In a case of first impression, a federal appellate court ruled Monday in the prosecution of prominent Miami attorney Ben Kuehne that criminal defense lawyers can't be charged with taking ill-gotten proceeds from defendants as legal fees.
The 11th U.S. Circuit Court of Appeals affirmed a decision by U.S. District Judge Marcia G. Cooke, who dismissed a money-laundering conspiracy count against the attorney for vetting money that went to Miami celebrity attorney Roy Black to defend Colombian drug kingpin Fabio Ochoa.
Kuehne, who has represented a number of high-profile clients including Vice President Al Gore in the 2000 presidential recount, was charged along with two Colombians. Prosecutors charged Kuehne knowingly sent drug money through Colombia's black market peso exchange to pay Black and his team.
Cooke ruled in December that defense attorneys are exempt from prosecution under the money-laundering statute. Congress in 1988 carved out an exemption for lawyers to protect a defendant's Sixth Amendment right to counsel of their choice.
The Justice Department argued a U.S. Supreme Court decision in a forfeiture case negated the exemption and it didn't cover any fees involving tainted money. But 11th Circuit Judge Rosemary Barkett, writing for the unanimous panel, rejected the argument in a nine-page opinion.
"We do not believe Congress intended such an absurd result, which nullifies the provision and divorces it from its statutory context, thereby violating basic canons of statutory construction," Barkett wrote.
She emphasized Cooke was "eminently correct" in her decision.
Appellate Judge Frank Hull and U.S. District Judge Gordon Quist, a visiting jurist from Grand Rapids, Mich., concurred.
John Nields, Kuehne's lead attorney with the Howrey firm in Washington, D.C., said he was gratified by the court's decision.
The appellate court also is considering Cooke's decision to throw out all charges against co-defendant Gloria Velez, a Colombian accountant employed by Kuehne. Cooke ruled Velez's right to a speedy trial had been violated.
Also charged in the case is Colombian attorney Oscar Saldarriaga.
Miami criminal defense attorney David O. Markus, who helped write an amicus brief in the appeal for the National Association of Criminal Defense Lawyers, said the decision "sends the message loud and clear to the government that it cannot trample on the Sixth Amendment and get away with it."
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