Few of us expected a present from the former head of he Medellin cartel this holiday season, but Fabio Ochoa gave us one anyway.  Southern District of Florida Judge Marcia Cooke dismissed the first count against Ben Kuehne, the squeakiest clean lawyer in Florida, charging him with a money-laundering conspiracy for vetting the funds paid by Ochoa to Roy Black and concluding they were legitimate, when the government thought otherwise.

The defense moved to dismiss pursuant to 18 USC §1957(f)(1), and Judge Cooke agreed, holding that “the funds were for legitimate legal services.”  Despite the simple language, this holding is of huge importance for the criminal defense bar, and hence a present for all of us.

I can’t help but wonder whether this ruling might have been different had the government not made the horrendous tactical error of prosecuting Ben Kuehne for the crime, rather than someone whose reputation for integrity is less stellar.  While the law would have been no different, the fact that the government picked someone like Ben Kuehne as the target, creating such a huge groundswell of support for him and picking a lawyer who was so capable of putting together as strong a defense as possible, was a gift to the rest of us that rarely occurs.

Judge Cooke further held :

The 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 and concealment money laundering. There is no exemption contained in § 1956 for transactions necessary 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.

This, of course, is entirely appropriate.  Lawyers are no more entitled to commit crimes, including money laundering, than anyone else.  But we should not be put at risk by simply accepting a fee for representing criminal defendants.

It’s been almost a year since news of Ben’s indictment broke, and has no doubt been a very unpleasant time for him.  Judge Cooke’s decision no doubt will make this a special holiday in the Kuehne house.  But for many criminal defense lawyers, the threat of prosecution for doing the job we are here to do has also haunted us over the past year. 

While we are happy to play by the rules, we need to know what the rules are.  This indictment changed them, and Judge Cooke’s decision has now changed them back.  With this decision, we have returned to some semblance of equilibrium, so criminal defense lawyers can again be retained to represent defendants without fear of prosecution.

This is a great victory for Ben, and through him, all criminal defense lawyers, coming to us via the largess of Fabio Ochoa.  Thanks, Fabio.