawyers who could find themselves in this position, Ben Kuehne is probably the one you would least expect.  Under indictment for having been retained by Roy Black to vet the source of legal fees from Fabio Ochoa, the government is now under scrutiny for it’s prosecution.

Via Miami criminal defense lawyer Brian Tannenbaum, Southern District of Florida Judge Marcia Cooke held a hearing on the defense motion to dismiss the charge under 18 USC §1957, which makes it unlawful to engage in a monetary transaction in property derived from unlawful sources. 

Consider the implications of this for private criminal defense lawyers.  We represent people accused of crimes.  Sometimes, our clients are guilty.  They pay a legal fee to us for our representation.  Sometimes, the fee is derived from the crime that forms the reason for their needing us.  I know, but it can happen.

Based upon most of 18 USC §1957, it would seem that the government will need to build a great big prison just to hold all us criminal defense lawyers.  After all, accepting legal fees derived from unlawful sources is an occupational hazard.

But Congress, in its wisdom (a painful thing to write), recognized that the basic crime to be addressed in §1957 could have some slightly deleterious impact on the representation of criminal defendants, and so included subdivision (f)(1).

the term “monetary transaction” means the deposit, withdrawal, transfer, or exchange, in or affecting interstate or foreign commerce, of funds or a monetary instrument (as defined in section 1956 (c)(5) of this title) by, through, or to a financial institution (as defined in section 1956 of this title), including any transaction that would be a financial transaction under section 1956 (c)(4)( of this title, but such term does not include any transaction necessary to preserve a person’s right to representation as guaranteed by the sixth amendment to the Constitution;

Congress specifically excepted any transaction necessary to preserve a person’s right to representation.  So Ben tips is hat, thanks the judge for her time and goes out for a cocktail with Roy to celebrate reason prevailing?  Not so fast.

With a hat tip to David Markus on behalf of the NACDL, which provided amicus support, and running description of the hearing at Southern District of Florida Blog, we learn that one branch of our government is trying to convince another branch of our government that a third branch of our government should be ignored.

Judge Cooke started the hearing by asking the prosecutor to present his argument on the defense motion to dismiss because she wanted to know if he was really taking the position that 1957(f) was meaningless. The prosecutor answered YES! The prosecutor took the position that as a matter of law the motion should be denied because 1957(f) does not afford any protection to lawyers. He then argued that as a matter of fact, Kuehne’s actions were not “necessary” to represent Ochoa and therefore not covered by the statute. And finally, he argued that if the judge disagreed with 1 & 2, she should at least present the question to a jury because 1956(f) is an affirmative defense.

Well that doesn’t sound good at all, so let’s put it under the microscope and see how it bears out.

Proposition 1:  §1957(f)(1) is meaningless. 

It’s hard to stifle a chuckle on that one.  But silly as the proposition is, the defense took the position that  it provides absolute protection to lawyers for taking a legal fee under 1957, which presents a problem as well, that being the very problem that Roy Black found himself in when he hired Ben to vet his legal fee.  What, one wonders, if the lawyer was fully aware that he was receiving tainted funds and used the escape clause of subdivision (f)(1) to actually launder money? 

Kuehne’s lawyer, John Nields, offered the only reasonable response to this dilemma: The lawyer could be held criminally liable for his wrongdoing under any number of the overlapping criminal laws of our nation, just not 1957.  Nields wins.

Proposition 2:  Kuehne’s actions were not “necessary” to Ochoa’s representation, and therefore don’t deserve 1957(f)(1) protection.  

This is a more nuanced argument then would appear on its surface.  Bear in mind that Ben Kuehne was retained by Roy Black, not Fabio Ochoa, to vet the legal fee that Ochoa, reputed head of the Medellin cartel, sought to pay Black.  Ben received almost $200,000 to count the bills, which should give you a decent idea of how Black was doing on the case.  But his job was not to defend Fabio Ochoa, but to protect the fee that Black was to receive from Ochoa from potential forfeiture.  In other words, Black didn’t want to get stuck on the case without getting paid, which I consider to be a perfectly reasonable position.

But what does this mean for Kuehne’s protection under 1957(f)(1)?  Is he entitled to protection for preserving a defendant’s right to representation under the 6th Amendment, or was he serving some other purpose?  While there are arguments that could go either way, it strikes me that Ben Kuehne’s involvement bore a direct causal connection to Fabio Ochoa’s exercise of his 6th Amendment right to counsel.  Without assurance that the fee paid would not be subject to subsequent forfeiture, Roy Black, Ochoa’s counsel of choice, would not have accepted the retainer and Ochoa would have been denied counsel. 

That Black used another attorney, Ben Kuehne, to perform the function of ascertaining the source of the fee, is irrelevant, and Ben is clothed in the same protection provided Black, as he was performing a critical function in the fulfillment of Ochoa’s exercise of his right to counsel.  Defense wins.

Proposition 3:  Whether Ben Kuehne should be protected under §1957(f)(1) is a question for a jury, as it is an affirmative defense.

Let’s give this one a thought for a second.  A criminal defense lawyer gets paid a fee to defend the accused.  The government indicts and prosecutes, and there’s nothing to be done about it until the case goes to trial, whereat the lawyer can assert the defendant’s constitutional right to counsel as an affirmative defense.  What’s wrong with this picture?

This is just sheer silliness, and would place every criminal defense lawyer on trial in essentially every case, awaiting their chance to proffer the affirmative defense that they are lawyers.  This would be the end of the existence of criminal defense lawyers, which might be applauded by some but would make for terrible backlogs in criminal courts everywhere.  This one doesn’t deserve much analysis.  Defense wins.

So there you have it, my fair and balanced analysis of the defendant’s motion to dismiss and the government’s opposition.  If any lawyer is deserving of the “fullest” consideration of the court, it’s Ben Kuehne.  Let’s see what Judge Cooke has to say about it.