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September 2, 2010 |
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| September 21, 2009 |
By: John Pacenti |
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n the federal case against Ben Kuehne, the defense has successfully undermined the government’s foundation.
After suffering several defeats, the Justice Department hopes to reinforce its case starting today by turning back a defense request to exclude testimony against the prominent Miami lawyer by a retired Drug Enforcement Administration agent on Colombia’s black market peso exchange.
On Wednesday, arguments are set before the 11th U.S. Circuit Court of Appeals on a ruling by U.S. District Judge Marcia Cooke dismissing a money-laundering conspiracy count against Kuehne based on a congressional exemption protecting criminal defense attorneys. It’s a big issue not only for Kuehne but for all of the criminal defense bar.
“This is probably the single most outrageous prosecution that has happened in South Florida,” said Miami criminal defense attorney Richard Sharpstein, a partner with Jorden Burt.
The National Association of Criminal Defense Lawyers has filed an amicus brief, arguing the Sixth Amendment protects the relationship between criminal defendants and their chosen counsel from extreme government interference.
“Congress understood that threat of criminal prosecution will deter criminal defense lawyers from representing clients in a broad range of circumstances,” Miami attorney David O. Markus wrote in the brief.
He knows about government interference. In a recent prescription drug case defended by Markus, prosecutors acting without authorization arranged to tape his conversations with a witness. As a result, U.S. District Court Judge Alan Gold reprimanded the U.S. Attorney’s Office and ordered it to pay more than $600,000 to cover the legal fees and costs of Markus’ acquitted client.
If the Justice Department succeeds in reversing Cooke’s decision, “criminal defense lawyers simply will refuse to represent defendants if doing so will subject the lawyers themselves to potential criminal liability,” Markus’ brief said.
Today’s hearing centers on planned expert testimony by a retired DEA agent on the black market peso exchange, a parallel currency exchange that Kuehne used to move money from Colombia to the United States to pay the legal fees of celebrity lawyer Roy Black, who was defending Medellin cartel kingpin Fabio Ochoa. Former agent Donald Semensky is prepared to testify that drug traffickers use a loose network of money brokers to repatriate their profits. Kuehne’s legal team maintains the exchange is used in legitimate Colombian business circles because the Latin American country keeps such a tight rein on currency.
The criminal nature of the exchange as alleged by prosecutors is central to the government’s case against Kuehne, a well-respected litigator known for high-profile cases including his work for Vice President Al Gore in the 2000 presidential recount. The government intends to show Kuehne knowingly broke the law when he moved $5.2 million into accounts to pay Ochoa’s defense team led by Black.
Prosecutors allege 46 of 57 payments that passed through Kuehne’s trust account also moved through the black market exchange.
Kuehne was charged last year with washing Ochoa money through wholesale flower exporter Hernando Saravia, who was a DEA informant, exchanging $1.8 million in pesos for dollars used in U.S. drug stings.
Kuehne’s attorneys — Jane Moscowitz of Moscowitz & Moscowitz in Miami and John Nields of the Howrey firm in Washington — declined comment.
Miami criminal defense attorney Joel Hirschhorn, a name partner with Hirschhorn & Bieber in Coral Gables who is not part of the Kuehne case, said Latin American businesses often have no choice but to turn to the secondary market. “Every business in South America [that] does business in the U.S. has to go to the black market peso exchange because of the currency restrictions,” he said. “The U.S. doesn’t understand this or doesn’t want to understand it because it is so blinded by this largely unsuccessful war on drugs.”
So, how hard is it for the defense to get an expert like Semensky removed from the case? His expertise doesn’t come from a classroom or laboratory but from the real world, working real cases. Cooke has wide discretion to allow the testimony and leave the assessment up to a jury.
Paul Schwiep, a Miami attorney who has written on expert testimony, said federal judges take their gatekeeper function seriously to prevent the admission of testimony from unreliable experts. They assess an expert witness based on a number of factors, such as whether the theories presented are generally accepted and published in peer-reviewed articles.
“Where the testimony is based on expert’s experience, the federal judge has broad discretion,” said Schwiep, a partner at Coffey Burlington. “In civil and criminal federal trials, judges have tightened admissibility to ensure expert testimony has a indicia of reliability for a jury to consider.”
The appellate hearing is an outgrowth of the Justice Department’s long-held disdain for a 1988 congressional exception in money-laundering laws protecting defense lawyers.
“The Sixth Amendment does not guarantee the right to use criminally derived proceeds to pay for legal representation,” Teresa A. Wallbaum, a Justice Department appellate counsel, wrote in her appellate brief.
The department argues the U.S. Supreme Court nullified the exception in a number of decisions, but it doesn’t explain why Congress never amended the provision. Kuehne’s attorneys maintain authorities can force a criminal attorney to forfeit fees paid from ill-gotten gains but a lawyer cannot be criminally prosecuted. That said, numerous criminal defense attorneys have been convicted of drug money laundering.
The government will argue at a second 11th Circuit hearing Wednesday that Cooke erred in dismissing charges on speedy trial grounds against co-defendant Gloria Florez Velez, an accountant who assisted Kuehne in Colombia.
Kuehne currently has one co-defendant, Oscar Saldarriaga Ochoa, a Colombian lawyer and part of the drug trafficker’s family.
Hirschhorn said, if true, Kuehne’s decision to rely on Saldarriaga to help vet the money may have been his undoing, calling into question whether Kuehne’s process for making sure money going to Black was untainted and independent of the notorious deeds of the Ochoa family.
Sharpstein said he expects the appellate court to uphold Cooke’s ruling in favor of criminal defense attorneys. What is surprising, he said, is that the Justice Department under President Obama has not pulled the plug on the Kuehne case.
“The safe harbor for criminal defense attorney needs to be protected,” Sharpstein said. “It’s unfortunate Ben has to be the one taking the brunt of this.”
John Pacenti can be reached at john.pacenti@incisivemedia.com or at (305) 347-6638.
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